297 F. 531 | D. Mass. | 1924
These are motions to quash the indictments. Many grounds are set out, but those relied on are that the indictments were procured by the submission to the grand jury of evidence illegally obtained.
The facts are as follows:
The building, No. 24 Diberty street, Springfield, contains a shop on the street front; over the shop is a sort of club room frequented by Chinese; and over that a half attic where there are lodging rooms. Touching its rear end is another building, facing the alley or yard and occupied throughout as a lodging house. On the testimony before me there is no connection between the two buildings. The rear building is not numbered. Inspector Kenefick, of the Narcotic Division, while on the second floor of the rear building, smelt opium smoke. He thereupon procured from United States Commissioner Gordon a search warrant, authorizing the search of—
“a room and rooms in a certain three-story building and is numbered 24 liberty street, said rooms being on the third floor of said building, being occupied by John Doe, alias, other and true name is unknown, known as Fook Tsue Snng, for the unlawful possession and sale of narcotic drugs.”
It authorized Thomas A. Kenefick, narcotic inspector, “to forthwith enter into said building above described,” etc.
Under this warrant Kenefick entered a living apartment of three rooms on the top floor of the rear building. He found there the three defendants. Two of them were smoking opium, when he entered; the third was just leaving. All three were then and there arrested. A considerable quantity of opium and paraphernalia for smoking it were also discovered arid seized.
This warrant, as I construe its slipshod language, authorizes the search of a room or rooms which were on the third floor of a building numbered 24 Liberty street and were occupied by a 'person whose true name was unknown, but who was also known as Fook Tsue Sung. On the testimony, he was a real person who occupied the next building, No. 23 Liberty street. He did not occupy the rooms searched. If both front and rear buildings be regarded as coming within the number, 24, which was on the front one, there were several rooms on the third floors. The warrant does not specify which of these is to be searched, except by the statement as to occupancy, which was entirely erroneous and of no assistance in locating them.
On these facts I find and rule that the warrant did not particularly describe the place to be searched and was on that account invalid, and the search under it was illegal. U. S. v. Alexander (D. C.) 278 Fed. 308; U. S. v. Innelli (D. C.) 286 Fed. 731.
Once inside the apartment, the officer found that a felony was being committed in his presence by two of the defendants; they being then and there, on the evidence before me, in the unlawful possession of smoking opium. No search warrant is necessary in order to justify an officer in entering a building where he has reasonable ground to believe that a felony is being committed. Green v. State, 92 Tex. Cr. R. 151, 241 S. W. 1014. Pie may break doors to get in and apprehend the felon. Commonwealth v. Phelps, 209 Mass. 396, 95 N. E. 868, Ann. Cas. 1912B, 566; 2 Ruling Case Law, p. 476. The officer appears to have believed that a continuing felony, viz. the unlawful possession of smoking opium, was being committed in the rooms which he entered, and that he should find there one or more of the guilty persons. This justified his entrance. That he supposed he was entering under the warrant, which was invalid, does not diminish his other rights. Being rightly in, it was his duty to act on what he there 'found; i. -e.. to arrest the felons and, as incidental to the arrest, to seize the instrumentalities used in the crime. People v. Woodward, 220 Mich. 511, 190 N, W. 721.
As to the man who was just leaving, the circumstances well warranted a belief that he had committed a felony or was accessory to one.
It should be observed that this case is very different in the principles of law applicable to it from those arising under the National Prohibition Act as to violations which are, by its terms, made misdemeanors only. Upon the points here involved the difference between felonies and misdemeanors has been clearly established for over two centuries. Kurtz v. Moffitt, 115 U. S. 487, 6 Sup. Ct. 148, 29 L. Ed. 458; Elk v. U. S., 177 U. S. 529, 20 Sup. Ct. 729, 44 L. Ed. 874. And it is also
It follows that the motions to quash must be denied.
