Williams v. United States

Decision Date21 October 1958
Docket NumberNo. 15933.,15933.
Citation260 F.2d 125
PartiesFelix WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Raymond J. Kempe, St. Paul, Minn. (Mogren & Kempe, St. Paul, Minn., on the brief), for appellant.

Clifford Janes, Asst. U. S. Atty., St. Paul, Minn., for appellee.

Before SANBORN, WOODROUGH and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

Felix Williams was indicted and convicted by a jury on all 12 counts of an indictment dealing with the alleged illegal handling of marihuana and heroin. Counts 1, 3, 5 and 7 charged the appellant with having transferred marihuana not in pursuance of a written order form and in violation of 26 U.S.C.A. § 4742. Upon a verdict of guilty as to these four counts, he received a general sentence of 35 years. Counts 2, 4, 6, 8 and 10 charged the appellant with having obtained and acquired marihuana without having paid the tax imposed by 26 U.S.C.A. § 4741, in violation of 26 U.S.C.A. § 4744. Count 12 charged the appellant with having purchased heroin in violation of 26 U.S.C.A. § 4704(a). Upon a verdict of guilty as to Counts 2, 4, 6, 8, 10 and 12, the appellant received a general sentence of 20 years. Count 9 charged concealment and transportation of marihuana, in violation of 21 U.S.C.A. § 176 and Count 11 charged concealment and transportation of heroin, in violation of 21 U.S.C.A. § 174. Upon a guilty verdict as to these two counts, the appellant received a general sentence of 35 years. The trial court directed that the three general sentences be served concurrently and not consecutively, amounting to an over-all general sentence of 35 years.

On appeal to this court, the appellant sets forth five claimed errors. The first three have to do with evidence obtained in a search and seizure claimed to be unlawful and will be considered together. Point No. 4 is, "The court erred in receiving Exhibit 26 and the testimony of Robert Lorenz as to non-possession of an official order form covering transfer of marijuana." Point No. 5 was, "The court erred in failing to grant appellant's motion for verdict of acquittal notwithstanding the verdict or for a new trial."

A recitation of the evidence with reference to the alleged violations and the arrest, search and seizure is a prerequisite to an understanding of the issues. Felix Williams, the appellant, had a history of narcotic violation. He was suspected of continued trafficking in narcotics and had been under surveillance by the Minneapolis Police Department and Federal Narcotics Agents since his release from prison. The testimony regarding the alleged violations herein falls roughly into five transactions involving the various 12 counts. As to Counts 1 and 2, the testimony indicates that Betty Ann Fleming and Jacqueline Crump, two teen-age high school girls, went to the appellant's room where they received three marihuana cigarettes, the appellant being present at the time. They consumed the cigarettes in the appellant's room in his presence. No other persons were there at the time. The transaction occurred on a Sunday in January or February, 1957.

The next transaction involves Counts 3 and 4. Jacqueline Crump went to the appellant's room alone toward the last of February, 1957. There she bought from the appellant $5.00 worth of marihuana in bulk, enough to make about ten cigarettes. She paid the appellant $5.00 for the marihuana. She smoked some of it and got sick and dizzy.

Counts 5 and 6 involve the so-called Jacqueline Glenn transaction which occurred in February or early March, 1957. The appellant met Jacqueline Glenn in Dugan's Bar on 3rd and Washington Avenue South, Minneapolis, and asked her if she wanted "to be turned on". An affirmative response and $2.00 resulted in the appellant handing her "two sticks", being two marihuana cigarettes. The witness, Mrs. Glenn, had smoked marihuana on other occasions and knew marihuana when she smoked it. Mrs. Glenn got another "stick" from appellant sometime after this transaction.

Counts 7 and 8 involve the Jacqueline Crump-Michael Stinski-Jules LaBrie transaction. On March 30, 1957, Jacqueline Crump, then aged 15, Jules LaBrie, aged 17, and Michael Stinski, aged 17, were together. The boys gave Jacqueline $3.00 and she had $2.00 of her own. She took this money to the appellant's room, where she told him she wanted $5.00 worth of marihuana. No one else was present. He gave her the marihuana in some Kleenex. After Jacqueline had rolled three cigarettes there, she took the marihuana back to the boys in the car and they rode around and smoked, also drinking brandy. Michael Stinski became ill that night, and had to be taken to a hospital. The testimony of the three witnesses plus the testimony of the doctor who cared for Michael Stinski fully justified the conclusion that the substance sold to Jacqueline Crump was marihuana.

The transaction of April 3, 1957, is the basis for Counts 9, 10, 11 and 12, and involves the alleged improper search and seizure. The Minneapolis police had picked up and were holding in custody for investigation Jules LaBrie and Jacqueline Crump. On the morning of April 3, 1957, they obtained information from them with reference to the March 30, 1957, marihuana purchase from the appellant. Officer Sullivan, head of the Vice Squad, believed that he then had sufficient information to make an immediate arrest of the appellant for selling marihuana cigarettes to juveniles. The immediacy of this arrest was impelled by the fact that Betty Ann Fleming had visited the two juveniles in jail that morning. This visit caused Sullivan to fear that she would warn the appellant and cause him to flee before he could obtain a search warrant and make the arrest on the state offense. He called Robert Lorenz, Federal Narcotics Agent, and after advising him of the situation invited him to accompany the police. Sullivan, other police officers and Agent Lorenz then proceeded to the appellant's place of residence where the appellant was arrested by Sullivan. The arrest was made without warrant and pursuant to 41 Minn.Stat.Ann. 238, which provides:

"629.34.
"A peace officer may, without warrant arrest a person:
"(1) For a public offense committed or attempted in his presence;
"(2) When the person arrested has committed a felony, although not in his presence;
"(3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it; or
"(4) Upon a charge made upon reasonable cause of the commission of a felony by the person arrested.
"To make such arrest the officer may break open an outer or inner door or window of a dwelling house if, after notice of his office and purpose, he shall be refused admittance."

Williams was arrested in the hallway outside his room. Sullivan stated to Williams that he would like to look around. Williams replied, "Go ahead. You won't find anything." The search disclosed marihuana in the appellant's room and both marihuana and heroin under the carpeting of a stairway outside the appellant's room and leading up to a kitchen and a bathroom to which the appellant had access and which he used. In a pre-trial motion, the appellant sought to suppress the evidence so seized. The motion was denied. Upon this denial and the subsequent admission into evidence of the seized material error is predicated.

The appellant contends, "Where evidence is obtained by search and seizure without a search warrant and both Federal and State authorities participate in or have a hand in the search, such evidence is inadmissible." Such a statement presupposes an unlawful arrest or a lawful arrest and an unreasonable search in connection therewith. It has been demonstrated that the arrest here was lawful and apparently that is unchallenged. Accordingly, our question is whether the search without a warrant, in connection with the lawful arrest, was a reasonable one. Parenthetically, it should be noted that while the facts show that Federal Agent Lorenz, who accompanied the police officers, did not make an arrest although federal violations were involved, that under 26 U.S.C.A. § 7607 he, too, as an agent of the Bureau of Narcotics of the Treasury Department, was empowered to make arrests without warrant where he had reasonable grounds for believing that the person to be arrested had committed such a violation.

It is urged here that there was sufficient time to obtain a search warrant and that failure to do so violated appellant's constitutional rights. It was on April 3, 1957, that the police received information from the juveniles in custody that led them to believe that they had cause for an arrest on a charge of selling marihuana cigarettes to juveniles. It may be argued that the police thereupon had sufficient time to apply for and obtain a warrant for the search of appellant's premises, but we think it not unreasonable to conclude, as apparently the trial court did, that the visit received by the juveniles in custody might, and very probably would, result in the appellant's being informed of the activities of the police, his disposing of the hidden marihuana and heroin on his premises, and his departure.

As was pointed out by the Supreme Court in United States v. Rabinowitz, 1950, 339 U.S. 56, 65-66, 70 S.Ct. 430, 435, 94 L.Ed. 653:

"Whether there was time may well be dependent upon considerations other than the ticking off of minutes or hours. The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential.
"It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be
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