Agnello v. United States

Decision Date29 March 1923
Docket Number156.
Citation290 F. 671
PartiesAGNELLO et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Second Circuit

O'Gorman Battle, Vandiver & Levy, of New York City (George Gordon Battle, Isaac H. Levy, and George C. DeLacy, all of New York City, of counsel), for plaintiffs in error.

Ralph C. Greene, U.S. Atty., of Brooklyn, N.Y. (Guy O. Walser Asst. U.S. Atty., of New York City, of counsel), for the United States.

Before HOUGH, ROGERS, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The defendants have been convicted under an indictment which charged them with the crime of conspiracy to commit the offense of selling heroin and cocaine without having registered or paid the tax prescribed and in violation of the Act of December 17, 1914 (38 St. c. 1, p. 785) as amended by sections 1006, 1007, and 1008 of the Revenue Act of 1918 (40 St. c. 18, pp. 1057-1132 (Comp. St. Ann. Supp. 1919, Secs 6287g, 6287l, 6287r)), commonly known as the Harrison Act. Each defendant has been sentenced to be imprisoned for a term of two years at Atlanta Penitentiary and to pay a fine of $5,000.

The indictment contained two counts. The first charged the offense of conspiring to sell heroin and cocaine in violation of the Harrison Act. The second charged the actual sale of heroin and cocaine in violation of the act. At the trial and after the testimony was in the defendants moved to dismiss the second count on the ground that it did not allege that the offense occurred within the jurisdiction. This motion was granted and the second count was dismissed as to each of the defendants.

The salient facts are few and simple. On Saturday, January 14th, the defendants Alba and Centerino were approached by two agents in the employ of the government who stated that they desired to buy some narcotics. The agents were told to return on the following Monday night. At that time they again met Alba and Centerino and were then told that the narcotics would have to be procured. They waited at the house of Alba in Brooklyn while Centerino left for the purpose of obtaining the narcotics. Centerino returned with the defendants, Thomas Agnello, Frank Agnello, and James Pace. Centerino placed three or four packages on the table and received from Napolitano the sum of $350 in marked bills. There is testimony to the effect that at the time the packages were placed on the table the defendant Pace asked the stool pigeons if they had the money and were ready for business, and when one of them said 'Yes' Frank Agnello took the packages out of his pocket and handed them to Thomas Agnello, who put them on the table.

At this point other agents of the government, who had accompanied the two agents already in the house and who had been waiting on the outside and had observed through a window what took place inside, broke into the room and arrested all the defendants. There were found on the person of Frank Agnello three or four other packages containing cocaine. Thomas Agnello was taken into another room and questioned, whereupon he sought to bribe one of the agents. Following this, several of the agents went to No. 167 Columbia street, Brooklyn, which was occupied as a grocery store and also as a residence by the Agnellos. This was the place from which Centerino, Thomas Agnello, Frank Agnello, and James Pace were seen by the agents to leave just after Centerino had gone there to procure the narcotics and from which the defendants returned to the home of Alba with narcotics. On top of a wardrobe in the room occupied by Frank Agnello there was found a can containing cocaine hydrochloride which the agents took into their possession.

It is claimed that the testimony that a can of cocaine hydrochloride was found in the room of Frank Agnello was improperly admitted in evidence, since it was obtained through an unlawful search. And this is the important question in the case. It seems to be admitted that the agents had the right to arrest these defendants without a warrant and had a right without a warrant to search their persons-- a crime having been committed in their presence. But it is denied that the agents had any right to go from the place of the arrest to No. 167 Columbia street, from which all the defendants but Alba were seen by the agents to emerge a short time before and from which they were supposed to have obtained the drugs which Centerino had informed the government's agent he was going out to get and there search without a warrant the room of the defendant Frank Agnello. The question thus raised is one of great importance. May an agent of the government, in a case where he can arrest without a warrant and search the person without a warrant, search also without a warrant the home of the person so arrested? Is such a search and seizure to be regarded as such an 'unreasonable' search and seizure as violated the constitutional rights of Frank Agnello? If it constituted such a violation, we must consider whether the property so seized was improperly received in evidence.

The weight of state authority holds that evidence obtained by an unconstitutional seizure is as much admissible as any other evidence secured by illegal means. Commonwealth v. Dana, 2 Metc. (Mass.) 329; Commonwealth v. Tibbetts, 157 Mass. 519, 32 N.E. 910; Chastang v. State, 83 Ala. 29, 3 So. 304; Scott v. State, 113 Ala. 64, 21 So. 425; Starchman v. State, 62 Ark. 538, 36 S.W. 940; People v. Alden, 113 Cal. 264, 45 P. 327; State v. Griswold, 67 Conn. 290, 34 A. 1046, 33 L.R.A. 227; Williams v. State, 100 Ga. 511, 28 S.E. 624, 39 L.R.A. 269; Stevison v. Earnest, 80 Ill. 513, 517; Trask v. People, 151 Ill. 523, 38 N.E. 248; State v. Renaud, 50 La.Ann. 662, 23 So. 894; Chuett v. Rosenthal, 100 Mich. 193, 197, 58 N.W. 1009, 43 Am.St.Rep. 446; State v. Pomeroy, 130 Mo. 489, 497, 32 S.W. 1002; State v. Atkinson, 40 S.C. 363, 371, 18 S.E. 1021, 42 Am.St.Rep. 877; State v. Mathers, 64 Vt. 101, 23 A. 590, 15 L.R.A. 268, 33 Am.St.Rep. 921; State v. Edwards, 51 W.Va. 220, 41 S.E. 429, 59 L.R.A. 465. In Wigmore on Evidence, vol. 3, Sec. 2183, it is laid down that it has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain it. And see Harvard Law Review, vol. 35, p. 694.

The federal courts long followed the rule that a collateral inquiry into the mode in which evidence had been obtained would not be allowed when the question was raised for the first time at the trial. See Adams v. New York, 192 U.S. 585, 24 Sup.Ct. 372, 48 L.Ed. 575; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 Sup.Ct. 182, 64 L.Ed. 319. In Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, the court held that if an application for the return of papers unlawfully seized was made before trial and refused, and then at the trial the papers were received in evidence, over objection, the judgment should be reversed. The same doctrine was laid down in Gouled v. United States, 255 U.S. 298, 41 Sup.Ct. 261, 65 L.Ed. 647. That case also asserted that an objection should be sustained and the evidence excluded although raised for the first time at the trial where the paper had been improperly seized but the defendant had no knowledge that the government had possession of the paper until it was offered in evidence. The court said, 'A rule of practice must not be allowed for any technical reason to prevail over a constitutional right. ' In Amos v. United States, 255 U.S. 213, 313, 41 Sup.Ct. 266, 65 L.Ed. 654, it was held that if it is clear and undisputed that property used in evidence against a defendant on a criminal trial was procured by the government through an unconstitutional search and seizure, his petition for its return is not too late when made immediately after the jury is sworn, and that his motion to exclude the property and testimony concerning it from evidence should not be denied as inviting a collateral issue.

In the case at bar no application for the return of the property alleged to have been unlawfully seized was made either before or at the time of trial. But the evidence that the can was found in the room searched without a warrant was objected to when it was offered on the ground that it violated the defendant's constitutional rights, in that the government had obtained possession of it through an unlawful search and seizure. The court overruled the objection and admitted the evidence. This we think would have been error under the decisions in the Gouled and Amos Cases-- if the seizure had been made in violation of the constitutional provisions now to be considered. To hold otherwise would be to allow a rule of procedure to triumph over a constitutional right, and this the federal courts cannot suffer to be done.

The Fourth Amendment to the Constitution declares that--

'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The Fifth Amendment declares, among other things, that no person 'shall be compelled in any criminal case to be a witness against himself. ' And the same article also declares that no person shall be deprived of property 'without due process of law.'

It may be remarked in passing, as the courts have frequently pointed out, that the unreasonable searches and seizures prohibited by the Fourth Amendment are almost always made to obtain evidence and thus indirectly, in a criminal case, compel a man to give evidence against himself which in that...

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