*1 122 Platan- Nacional
situations involved in La Corp.,
era v. su- North American F. & S. S. pra and Specialty Radiator Co. v. Cannon
Mills, Cir., which 97 F.2d in each of stay application
cases an denied. for a decision, however, The would seem to us one within the trial discretion,
judge than a rather matter of abuse, only suggested by
reversible
those decisions. appealed
The orders from are affirmed. v. ASENDIO.
UNITED STATES 9626.
No. Appeals
United States Court Third Circuit.
Argued June Dec.
Decided Hill, 2d, Pinckney Philadelphia,
Leslie Goodman, (Austin Norris A. Allan Pa. Pa., Philadelphia, brief), both of on the appellant. Gleeson, Philadelphia,
Gerald A. Pa. Geisz, Atty., (John Asst. A. U. S. of Phil- Pa., adelphia, brief), appellee. BIGGS, Judge, Before Chief and Mc- O’CONNELL, LAUGHLIN and Circuit Judges.
O’CONNELL, Judge. Circuit guilty found Indicted and violation Drugs Import of the Narcotic of Section Act, Export U.S.C.A. defend- § appeal. ques- ant has taken instant presented for our decision tions involve the *2 of treat- the a result she had been cured as scope Amendment of Fourth the she taken. ment had States. the United Constitution of He by jury. Defendant waived trial purpose of facts, stipulated the The evidence suppress the made motion to no substantially as follows: appeal, are this a of by agents as result seized the federal entertainer, passed Holliday, an One Billie He moved for the search. aforementioned tissue in white wrapped package a small of judgment at the close acquittal a both of busier defendant, the of paper one on testimony presented government Philadelphia. downtown of street corners rested; neither of and after defense but 15, May on P. M. at 11:30 This occurred failure of these referred to the motions Holli- 1947, at which of theater in front a government war- agents to obtain search en- professional day completed a just had they room. rant before entered his hotel Holliday defend- nor gagement. Neither motions, Denying judge both the trial Roder, agent an one that ant was aware guilty. found defendant Narcotics, ob- of Bureau of the Federal package. Direct- of served the transfer thereafter, defendant About three weeks piano accom- ly thereafter, Holliday, her or ac- moved for a trial of new Tucker, defendant en- panist -and named quittal. time, he For the first asserted that hotel rode to a tered an automobile illegally arrested he “was as the staying. Roder and were where the three agents who made arrest invaded his them. agents followed federal two other private room at Attucks Hotel without required or search warrant as is seizure hotel, the federal Upon arriving at the later, days denying law.” Five this mo- uni- of two secured the services agents well, judge as the trial sentenced de- These five Philadelphia policemen. formed imprisonment year fendant to one which de- proceeded to the officials day. one occupy- accompanist were and the fendant open. De- the room was door ing. The stipulation The of facts concludes with travel- packing were Tucker fendant and the statement that “there was considerable themselves, the fed- Identifying ling bags. testimony more adduced both [sic] they search could whether asked agents eral bearing Government the defendant told Tucker Defendant and the room. guilt or innocence of the defendant ” ‘go they “could ahead.’ them question regard of the defend- guilty knowledge ant’s of the contents of minutes. Rod- The lasted several search package, but counsel do not consider beds, found, the identi- one er under questions upon them essential to the raised had de- package which cal appeal.” pavement a half hour about fendant on the cap- package contained previously. The past months, Within the eleven hypo- hydrochloride, two heroin sules of Supreme Court of the United States needles, items, wrap- all and other dermic prime has handed down decisions three stocking. ped denying At all first in a silk importance interpreting the Fourth package, defendant later knowledge of Re, In United States v. Di Amendment. possession he had been that admitted 332 U.S. 68 S.Ct. under the bed. He had thrown it it Court, alia, inter held that submission to that he did not know the further asserted acceptance arrest and go a command to package but a few until contents police station is not a basis for infer agents city federal before the minutes probable cause, ring prin and reiterated the n stipulation does arrived. ciple not legal that “a search is to be made information as to when defend- not include up.” it In what turns v. United Johnson placed arrest. under was ant States, 367, 333 U.S. 68 S.Ct. partially happened, involving case events the same time these de- statute At the Holliday’s employ, under which the as that instant been defendant had fendant convicted, the Court manager, about three stressed weeks. He road privacy right of knowing had must reasonably that she “when addict- admitted is, yield right rule, as a drugs, thought but maintained that he toed officer, by po- so, by judicial doing Instead be decided warrant. he agent,” chose enforcement to follow liceman or Government the hotel pri- institute access a search without a warrant. We gaining and that “an officer *3 plain of his color of- deem it was quarters vate under that this action living course processes not personifies judicial “adherence which he to where- fice and of the law law possible.” ever basis We have then have valid been no must some Trupiano justify Finally, dispensing reason to Roder’s the intrusion.” for orderly States, 1948, procedure prescribed S.Ct. the for United 334 U.S. war- holding that a searches and although seizures. Roder had Even if a fel- unnecessary where known in go- rant arrest is advance that defendant was ing ony eyes pack travelling of an of- to the hotel plainly bags, to the occurs before law- we place he is have no ficer the law at a where intimation that defendant was preparing fully grant- flight present, justice. from Holli- the Court nevertheless day’s ended, engagement suppress contra- at theater had ed and a motion to exclude preparation departure per- and the physically person was which was near band fectly consistent properly was seized with what ex- arrested and which one would pect Trupiano manager figure road of a in the Again without a in the warrant. Moreover, entertainment emphasized no- case the Court that Fourth it world. appears lapse where judicial of time requires Amendment “adherence to neces- sary to processes possible,” pointed per- obtain wherever a warrant would have depart mitted defendant out that abundance of time to before Roder there was an could take during could have effective action. The facts un- which a search warrant mistakably said, agents indicate that the been secured. The Court “Rather the federal deliberately either apparent summary through or test is the need for seiz- inadvertence ure, by-pass clearly by require- chose to a test which is not satisfied constitutional ment. page the facts us.” 334 before U.S. at dissenting page at 1234. Even the S.Ct. us, argument On the oral gov- before
justices Trupiano in the case accented the conceded, ernment as indeed the Di Re and entry fact that there had been lawful indicate, cases that defendant’s Johnson valid arrest. “go ahead” cannot be construed as consent city search. The federal agents and principles Applying these authority were a show of bar, escape facts at we cannot the conclu force which merely to defendant submitted. sion that the seizure here in case, As in the the arrest of de- volved fell within the ban of the Fourth Johnson fendant could justified only by be subsequent Amendment. It is true that search, and the search the arrest. We events indicated that Roder had witnessed can no find valid basis in law for the un- offense, the commission anof when he saw warranted intrusion the officials. defendant; package hand the equally but it is true that the act which he then, Clearly, motion not, itself, observed was and of suppress gained by evidence the il obviously kind which give would even a legal search and seizure would have had to eye suspicion trained more than a that an granted. Defendant made no such mo being offense was committed. We think tion; nor did he call attention to the cir appropriate it is judi doubtful whether an cumstances of the search and seizure until officer, cial informed that a former addict adjudged after he had been guilty and was had been seen to hand a small package to be government sentenced. The contends paper wrapped employee in white to her in that defendant’s failure to raise the issue theater, front a downtown would have amounted to waiver that defense. We considered the circumstances sufficiently not, not, need and do decide whether this suspicious to warrant the issuance of a position would have force if defendant had search warrant. first asserted the defense in appeal. It shall, however, We assume without so is sufficient note that defendant bring did deciding that what Roder observed did con- the matter to the attention of the district “reasonable cause” stitute securing judge facts, who was the trier of the before an examina- permission Asendio’s to make be- the court and that passed, sentence not, use of his arms. did consider Asendio opportunity to have the did low transcript, “deny ex- the words of the reluctant dispose We are of the issue. amination,” coat and rolled his but took off proverbial litigant two bites at give testified, up “I did his sleeves. Roder may defend on first apple, that he so hypodermic any find marks from the intro- evidence argue that merits and later needle”, that he on his arms. Roder stated objection should him without duced permission make a then asked Asendio’s by a court have excluded nevertheless person. Asendio search of evi- faulty of that basis unaware of the *4 minute; you replied: a will “Now wait find hand, we should theOn other dence. you please yourself identify again, who position that a support it difficult to Asendio his Roder he showed right are.” stated can basic constitutional officer and his as a narcotic commission counsel ob- because his failed be denied “Well, said: shield and that Asendio then of the ject or at the introduction before satisfactory ahead and that is to me. Go States In United v. evidence. colorable 226, 228, a make search.” The search seizure Ward, etc., Cir., 1948, 168 F.2d 3 testimony of necessary immediately followed. The because the we deemed reversal agent other narcotic corroborated jury that failure judge inferred trial testify Roder. be considered an could accused to testimony even together guilt, right guaran- The law is that the clear that er- though assign accused did not Fourth Amendment to the Con- teed reversal; as a basis for and in United ror people against unreasonable stitution to the Pincourt, Cir., 1948, 3 167 F.2d States v. is a privilege searches and seizures 831, upon we reversed conviction immunity personal the individual which appeal had ground discovered after consent, may individual’s be waived taken. We conclude that record shows voluntarily. if See Davis v. United plain admitting, in unwittingly, error albeit 1256, States, 582, 66 328 S.Ct. U.S. testimony gained il- as a result of the 1453; States, Ingram 90 L.Ed. United v. Rule legal search and seizure. Under 52 Cir., 966; Grainger 9 F.2d United 113 Criminal (b) of the Rules of Pro- 236; States, Cir., 4 158 F.2d Grice v. cedure, U.S.C.A., 18 reversal is therefore 849; States, Cir., 146 4 F.2d In re United necessary. See United States v. Renee Ice 996; Fried, 453, Cir., 2 161 1 A.L.R.2d F.2d Co., Cir., 1947, 353, 3 Cream 160 F.2d 355. Seizures, Amer.Jur., 47 Searches and Sec- Whether, bar, in case at The judgment will be reversed voluntarily search Asendio consented cause remanded for new trial. agents, room the narcotic of his hotel thereby waiving right, his constitutional is BIGGS, part, Chief-Judge (concurring below, fact, question which the court dissenting part). remand, specifically should find under According testimony of Narcotic the instant the circumstances of case. See Agent Roder when he other narcot- 23(c), Federal Rules Criminal Pro- Rule officers, accompanied by ic two uniformed States, supra, v. United cedure. Cf. Davis Philadelphia Force, Police 593, pages at U.S. 66 328 S.Ct. arrived at the defendant’s in the At- 1453; Fried, supra, In re 2 L.Ed. they open tacks Hotel found the door Cir., page at 161 F.2d A.L.R.2d light burning. The defendant and Tuck- er inside. The were officers walked into opinion majority takes the view that the room and Agent Roder and the other is an issue. I think Asendio’s consent agent narcotic showed their credentials to position for, is erroneous as indi- that this Asendio and Tucker. Roder then informed paragraph, preceding in the he cated could that he had Asendio reliable information right. waived constitutional have that he and Billie were [Asendio] possession judgment drugs. narcotic that the court Asked I conclude if drugs, he used vacated the cause re- narcotic Asendio denied below should may did. Roder he further end that the trial court testified he asked manded referred, A finding to. special make the unnecessary. If the trial
full-dress new is voluntarily
trial that Asendio court finds agents, narcotic
consented to search could enter court below If the court
against Asendio as before. voluntarily
were find that he had not enter
consented to the it should acquittal.
judgment of
Gladstein, Andersen, Sawyer Resner & Francisco, Leonard, all and Norman of San Cal., appellant. Chapman De- Emmet and Frederick C. J.
war, Francisco, Cal., appel- both of San lee. *5 DENMAN, Judge,
Before Chief ORR, CORPORATION Judges. PRODUCTS HEALY and TUCKER Circuit et al. v. HELMS No. 12125. PER CURIAM. appellees move to dismiss Appeals Defendants Court of
United States appeal ground herein on that the Ninth Circuit. transcript record in time to file the Dec. appeal docketing the ex- district court for Rehearing 3, 1949. Denied Jan. days pired ninety November appeal, filing after the of the notice transcript required filing fee were not tendered the clerk this court until December agree appeal should be We plaintiff and The contention of dismissed. appellant attorneys, officers that its is court, may litigation in other engage this “preoccupation in mat and that other this preparation relieves them of the ters” presentation of an affidavit and motion for provided extension time in our Rule expiration prior 131to be made district court under Rule time fixed Procedure, Rules of Civil 28 U.S.C.A. preoccupation regard such
We do not
ground
a reasonable
litigation as
other
neglect
the duties of officersof this court.
Young,
U.S.App.D.C.
Maghan
time peal denied. is appeal grant- to dismiss the is The motion ed. January been set aside. rule has Effective