JEFFERS v. UNITED STATES
No. 10499
United States Court of Appeals District of Columbia Circuit
Argued June 29, 1950. Decided Dec. 7, 1950.
Writ оf Certiorari Granted March 26, 1951. See 71 S.Ct. 570.
Joseph F. Goetten, Asst. U. S. Atty., with whom George Morris Fay, U. S. Atty., Arthur J. McLaughlin and Joseph M. Howard, Assts. to U. S. Atty., were on the brief, for appellee.
Before STEPHENS, Chief Judge, and PRETTYMAN and FAHY, Circuit Judges.
FAHY, Circuit Judge.
The appellant was convicted in the District Court of having purchased, sold, dispensed and distributed cocaine and codeine sulphate not in and not from the original stamped package,
The evidence was obtained as follows: A reputed dealer in narcotics approached the house detective of a Washington hotel and offered him $500 to be let into a room in the hotel. He said that Jeffers, the appellant, had “stached” narcotics there. The detective told him to come back later. He then called a member of the Narcotics Squad of the Metropolitan Police to come to the hotel for some information. Upon his arrival the detective told him what had occurred. The two went to the assistant manager of the hotel, secured a key to the room, or apartment as it is sometimes called, and entered it without a warrant of any kind. There they found in a box in the closet 19 bottles of cocaine without the requisite Federal stamps. It was the apartment of two aunts of Jeffers, one of whom testified. She said that appellant did not occupy the room but did occupy another room in the hotel and had a key to their apartment with permission to use it whenever he saw fit. They paid for the care of his child at another place and he often came into the apartment when they were not there to leave money for the care of the child. She further testified the appellant had no permission to store narcotics in the apartment and she did not know that he had done so. It was stipulated that if called the other aunt would have testified to the same effect.
The search and seizure were unlawful. The
When an officer without a warrant of any kind and withоut permission unlocks
The Government, assuming arguendo the illegality of the search, disputes the standing of the accusеd to object to the evidence obtained. It is said no right of privacy of appellant protected by the
An accused does not have standing to prevent the admission of evidence obtained by an unlawful search and seizure which did not infringe his own personal rights protected by the Amendment. The constitutional provision against unreasonable searches and seizures does not in terms bar the admission of evidence obtained by its violation. The exclusionary rule as applied in the federal courts was formulated by the judiciary in aid of the effectiveness of the Amendment, Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; see Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; but is available only to the victim of the unconstitutional conduct. “* * * the federal courts in numerous cases, and with unanimity, have denied standing to one not the victim of an unconstitutional search and seizure to object to the introduction in evidence of that which was seized. * * *” Goldstein v. United States, 1942, 316 U.S. 114, 121, 62 S.Ct. 1000, 1004, 86 L.Ed. 1312; see, also, Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 149 F.2d 381, certiorari denied sub nom O‘Kelley v. United States, 1945, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429. Rule 41(e) of the Federal Rules of Criminal Procedure,
Where the premises are those of the accused he has the requisite standing. Harris v. United States, supra; McDonald v. United States, supra; Johnson v. United States, supra.4 Here, however, the premises were not appellant‘s. While he had certain rights therein we believe the question of his standing to object to the evidence turns upon his claim of ownership of the evidence seized rather than upon an interest in the premises searched.
In most of the decided cases objection to the seized evidence has rested upon an interest in the premises unlawfully searched. Yet the rule has been stated often in terms which authorize the objection to be made as well upon the basis of ownership in the property unlawfully seized.
“* * * the settled doctrine is that objection to evidence obtained in violation of the prohibitions of that [Fourth] Amendment may be raised only by one who claims ownership in or right to possession of the premises searched or the property seized, * * *” [citing cases, including Shore v. United States, 60 App.D.C. 137, 49 F.2d 519]. Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 85, 149 F.2d 381, 384.
“* * * This court is committed to the doctrine that only the owner or possessor of property is aggrieved by the illegal search and seizure of it. Connolly v. Medalie, 2 Cir., 58 F.2d 629. * * *” United States v. Stappenback, 2 Cir., 1932, 61 F.2d 955, 957.
In Shore v. United States, supra, objection of the defendants was overruled, in the court‘s language, “for the simple reason that, since they do not claim property in the liquor or the trunks, no constitutional rights of theirs were invaded. The guaranties of the
See, also, to similar effect, Shields v. United States, 1928, 58 App.D.C. 215, 26 F.2d 993; Nunes v. United States, 1 Cir., 1928, 23 F.2d 905; Klein v. United States, 1 Cir., 1926, 14 F.2d 35; Matthews v. Correa, 2 Cir., 1943, 135 F.2d 534, 537; Chepo v. United States, 3 Cir., 1930, 46 F.2d 70; Kitt v. United States, 4 Cir., 1942, 132 F.2d 920; Grainger v. United States, 4 Cir., 1946, 158 F.2d 236; Goldberg v. United States, 5 Cir., 1924, 297 F. 98; Remus v. United States, 6 Cir., 1923, 291 F. 501, 511; McMillan v. United States, 8 Cir., 1928, 26 F.2d 58; Armstrong v. United States, 9 Cir., 1926, 16 F.2d 62, 65; Lewis v. United States, 9 Cir., 1925, 6 F.2d 222.
In Pielow v. United States, 9 Cir., 1925, 8 F.2d 492, 493, the premises invaded were not those of the person to whom the seized papers and books belonged and who was on trial. They had been entrusted, for convenience in posting them, to the one from whose possession they were taken. In sustaining the objection to their admission, the court said, “*** The Constitution protects against unreasonable search and seizure, not only their ‘persons’ and ‘houses,’ but the people‘s ‘papers and effects.’ **”
See, also, United States v. De Bousi, D.C. D.Mass., 1929, 32 F.2d 902, where the court said: “* * * I do not find in any of the cases where the evidence obtained upon wrongful search and seizure has been admitted that the defendant had or asserted any rights in the premises searched or in the рroperty seized. * * *” 32 F.2d at page 903.
The Government cites Gibson v. United States, supra, in support of the position that the accused who objects must have rights in both premises and property. As we have seen, the language of the opinion is to the contrary. It is true that Gibson‘s ownership of the marihuana cigarette seized did not cause its exclusion as evidence against him, but the opinion shows that the cigarette which fell on the floor when Gibson took a handkerchief from his pocket, was seized in connection with his arrest for a crime committed in the presence of the officers. This made its seizure lawful, United States v. Rabinowitz, supra. In the present case the seizure was in no manner incident to an arrest.
Cases such as Ingram v. United States, 9 Cir., 1940, 113 F.2d 966; Connolly v. Medalie, 2 Cir., 1932, 58 F.2d 629; Bushouse v. United States, 6 Cir., 1933, 67 F.2d 843; Holt v. United States, 6 Cir., 1930, 42 F. 2d 103, and In re Dooley, 2 Cir., 1931, 48 F.2d 121, are instances in which the evidence was not suppressed, but in none of these cases did the one who sought suppression own either the premises searched or the property seized.
We believe the correct rule to be that one who seasonably objects to the use in evidence agаinst him of property he owns which has been seized as the fruit of an unlawful search or otherwise in violation of the
The question remains whether statutory provisions that unstamped narcotics are subject to seizure and forfeiture2 and “* * * no property rights shall exist in any such * * * property”3 deprived appellant of ownership of the things seized and thus left him without standing to obtain suppression of the evidence. The statutory provision negating property rights in such goods is immediately followed by the sentence, “A search warrant may issue as provided in title XI of the Act of June 15, 1917, 40 Stat. 228 (U.S.C., Title 18, §§ 611-633), for the seizure of such liquor or property. * * *” (Footnote 3, supra). This recognition of the application of the Amendment to contraband articles indicates no intention to weaken its effectiveness. The statutes cited permit confiscation of the dangerous material and preclude repossession of it by one who might claim it; but the right to obtain its exclusion as evidence on a trial does not depend upon the right to retain or to repossess. Trupiano v. United States, 1948, 334 U.S. 699, 710, 68 S.Ct. 1229, 92 L.Ed. 1663; Agnello v. United States, 1925, 269 U.S. 20, 34, 46 S.Ct. 4, 70 L.Ed. 145.
Reversed.
STEPHENS, Chief Judge, concurring.
The right of the people under the
caine had not secured from a magistrate the warrant to search and seize required by the
The contention of the Government that in view of the statutes cited above the appellant had no rights of ownership or possession in the packages seized, and, therefore, had no standing as a person aggrieved to invoke the protection of the
In Dodge v. United States, a motor boat seized by a police officer acting without authority later came into the custody of a federal prohibition director and was subjected to a condemnation proceeding in the United States District Court for the District of Rhode Island. That court at the instance of the owners of the motor boat dismissed the libel because of the unlawful seizure. That dismissal was reversed by the Circuit Court of Appeals for the First Circuit and the decision of the Court of Appeals was affirmed by the Supreme Court. That Court in an opinion written by Mr. Justice Holmes said:
The owner of the property suffers nothing that he would not have suffered if the seizure had been authorized. However effected, it brings the object within the power of the Court, which is an end that the law seeks to attain, and justice to the owner is as safe in the one case as in the other. The jurisdiction of the Court was secured by the fact that the res was in the possession of the prohibition director when the libel was filed. The Richmond, 9 Cr. [Cranch] 102 [3 L.Ed. 670]. The Merino, 9 Wheat. 391, 403 [6 L.Ed. 118]. The Underwriter [2 Cir.], 13 F. (2d) 433, 434. We can see no reason for doubting the soundness of these principles when the forfeiture is dependent upon subsequent events any more than when it occurs at the time of the seizure, although it was argued that there was a difference. They seem to us to embody good sense. [272 U.S. at 532, 47 S.Ct. at 192]
But the Court went on to say:
The exclusion of evidence obtained by an unlawful search and seizure stand оn a different ground. If the search and seizure are unlawful as invading personal rights secured by the Constitution those rights would be infringed yet further if the evidence were allowed to be used. [272 U.S. at 532, 47 S.Ct. at 192]
In United States v. Maggio, Maggio and another were charged in the United States District Court for the Western District of New York with knowingly transporting intoxicating liquor fit for beverage purposes. The liquor and a truck had been seized, concededly, without probable cause, and the defendants filed a motion to suppress and for the return of both the alcohol and the truck. The court ruled that the evidence must be suppressed and the truck returned to them. There was left in the case for determination the question whether or not the alcohol should be returned. The court ruled that it should not, that retention of the liquor by the Government was not in violation of either the Fourth or the Fifth Amendment to the Constitution, and that “suppression of the evidence of the seizure prevents proof of all acts growing out of suсh seizure and thus affords full protection given by the
In United States v. Eight Boxes, goods subject to forfeiture because imported contrary to
the United States chose to adopt the seizure and therefore the court had jurisdiction of the merchandise and could properly declare it forfeited under Section 593 of the Tariff Act as smuggled and contraband goods. [105 F.2d at 898]
The court then further said:
There is a clear distinction between the use in a criminal proceeding of evidence obtained by illegal search and seizure and the filing of a libel to forfeit property obtained by like unlawful means. Neither papers nor property may be used as evidence in a criminal proceeding, Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, but, as Justice Brandeis said in United States v. One Ford Coupe, 272 U.S. 321, 325, 47 S.Ct. 154, 155, 71 L.Ed. 279, 47 A.L.R. 1025: “It is settled that, where property declared by a federal statute to be forfeited, because used in violation of federal law, is seized by one having no authority to do so, the United States may adopt the seizure with the same effect as if it had originally been made by one duly authorized. The Caledonian, 4 Wheat. 99 [100] 101, 4 L.Ed. 523; Taylor v. United States, 3 How. 197, 205, 11 L.Ed. 559. See United States v. One Studebaker Seven-Passenger Sedan [9 Cir.], 4 F.2d 534.” [105 F.2d at 898]
The
Fourth Amendment furnishes protection to the bankrupt against the use of the evidence obtained by the unlawful search and seizure but does not enable it to secure immunity against forfeiture of merchandise proved to have been imported contrary to law. [105 F.2d at 900]
In accordance with the foregoing, and also upon the grounds stated by Judge Fahy, I concur in his view that the motion to suppress filed in the District Court in the instant case should have been granted by that court and that, it having been denied, there must be a reversal.
PRETTYMAN, Circuit Judge (dissenting).
This case lies in a field in which the questions are close, and so I hesitate to express dissent from the view of a majority of the court. But I cannot escape the conclusion that this judgment should be affirmed and that the ruling is important in the enforcement of the narcotic laws.
The case has two distinctive features which are critical: (1) The premises searched were not Jeffers‘s. (2) The property seized consisted of narcotic drugs without stamps. The question posed therefore is: Can a person claiming ownership of unstamped narcotics seized in another person‘s apartment by officers without a warrant prevent the use of such narcotics as evidence against him (the claimant)? The court says “Yes“. I think “No“. There are two basic differences between us, the first as to the search and the second as to the seizure. The court says that the search was in violation of the Constitution. I say that it was not in violation of the Constitution so far as Jeffers was concerned. As to the seizure, the court says that it too was in violation of the Constitution because it was incidental to an unconstitutional search and also because the seizure itself was of property of Jeffers and was made without a warrant. I say, as I have indicated, that the search was not unconstitutional as to Jeffers and, further, that, neither his premises nor his person being invaded, he had no protected property right in the unstamped narcotics, they being instrumentalities of crime and prima facie intended for such use and prima facie being so used.
In Ingram v. United States,3 an apartment was searched and narcotics seized without a warrant. The tenant, Joseph Woods, and appellant Ingram were indicted jointly. Appellant moved to suppress, the trial court denied the motion, and the appellate court affirmed. Judge Garrecht wrote: “If the search and seizure constituted an invasion of the constitutional rights of Joseph Woods, it did not therefore invade the constitutional rights of appellant, the privacy of whose home or place of abode was not violated, nor can he be heard to complain that the rights of his co-defendant had been invaded, nor can he invoke the benefits of the
In Lagow v. United States,5 an order which forbade, so far as a corporation was concerned, the use as evidence of corporate records illegally seized, but which permitted such use as against the sole stockholder, was affirmed. The Second Circuit (L. Hand, Chase and Frank, Circuit Judges) in a per curiam opinion said, succinctly, that the sole stockholder “may not vicariously take on the privilege of the corporation under the
In Connolly v. Medalie,7 a brewery was searched without a warrant, and property found therеon was seized. Employees were arrested. An order suppressing the use of the evidence was reversed upon appeal. The court cited sixteen cases, in every Circuit Court of Appeals except the First, in which the ruling as to suppression was “always against defendants whose rights had not been invaded.” The court held that the rights of the owner but not those of his employees had been violated by the unconstitutional search and seizure. In Bush-
Grainger v. United States, 1946, 158 F.2d 236,11 concerned not co-defendants only but all the defendants. A cabin was searched without a warrant. No one of the persons arrested had title to or right of possession of the cabin. The court affirmed the denial of a motion to suppress the evidence seized. After discussing several cases Judge Dobie said: “It would thus seem that the accused, seeking to exclude the evidence under the
It is true that Judge Dobie said that the court‘s decision was “simply that neither Grainger nor Buffkin nor Weeks was in a position to claim these rights.”13 But it is clear enough from his discussion that the inability to claim the rights was not a mere procedural lack of standing to object but was a substantive lack of rights.
In Holt v. United States, 1930, 42 F.2d 103,14 a truck loaded with liquor was searched without a warrant and the liquor seized. An employee of the owner, not in possession of the truck, was indicted. A motion to suppress the seized evidence was denied. On appeal the denial was affirmed. The court passed the question whether the search of the truck was constitutionally made, saying: “Be that as it may, it is clear, we think, that no right of the defendant was violated. * * * one malefactor may not claim the right to escape by reason of the fact that the constitutional rights of another were violated.”15 The court cited thirteen cases in support of its position.
In United States v. De Vasto, 1931, 52 F.2d 26, 78 A.L.R. 336,16 there were arrests for conspiracy to violate the Prohibition Act. Several days thereafter a safe in an office building was searched without a warrant and certain corporate records were seized. Officers and employees of the corporation moved to suppress. The appellate court said, “But it has been repeatedly held that the rights declared by the
In In re Dooley, 1931, 48 F.2d 121,18 articles were seized in an illegal search and the court enjoined their use in any prosecution of the corporate owner or others in possession of the premises. Appellants sought to enlarge the order so as to suppress not merely as against them but as against all persons. Judge Augustus Hand said for the court: “Their contention is that the policy of the
The philosophical nub of this part of the controversy is depicted in Goldstein v. United States, 1942, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312.20 As I understand the matter, the federal Courts of Appeals are unanimous in the view that the rights protected by the
petent against anyone but the victim. Conceivably it might have been; it might have been held that the prosecution, though not disqualified from taking advantage of another‘s wrong (Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159), should not prоfit in any wise by its own. But that would obviously introduce other than remedial considerations; the doctrine would then be like that of equity which denies its remedies to one who is not himself scathless.”25
Mention must be made of Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 7, 70 L.Ed. 14526 in this connection. There is confusion as to the precise ruling in respect to the defendants other than Agnello. The Court said that “The introduction of the evidence of the search and seizure did not transgress their constitutional rights.” But in the next sentences the Court indicated that the disputed evidence was neither offered nor admitted in respect to these co-defendants. That indication is somewhat clouded by the last paragraph of the opinion. Examination of the bound volume of the record, etc., in that case reveals that in their petition for rehearing petitioners flatly asserted that “The can of cocaine was received in evidence against all the defendants“, and the Government in its brief (page 19) clearly so intimated. My reading of the Agnello case is that the Court meant exactly what it said in the words above-quoted from the opinion.
In the case at bar I conclude that, since the apartment was not Jeffers‘s, either in title or in right of possession, its invasion was in violation of no right of his and so was not unconstitutional so far as he was concerned. As the case involves nobody but Jeffers, the search of the apartment cannot be treated as unconstitutional.
That brings us to the seizure. The search being not improper as to Jeffers, was the seizure of the unstamped narcotics an unreasonable seizure as to him? The statute
In Harris v. United States, 1947, 331 U.S. 145, 155, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399,29 the Court said flatly: “If entry upon the premises be authorized and the search which follows be valid, there is nothing in the
The Court pointed out that there is a fundamental difference between contraband and property which is merely evidentiary, citing cases. To the same effect is the statement in United States v. Lefkowitz, 1932, 285 U.S. 452, 466, 52 S.Ct. 420, 76 L.Ed. 877.30
In United States v. Stowell, 1890, 133 U.S. 1, 17, 10 S.Ct. 244, 277, 33 L.Ed. 555, 559,31 the Court said: “By the settled doctrine of this court, whenever a statute enacts that upon the commission of a certain act specific property used in or connected with that act shall be forfeited, the forfeiture takes effect immediately upon the commission of the act; the right to the property then vests in the United States, although their title is not perfected until judicial condemnation; the forfeiture constitutes a statutory transfer of the right to the United States at the time the offense is committed, and the condemnation, when obtained, relates back to that time, and avoids all intermediate sales and alienation, even to purchasers in good faith.”
We are now considering the act of seizure, and that alone. The motion to suppress is based, apart from the search, upon the act of seizure itself. The property has not been destroyed, and we do not consider the power to destroy. The officer, says appellant, had no power to seize the narcotics. For that one reason he says it cannot be used as evidence.
The decision upon this part of the case depends upon the nature of the property seized. It is perfectly well settled that the Government, in the exercise of its police power, may seize, and even summarily destroy, some property. It is established that the state may summarily seize, without warrant, instrumentalities of crime and property intended for unlawful use.32 That rule is upon the basis of preventive justice.
What is the property in the case at bar? Unstamped narcotics are instrumentalities of crime. And they are prima facie, by statute, intended to be used to violate the law. The physical absence of stamps was prima facie evidence of the commission of a crime. They are clearly, in my opinion, within the police power of summary seizure.
It is true that if the opinion in Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 166333 had remained in force it might have been necessary for law officers to secure warrants to seize even instrumentalities of crime, if time permitted, but I understand that the decision in United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 65334 has restored the law upon that subject to its former condition, and that the rule now is that circumstances determine the reasonableness vel non of a
Of course, the appellant might conceivably establish that these unstamped narcotics were intended for lawful use. Full opportunity to prove such a contention was afforded him upon the hearing on his motion to suppress. The statutory rule as to illegality is not conclusive; it is prima facie. The officers did not destroy the narcotics. They merely seized them. Appellant did not move to suppress or to regain the property upon the ground that it was intended for lawful use and, therefore, was merely evidentiary and not per se contraband. His motion was based solely upon the officer‘s power to seize as an original incident of power. But, since prima facie these narcotics existed in violation of law, prima facie, property rights did not exist in them. Any right of Jeffers to possession of them rested upon exceedingly narrow exceptions to that rule of nullity. Under the circumstances it was for him to prove the exception. Due process is satisfied by the opportunity to make that proof. This seems to be the doctrine of Samuels v. McCurdy, 267 U.S. 188, 45 S.Ct. 264, 69 L.Ed. 568 (1925),37 People v. Diamond, 1922, 233 N.Y. 130, 135 N.E. 200,38 Rosso v. United States, 3 Cir., 1924, 1 F.2d 717,39 NG Sing v. United States, 9 Cir., 1925, 8 F.2d 919,40 Goode v. United States, 1945, 80 U.S.App.D.C. 67, 149 F.2d 377,41 Wong Lung Sing v. United States, 9 Cir., 1925, 3 F.2d 780,42 and such cases. These rules as to goods which are prima facie the instrumentalities of crime are precisely opposite to those applicable to merely evidentiary material.
My conclusion on this point is that, absent unconstitutional search, an officer has power to seize unstamped narcotics under his summary police power to seize instrumentalities of crime and property intended to be used to violate the law, the statutory presumption of illegal use being enough to justify the seizure, even if, perhaps, not enough tо justify summary destruction or to prevent return of the property if upon the hearing the legality of the possession be established.
A negative word is necessary. If a search is unconstitutional, any seizure, even of contraband, incidental to it is illegal. The incidental seizure takes on the character of the search. Likewise, if the seizure be incidental to an illegal arrest, it is illegal, taking on the character of the arrest to which it is incidental. In the case before us, the search was, for purposes of the case,
My conclusion is that upon a search of an apartment without a warrant officers may seize contraband goods claimed by others than the owner or possessor of the premises, and that such goods are admissible in evidence against such other persons, so far as the
Turning now to the opinion of the court in the case at bar, I have no disagreement with its basic general propositions. I agree that objection may be made by one who owns property seized, as well as by one who owns or possesses the premises searched. But when the court states the applicable rule it seems to me that it begs the question in this casе. It says that one who objects to the use in evidence “of property he owns“, which has been seized in “an unlawful search“, is entitled to its exclusion. The questions posed in the case before us are, to adopt the quoted phrase: (1) Are unstamped narcotics “property he owns” within the meaning of the rule, and (2) is a search of A‘s apartment “an unlawful search” as to B who is not its owner or tenant?
The court refers to a claim of ownership, but I do not understand it to mean that a mere claim of ownership entitles a person to the exclusion of evidence. To be sure, a failure to claim ownership or a denial of ownership will defeat a motion to exclude.43 But the soundness of those affirmative propositions does not establish their converse. Actuality of interest and not mere claim of interest must be the premise for a valid assertion of constitutional invasion.
The Pielow case,44 cited by the court, is not pertinent, because the proрerty, merely evidentiary and not contraband, was in the possession of a bailee of the accused. In the case at bar the property was contraband and, moreover, its presence in the apartment of the aunts was, according to their testimony, without their permission, against their wishes, and so a trespass.
The court attempts to avoid the Gibson case, supra, by pointing out that the narcotics were there seized as an incident to an arrest for the commission of a crime in the presence of an officer, i. e., possession on Gibson‘s person of one narcotic cigarette. But, if the entry into the apartment had been illegal as to Gibson, as it was to O‘Kelley, the tenant, the arrest would have been unlawful and the seizure therefore unlawful. This court held the entry illegal as to the tenant but legal as to Gibson, and so the arrest was legal and the incidental seizure therefore legal. I do not grasp the significance of the distinction between that case and this one. If Jeffers hаd been present his arrest in the apartment would have been legal, even though an arrest of his aunts there would not have been. It would seem to me that, if a seizure of contraband on a man‘s person or in his presence be not an unreasonable invasion of his privacy, a fortiori its seizure in his physical absence would not be an unreasonable invasion.45 On authority we find the sentence we have quoted above from the opin-
The provision in the statute to which the court refers and which provides that a search warrant may issue for contraband goods, was inserted, in my view, so as to make sure that although these goods were not legally property they could be searched for. A search warrant would be required as against the owner or possessor of the premises upon which the contraband was located.
I do not see how an individual‘s rights can be invaded by Government seizure of contraband goods, of the nature of unstamped narcotics, not on the individual‘s person or premises. I agree with the trial court.