Johnson v. United States, 11407.
| Decision Date | 15 August 1947 |
| Docket Number | No. 11407.,11407. |
| Citation | 162 F.2d 562 |
| Parties | JOHNSON v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Anthony Savage and H. Sylvester Garvin, both of Seattle, Wash., for appellant.
J. Charles Dennis, U. S. Atty., Allan Pomeroy and John E. Belcher, Asst. U. S. Attys., all of Seattle, Wash., for appellee.
Before STEPHENS, HEALY and ORR, Circuit Judges.
Anne Johnson is appealing from the judgment after she was tried, convicted and sentenced (Count 1) for purchasing "approximately 85 grains of opium prepared for smoking, which was not then in nor from the original stamped package", 26 U.S.C.A. Int.Rev.Code, § 2553(a), (Count 11) of having "knowingly received and concealed 85 grains of opium prepared for smoking, which had theretofore been imported and brought into the United States of America contrary to law * * *", 21 U.S.C.A. § 174, (Count 3) of purchasing "approximately 41 grains of yen shee, partially smoked opium prepared for smoking, which was not then in nor from the original stamped package", 26 U.S.C.A. Int.Rev. Code, § 2553(a), (Count 4) of having "knowingly received and concealed 41 grains of yen shee, partially smoked opium prepared for smoking, which had theretofore been imported into the United States of America contrary to law * * *", 21 U.S.C.A. § 174.
Appellant claims reversible error because the conviction would have no substantial support without evidence secured through an illegal search and seizure (Fourth Amendment of United States Constitution) and because of misconduct of counsel for the government.
There is substantial evidence to support the following factual situation:
Officer Belland, with long experience on a narcotic detail, was informed that smoking of opium was in progress in a certain hotel. At the time of receiving such information, the officer was engaged in the arrest of a person, and upon completion of that duty, he proceeded to investigate the information given him. He arrived at the hotel shortly before 9:00 p. m., taking three other officers with him, and with two of the officers, went to the second floor, where he detected a strong odor of burning opium. The officers traced the odor to room number one, and there smelled strong current of opium fumes coming from the cracks in the panels and from the cracks around the loosely fitting door. Officer Belland rapped, stated his name and requested admittance. There were sounds of some one scurrying around within the room for several minutes, after which the officer was admitted by appellant. Upon inquiry as to the opium fumes, she denied their presence, whereupon she was placed under arrest and a search for evidence of smoking opium was set in progress. A rather complete opium smoking outfit with opium was found under bed covers, the pipe still being quite warm. Yen shee was discovered in a suit case.
The search was not unreasonable or illegal provided the circumstances just briefly related were sufficient to constitute probable cause for the arrest. Kwong How v. United States, 9 Cir., 71 F.2d 71; Garske v. United States, 8 Cir., 1 F.2d 620; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035; McCarthy v. De Armit, 99 Pa. 63; Green v. United States, 8 Cir., 289 F. 236; Pong Ying v. United States, 3 Cir., 66 F.2d 67.
The following cases are cited as authority for the conclusion that mere smell of burning opium is not sufficient to constitute probable cause. Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; United States v. Lee, 2 Cir., 83 F.2d 195; United States v. Kind, 2 Cir., 87 F.2d 315; United States v. Kaplan, 2 Cir., 98 F.2d 869.
Of course, there is nothing in the statutory law to the effect that the sense of smell alone is not sufficient to constitute probable cause, and, therefore, any such holding in a given case is premised upon the facts of the given case. We venture to say that the smell of opium fumes may in some circumstances be second only to the...
To continue reading
Request your trial
-
Rundle v. Warden, San Quentin State Prison
...Rather, the court simply held that it did not rise to the level of a due process violation. Id. Similarly, in Johnson v. United States, 162 F.2d 562, 563-64 (9th Cir. 1947), rev'd on other grounds, 333 U.S. 10 (1948), the Court of Appeals held the prosecutor's assertions that defense counse......
-
Robbins v. MacKenzie, 6688.
...ground of decision; consent was found in any event. See 161 Me. at 135-136, 210 A.2d 24. 2 The Court of Appeals opinion, 9 Cir., 1947, 162 F.2d 562, discussed only probable cause and the need for a warrant; it did not pass on the voluntariness of the entry. The authority of Johnson has been......
-
Tacoronte v. State
...the jury against the defendant, are improper and constitute professional misconduct is not really open to debate. Johnson v. United States, 162 F.2d 562 (9th Cir.), rev'd on other grounds, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); Weathers v. United States, 117 F.2d 585 (5th Cir. 1941......
-
United States v. Horton
...to suppress before trial and admitted over defendant's objection at the trial. Conviction resulted, and the Court of Appeals affirmed. 9 Cir., 162 F.2d 562. Upon certiorari to the Supreme Court of the United States, the conviction was reversed on the ground that the arresting officers did n......