*1 America, UNITED STATES Plaintiff-Appellant, HARRIS, Defendant-Appellee.
John W.
No. 15033. Appeals Court of
United States
Sixth Circuit.
Aug. 1963. Merrill, Atty., William H. U. Asst. S. Detroit, Gubow, (Lawrence Mich. U. S.
Atty.,
Jr.,
Trumbauer,
Milton J.
Asst. U.
Atty.,
appellant.
brief),
on
S.
Garfinkle, Detroit,
H. Donald
Mich.
(Harris,
Hooberman, Detroit,
Stein &
Mich.,
brief),
appellee.
on the
CECIL,
Judge, MILLER,
Before
Chief
Judge,
Judge.
BOYD,
Circuit
District
CECIL,
Judge.
Chief
Harris, defendant-appellee,
W.
John
was indicted
the Eastern
District
Michigan,
Division,
charge
Southern
on a
receiving, concealing
having
in his
January
31, 1962, approxi-
grams
mately
heroin,
7.61
violation
of Section
Title
United States
sup-
A motion and
Code.
an affidavit to
press
were filed on
evidence
behalf of the
defendant-appellee.
appellant
govern-
appellee
be referred
will
to as the
defendant, respectively.
ment and
Judge upon hearing
The District
evi-
arguments
oral
dence and
of counsel de-
motion.
nied the
Counsel for the defend-
petitioned
rehearing,
for a
ant
further
was submitted to the
court and
suppress
the motion
evidence was sus-
government appealed.
tained. The
event which
led to the in
of the defendant
dictment
occurred on
January
1962. On that date at about
five-thirty p.
DeBiasi,
m. Connie
a treas
assigned
agent
ury
to the Bureau of
Narcotics,
telephone
received a
call at federal
Bureau
build
office
ing
special employee
from at Detroit
*2
According
entering.
the testi-
of the Bureau.
mony
There was a
door
chain
the
opened by
special employee
person
prevented
who
is a
the defendant which
being fully opened.
and the
in
traffic
door from
This
himself involved
narcotic
by
is used
secure
chain was
the
Bureau to
broken off of
door
the
Narcotics
the
applied by
information of
the narcotic
force
agent.
violations of
DeBiasi and his fellow
persons.
had
laws
other
Mr. DeBiasi
previously
special em-
worked with this
gain-
Mr. DeBiasi testified that
ployee and considered him reliable.
ing
apartment
placed
entrance to the
he
special employee
The
told Mr. DeBiasi
the defendant under arrest for
just
apartment of
that he had
left the
of narcotics in violation of
He said
law.
Honey
Harris,
him as
John
Boy,
known to
searching
that after
the defendant
Honey Boy
quantity
and that
had a
weapons he took him
and
to the kitchen
putting
bulk
he
of
narcotics which
was
questioned him for ten or fifteen minutes
Honey
capsule
into
form. He said that
concerning
de-
narcotics.
defendant
Boy
trafficking
in
and that
narcotics
during
interrogation
nied
hearing
the
and at
people in
there was a constant
flow
rehearing
petition
on the
and out of
He further
any
posses-
that he had
narcotics in his
upon completion
capping
said that
sion.
Honey
likely
narcotics,
Boy
bulk
would
complete
made a
(the narcotics)
move his “stash”
to some
apartment
which took about one hour.
apart-
other location. The defendant’s
In about fifteen
en-
minutes after the
apartment
ment was
and located
city
No.
agent
trance,
Howard found
between
at
in
296 Warren street
of De-
open
apartment
door of the
17 and
No.
troit.
living
the wall of the
room a small white
get
Mr. DeBiasi made no effort to
containing
package
approximately 31
He and seven other
search warrant.
pink capsules
gelatin capsule
and also a
immediately
apart-
went
containing approximately
cap-
box
apartment
ment of the defendant. The
suspected
sules of
heroin. He took one
Agents
onwas
the second floor.
DeBiasi
capsule
package
from
perform-
each
and
position
and
took a
at a front door
David
Marquis reagent.
ed a field test with a
opening
hall,
marked “17”
into a
got positive
He
reaction which indicat-
DeFaugh
Howard,
Irvin
were sta-
capsules
that
substance
opening
tioned at another door
from a
By
heroin.
further
search he found
hall,
room into the
bed
same
dispensing envelope,
small white
the same
Marquardt and Jenits were stationed at
cap-
the one
which contained the 31
opening
living
another door
from the
envelope
sules. This
had a
“one
notation
agent
room. Another
was stationed on
half” marked on it.
any
the outside to watch for
evidence that
might
Agent
thrown out of the
Howard
window.
testified that he show-
empty
ed the defendant the
white en-
Mr.
testified
DeBiasi
that
knocked
he
velope
containing
and the one
the 31
partially opened
defendant
and that the
capsules and asked him if
were
these
Mr.
the door.
DeBiasi further testified
purchased
containers in which he
he told the defendant
that
that
were
narcotics. He
bulk
said the defendant
police
and that he was
under ar-
answered
the affirmative. The defend-
attempted
defendant
rest.
to slam
custody
ant was taken into
and Bertha
agent
shut but
door
forced it
Cummings,
who was in the
at
pinning
open
the defendant between the
search,
the time
was also
in-
taken
living
wall of
and the
door
Simultaneously
room.
custody.
kept
jail
She was
over
agent
with
DeBiasi’s en-
night
following
released
morn-
signalled
trance
ing.
hall door to force their
other
bedroom. This
Cummings
door was
into
The defendant and
kicked
Bertha
process
or otherwise broken in
any
testified that
did
of both
not hear
They
knocking
entry.
877;
the forcible
Harris v. United
before
prior
145, 153,
also
to the entrance
testified
L.
agents they
did not hear
Ed.
Abel v. United
identify
police
217, 225-26,
themselves as
4 L.Ed.2d
*3
they
place
States,
493, 500,
hear
the defend-
did not
Jones United
v.
357 U.S.
Worthing
1253,
1514;
78
2
ant under arrest.
S.Ct.
L.Ed.2d
States,
557, 566,
ton United
v.
166 F.2d
sustaining
suppress
the motion to
In
Taglavore
C.A.6;
States,
United
v.
291
judge
from
the trial
found
evidence
262, 265,
F.2d
also
C.A.9. See
Go-Bart
an
that the
not
search was
Importing
States,
United
Co. v.
282 U.S.
arrest,
incident of
but
it was
344,
153,
374;
51 S.Ct.
L.Ed.
Hender
75
going
principal reason for
to
the officers
C.A.4;
States,
528,
son v. United
12 F.2d
apartment.
the defendant’s
California,
23,
Ker v.
374 U.S.
83 S.Ct.
government
claims that the
1623, 1635, 10 L.Ed.2d 726.
ground
had reasonable
to
that the
believe
All of the
of the Narcotics
defendant had committed or was commit
they
Bureau who testified said that
went
ting, at
time of the
into his
apartment
out to the
for the
defendant’s
apartment,
relating
a
to
violation of law
purpose
arresting
violating
him for
drugs
they
em
narcotic
and that
were
purpose
narcotics laws. The real
of the
powered to make an
without a
agents must be determined
all
from of the
26,
7607(2),
warrant. Section
Title
U.S.
surrounding
facts and circumstances
government
logical
C. The
claims that it
arrest of the defendant and the search
ly
if
de
follows that
of the
of his
The court is not bound
valid,
fendant were
the search
accept
purpose
to
as stated
premises was incidental to
arrest and
controlling.
as
also valid.
supports
record
a whole
It is well established that a valid search
judge
conclusion of the trial
premises
under control of an arrested
principal
search was the
reason for the
may
person
be made as an
incident of
agents going
to the
of the de-
Agnello
States,
valid arrest.
United
v.
gave
judge
fendant. The
three reasons
20, 30,
4,
145;
46
269 U.S.
S.Ct.
70 L.Ed.
determination,
as a basis for
viz.,
his
1.
States,
145,
Harris v. United
331 U.S.
parole
That
the defendant
151,
1098,
1399;
67
L.Ed.
S.Ct.
91
Unit-
only purpose
if arrest was the
of the
Rabinowitz,
56,
ed
v.
States
339 U.S.
70
agents,
could have had him arrest-
430,
653;
94 L.Ed.
Wilson
S.Ct.
v. Schnet-
parole officer;
his
2. The concern
tler,
381, 383,
632,
U.S.
81
365
S.Ct.
5
prevent
of the
was to
the defend-
L.Ed.2d 620.
trafficking
ant
from
narcotics;
3.
apprehended
Once
defendant was
may
An
not be used as
immediately
was not
removed from the
pretext
subterfuge
making
or
premises but
approximately
was held for
premises
search of
without a search war
fifteen minutes until the search revealed
ordinarily
rant where
would
re
one
be
evidence of narcotics.
quired under the Fourth Amendment.1
If,
fact,
primary purpose
of forci
The facts that
the defendant was on
entering
bly
person’s
parole
parole
home is to search
and that
were
not
for evidence with which to convict him
an
called to make
arrest are of no conse-
crime,
quence
evidence so
elapse
obtained
not
in this
case. The
of time
apprehension
admissible in court. United States
between his
v.
and the dis-
Lefkowitz,
452, 467,
covery
420,
52
deciding
U.S.
of the evidence is not a
right
people
cause, supported by
1.
affirmation,
“The
of the
be
to
secure
or
Oath
persons, houses, papers
particularly describing
place
in their
and ef
fects, against
persons
searched,
things
unreasonable searches and
and the
or
seizures,
violated,
shall not be
and no
be seized.” U.S.Const. Amend. IV.
issue,
upon probable
shall
Warrants
but
give
To
Harris
sanction
in this case.
to a search such as
factor
See
1098,
States,
149,
virtually
145,
case,
was made in
nullify
67 S.Ct.
would
U.S.
provision
United
v. Rabino-
Fourth
States
that,
430,
right
peo-
witz,
59,
56,
94 Amendment
U.S.
70 S.Ct.
“The
ple
persons, houses,
to be secure
their
L.Ed.
Abel v. United
* * * against
223,
683,
L.Ed.2d 668.
searches
unreasonable
80 S.Ct.
*
seizures,
violated,
shall not be
participants
in this arrest
We are not unmindful of
Bu-
of the Narcotics
were
United
duty
prevent traffic
It
their
reau.
3 L.Ed.2d
in this
but the facts
case
accomplish
must
in narcotics which
largely
are different. Here we
determined
have
*4
through
of
and conviction
entry
that a forcible
into
was made
a
They
of
narcotics
violators
the
laws.
by
man’s home
a
officers without
search
prosecution
vir-
knew that successful
tually impossible
was
pri-
warrant and that the search was the
physical
evi-
without
mary
gaining
motive of the
in
officers
en-
January
preceding this
4th
dence. On
Draper
trance into the home.
the
In
agents had
informa-
arrest the
received
search
incidental
was
an arrest. The
to
employee
special
of
tion from the same
question
pre-
of whether
was a
the arrest
by this
of the narcotics laws
violation
subterfuge
searching
per-
text or
for
the
in
same
defendant
the
same
son of
without a
was not
warrant
agents
occasion federal
accom-
that
On
panied
before the Court.
by police
of the Detroit Narcotics
Judge
We conclude that
the District
the
Bureau made a forcible entrance into
finding
in
was correct
that
search of
the
apartment, searched it and found no evi-
pri-
the defendant’s
was the
They took the de-
dence of narcotics.
mary
agents
going
purpose of the
in
to
jail
fol-
to
but released him the
fendant
lowing morning
making
apartment and
the
an arrest.
making any
without
arriving
conclusion,
at this
we
In
estab-
against
charge
him.
principle
ques-
The
lish no new
of law.
placing
manner
The
of
the
Judge
the
tion before
District
a
way
Mr.
the entrances
the
DeBiasi
solely
to be
on
factual one
decided
the
signalled the men at the bed room door particular
before
facts of. the case
him.
gained
knew
enter
to
as
opinion
that the facts sub-
of
We are
just
is
defendant was
inside the door
judge’s
trial
conclusion and
stantiate
primary purpose
with a
of
inconsistent
not disturb
we will
it.
primary
If
had
been the
arrest.
judgment of the District Court
The
going
purpose
of
to the
affirmed.
apartment,
no
there would have been
necessity
forcibly
for
three
to
Judge
BOYD,
(dissenting).
District
bed room
door.
If
had
enter
respectfully dissent. The ma-
I must
prevent
placed there to
the defend-
been
controlling
as
jority opinion invokes
through
door, certainly
escape
ant’s
may
principle
an arrest
ease
this
caught
way
on
have
him the
could
subterfuge
pretext
for
nor
a
neither
out.
this le-
a warrant. With
without
search
large
defendant had a
“stash”
of
gal principle mind
instant case is
Apparently,
any
of
narcotics.
quite
on
facts from
its
different
by
principle
had had him under
for
bureau
surveillance
prize
cited
the eases
majority.
long
a
cases were
time. He was
Most
the cited
a
for
catch.
by
of four
was of the essence and it
one
characteristics.
Time
was not
featured
get
general exploratory
practical
or
either a
convenient
search There
strong urge
by
There was a
as evidenced
ruthless
in-
warrant.
search
against
unoffending items,
seizure
make a case
discriminate
Lefkowitz,
permit
452,
we cannot
U.S.
but
States v.
285
defendant
law United
by expediency.
420,
circumvented
52
743
arresting
Company
States,
grounds
Importing
United
282 of the
un-
v.
acceptable
majority.
majority
or
344,
153,
L.Ed.
to the
51 S.Ct.
75
U.S.
affirms, however, supplanting
one
here
offense
an arrest
with search
Judge’s
another,
District
discounte-
evidence of
reasons for
Abel
nancing
States,
217,
purpose
L.Ed.
4
the intent and
U.S.
80
362
S.Ct.
States,
Taglavore
cloth,
668,
officers with
consider
new
which I
2d
United
v.
porous
(C.A.9);
with
be as
old.