202 F.2d 13 (D.C. Cir. 1952), 10899, United States v. Cefaratti

Docket Nº:10899.
Citation:202 F.2d 13
Case Date:November 06, 1952
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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202 F.2d 13 (D.C. Cir. 1952)




No. 10899.

United States Court of Appeals, District of Columbia Circuit.

November 6, 1952

Argued March 31, 1952.

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Joseph A. Sommer, Asst. U.S. Atty., Washington, D.C., with whom George Morris Fay, U.S. Atty., Washington, D.C., when the brief was filed, and Joseph M. Howard, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellant. Charles M. Irelan, Washington, D.C., U.S. Atty., on the date of argument, entered an appearance for appellant.

Frank D. Reeves, Washington, D.C., with whom Curtis P. Mitchell, Henry Lincoln Johnson, Jr., and B. Dabney Fox, Washington, D.C., were on the brief, for appellee.

Before STEPHENS, Chief Judge, and EDGERTON and WILBUR K. MILLER, Circuit Judges.

EDGERTON, Circuit Judge.

On September 21, 1950 Policeman Gabrys saw appellee sell drugs to one Hallams. Appellee was not within reach and was not arrested. At the request of Gabrys, Hallams agreed to meet appellee on September 23 and buy from him 100 capsules of heroin and 100 of cocaine. Appellee appeared at the agreed time and place. Gabrys arrested him and searched him but found no drugs. Appellee told Gabrys the license number of a cab he had just parked. Gabrys found the cab, searched it without a warrant, and seized narcotics concealed in it.

Appellee was indicted on four counts. Counts 1 and 2 charged the sale of narcotics on September 21. Counts 3 and 4 charged purchase and concealment of narcotics 1 on September 23. On October 31 appellee moved, before trial, to suppress the seized evidence on the ground that the search and seizure were illegal. The District Court held a hearing on this motion. Gabrys testified to the facts we have stated. There was no other testimony.

The court granted the motion to suppress. Since this left no substantial evidence in support of counts 3 and 4, appellee would necessarily have been acquitted on these counts if the government had gone to trial. It would then have been too late for review and possible reversal of the order of suppression, since the rule against double jeopardy would have prevented appellee from being tried again. Accordingly the government moved to dismiss counts 3 and 4, and they were dismissed. 2 The government afterwards took this appeal, not from the order dismissing the indictment but from the order suppressing the evidence. If this order is reversed before the statute of limitations runs, the government plans to reindict appellee and try him. Accordingly the appeal is not moot.

The government says appellee did not claim any interest in the cab or the drugs and therefore cannot complain of the search and seizure. This point is somewhat technical. We need not consider it since the government's other contentions, with which we agree, require reversal of the court's order.

We think the search and seizure were legal and the evidence should not have been suppressed. The 'Fourth Amendment has been construed * * * as recognizing the necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband

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goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved * * * if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.' Carroll v. United States, 267 U.S. 132, 153, 149, 45 S.Ct. 280, 285, 283, 69 L.Ed. 543. Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. There was nothing unreasonable in the belief of Gabrys that appellee was keeping an appointment to sell drugs and that since the drugs were not on his person they were in the cab.

At least in the District of Columbia Circuit 3 the right of appeal of the United States in criminal cases is not limited to the few instances named in the federal Criminal Code, 18 U.S.C. (Supp. V) § 3731. For Congress has provided in the District of Columbia Code that 'In all criminal prosecutions the United States of the District of Columbia, as the case may be, shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions: Provided, That if on such appeal it shall be found that there was error in the rulings of the court during a trial, a verdict in favor of the defendant shall not be set aside.' D.C. Code (1940), (1951), Sec. 23-105. 4 It follows that, so far as now material, the right of appeal of the United States is governed by the provision of the federal Judicial Code that 'The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States * * * except where a direct review may be had in the Supreme Court.' 28 U.S.C. (Supp. V) §...

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