269 U.S. 20 (1925), 6, Agnello v. United States

Docket Nº:No. 6
Citation:269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145
Party Name:Agnello v. United States
Case Date:October 12, 1925
Court:United States Supreme Court

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269 U.S. 20 (1925)

46 S.Ct. 4, 70 L.Ed. 145



United States

No. 6

United States Supreme Court

October 12, 1925

Argued April 23, 1925




1. The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. P. 30.

2. But this right, which is incidental to the arrest, cannot extend to the search of a man's dwelling, several blocks distant from the place of his arrest, after the offense has been committed and while he is in custody elsewhere. Carroll v. United States, 267 U.S. 132, distinguished. Id.

3. So held assuming that the house searched, which was the house of one A who had shortly before been arrested with others who were in the act of consummating a conspiracy to violate the Anti-Narcotic Act by selling cocaine without having registered and paid the prescribed tax, was the place from which the cocaine sold had been taken by some of the defendants to the place of sale, and that other cocaine, discovered in the house by the search, was there in A's control in violation of the Act, was subject to forfeiture thereunder, and was part of the cocaine constituting the subject matter of the conspiracy. Id.

4. Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search in the house without a warrant; such searches are unlawful notwithstanding facts unquestionably showing probable cause. P. 32.

5. When properly invoked, the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment. P. 33.

6. Where, by uncontroverted facts, it appears that a search and seizure were made in violation of the Fourth Amendment, there is no reason why one whose rights have been so violated and whom it is sought to incriminate by evidence so obtained may not invoke protection of the Fifth Amendment immediately, by objection

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to the evidence, without having made any application for the return of the thing seized. P. 34.

7. Evidence of an unlawful search of an accused person's house and of seizure therein of an incriminating article cannot be introduced against him at the trial as evidence in rebuttal of his testimony on cross-examination that he never saw the article. P. 35.

8. Where several are tried jointly and convicted for conspiracy, erroneous admission of evidence of an unlawful search and seizure in the dwelling of one will not require a reversal as to the other if the evidence was adduced only against the one, in proof of guilty knowledge and intent in performing acts with the others for executing the conspiracy, since they would be equally guilty whether he acted as guilty participant or as their innocent agent. P. 35.

20 F. 671 reversed in part, affirmed in part.

Certiorari to a judgment of the circuit court of appeals affirming a conviction and judgment in the district court on a prosecution of the petitioners (named in the opinion) for conspiracy to violate the Federal Narcotic Tax Act.

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BUTLER, J., lead opinion

MR. JUSTICE BUTLER delivered the opinion of the Court.

Thomas Agnello, Frank Agnello, Stephen Alba, Antonio Centorino, and Thomas Pace were indicted in the District Court, Eastern District of New York, under § 37, Criminal Code, 35 Stat. 1088, 1096, c. 321 for a conspiracy to violate the Harrison Act, 38 Stat. 785, c. 1, as amended by

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§§ 1006, 1007, 1008 of the Revenue Act of 1918, c. 18, 40 Stat. 1057, 1130. The indictment charges that defendants conspired together to sell cocaine without having registered with the collector of internal Revenue and without having paid the prescribed tax. The overt acts charged are that defendants had cocaine in their possession, solicited the sale of it, met in the home of defendant Alba at 138 Union Street, Brooklyn, and made arrangements for the purpose of selling it, brought a large quantity of it to that place, and sold it in violation of the Act. The jury found defendants guilty. Each was sentenced to serve two years in the penitentiary and to pay a fine of $5,000. The circuit court of appeals affirmed the judgment. 290 F. 671.

[46 S.Ct. 5] The evidence introduced by the government was sufficient to warrant a finding of the following facts: Paspuale Napolitano and Nunzio Dispenza, employed by government revenue agents for that purpose, went to the home of Alba, Saturday, January 14, 1922, and there offered by buy narcotics from Alba and Centorino. Alba gave them some samples. They arranged to come again on Monday following. They returned at the time agreed. Six revenue agents and a city policeman followed them and remained on watch outside. Alba left the house and returned with Centorino. They did not then produce any drug. After discussion and the refusal of Napolitano and Dispenza to go to Centorino's house to get the drug, Centorino went to fetch it. He was followed by some of the agents. He first went to his own house, 172 Columbia Street; thence to 167 Columbia Street, one part of which was a grocery store belonging to Pace and Thomas Agnello, and another part of which, connected with the grocery store, was the home of Frank Agnello and Pace. In a short time, Centorino, Pace, and the Agnellos came out of the last-mentioned place, and all went to Alba's house. Looking through the windows, those on watch saw

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Frank Agnello produce a number of small packages for delivery to Napolitano and saw the letter hand over money to Alba. Upon the apparent consummation of the sale, the agents rushed in and arrested all the defendants. They found some of the packages on the table where the transaction took place, and found others in the pockets of Frank Agnello. All contained cocaine. On searching Alba, they found the money given him by Napolitano.

And, as a part of its case in chief, the government offered testimony tending to show that, while some of the revenue agents were taking the defendants to the police station, the others and the city policeman went to the home of Centorino and searched it, but did not find any narcotics; that they then went to 167 Columbia Street and searched it, and in Frank Agnello's bedroom found a can of cocaine, which was produced and offered in evidence. The evidence was excluded on the ground that the search and seizure were made without a search warrant. In defense, Centorino and others gave testimony to the effect that the packages of cocaine which were brought to and seized in Alba's house at the time of the arrests had been furnished to Centorino by Dispenza to induce an apparent sale of cocaine to Napolitano -- that is, to incite crime or acts having the appearance of crime for the purpose of entrapping and punishing defendants. Centorino testified that, after leaving Napolitano and Dispenza with Alba at the latter's home, he went to his own house and got the packages of cocaine which had been given him by Dispenza, and took them to 167 Columbia Street, and there a gave them to Frank Agnello to be taken to Alba's house. Frank Agnello testified on direct examination that he received the packages from Centorino, but that he did not know their contents, and that he would not have carried them if he had known that they contained cocaine or narcotics. On cross-examination, he said that he had never seen narcotics. Then, notwithstanding objection

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by defendants, the prosecuting attorney produced the can of cocaine which the government claimed was seized in Agnello's bedroom and asked him whether he had ever seen it. He said he had not, and specifically stated he had never seen it in his house....

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