United States v. Dornblut, 140

• Decision Date: 29 December 1958
• Docket Number: No. 140,Docket 24903.,140
• Citation: 261 F.2d 949
• Parties: UNITED STATES of America, Appellee, v. George Ludwig DORNBLUT, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

261 F.2d 949 (1958)

UNITED STATES of America, Appellee, v. George Ludwig DORNBLUT, Appellant.

No. 140, Docket 24903.

United States Court of Appeals Second Circuit.

Argued November 14, 1958.

Decided December 29, 1958.

C. Joseph Hallinan, Jr., New York City, for appellant.

Robert B. Fiske, Jr., Asst. U. S. Atty., S. D. New York, New York City (Arthur H. Christy, U. S. Atty., and George I. Gordon, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before HINCKS, LUMBARD and MOORE, Circuit Judges.

LUMBARD, Circuit Judge.

This appeal turns principally on whether the district court was justified in denying defendant Dornblut's pretrial motion to suppress evidence consisting of a five dollar bill seized on May 22, 1957 during the alleged illegal search of his apartment at 235 West 75th Street, New York, N. Y. without a warrant and allegedly without his consent. There was ample evidence to support the charge in Count 2 that on May 22, 1957 Dornblut received, sold and facilitated the transportation, concealment and sale of heroin in violation of 21 U.S.C.A. §§ 173 and 174. We find no error in Judge Sugarman's denial of the motion to suppress, or in the conduct of the trial by Judge Weinfeld and accordingly we affirm the conviction.

The facts regarding the search and seizure at Dornblut's apartment were developed at a pretrial hearing at which defendant called as his only witnesses all five federal narcotics agents who participated in the search. Briefly summarized they are:

On May 22, after Dorothy Dinolfo had been arrested for delivering narcotics to Agent Groff, for which he had previously given her money, Dinolfo advised the agents that she had been supplied at apartment 4S1 at 235 West 75th Street by "George," whose picture she identified. Thereafter agents Groff, Knight and Boring went with Dinolfo to the apartment; but receiving no response they left after waiting an hour or so.

Meanwhile two other agents, Consoli and King, who were working independently on the basis of other information, went to the lobby of the apartment house and saw a woman named Sherry go upstairs and return a few minutes later with Dornblut. Consoli and King then identified themselves to Dornblut and said they wanted to speak to him. Dornblut suggested they go upstairs to his room. They went up to apartment 4S1 where Dornblut opened the door with his key. He told the agents he was George Ludwig of the Daily News,¹ that he did not know anything about narcotics and that they were "perfectly free to look around and search the room." Consoli and King found nothing during a twenty minute search and returned to the lobby. When Dornblut reappeared in the lobby with Sherry they realized they had not secured sufficient identification and they asked Dornblut if he would show them some identification. Dornblut then said they could go up to his room and see it and all three returned to the room. When they reached the fourth floor they met Agents Groff, Knight and Boring who had returned and were waiting in the hallway. Dornblut again opened the door with his key saying to the agents "Go right in. You can look around." And to Knight Dornblut said that there were no narcotics there but he could look around and search the apartment. During this second search King discovered a roll of bills totalling about $40 which was shoved down between the back and the springs of an upholstered chair. A five dollar bill in the roll was identified by its numbers as one of the bills given to Dinolfo by Groff earlier in the evening. Whereupon Dornblut was arrested.

On this testimony Judge Sugarman found that "the defendant voluntarily admitted the agents to his apartment" and that he invited them to make the search. On such a record it is difficult to see how Judge Sugarman could have found otherwise. Obviously Dornblut knew, from his manner of supplying Dorothy Dinolfo and Sherry, that no narcotics could be found in his apartment and, as he never thought that any of the bills given him by Dorothy Dinolfo would be tell-tale, he was confident that the stratagem of inviting the agents to search would be the best way of dispelling their suspicions.

Of course the search and seizure in each case must stand or fall on its own special facts, and in the district court's judgment of the credibility of the witnesses. We have sustained district court findings of consent to search on facts far more doubtful than those which were before the district court here. See e.g., United States v. Adelman, 2 Cir., 1939, 107 F.2d 497; United States v. Bianco, 2 Cir., 1938, 96 F.2d 97. See also United States v. McLeod, 7 Cir., 1953, 207 F.2d 853, which we think correctly distinguished the case of Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. Contra, Higgins v. United States, 1954, 93 U.S.App.D.C. 340, 209 F.2d 819. In the Johnson case the officers, under color of authority, procured entry to a...