Robinson v. United States

• Citation: 327 F.2d 618
• Decision Date: 06 February 1964
• Docket Number: No. 17094.,17094.
• Parties: Carroll ROBINSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

327 F.2d 618 (1964)

Carroll ROBINSON, Appellant, v. UNITED STATES of America, Appellee.

No. 17094.

United States Court of Appeals Eighth Circuit.

February 6, 1964.

Douglas W. Thomson, (court appointed), St. Paul, Minn., made argument for the appellant and filed brief.

Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., made argument for the appellee and filed brief with Miles W. Lord, U. S. Atty., Minneapolis, Minn.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and DAVIES, District Judge.

BLACKMUN, Circuit Judge.

This case is before us for the second time. See Robinson v. United States, 304 F.2d 805 (8 Cir. 1962).

Carroll Robinson was convicted by a jury on all six counts of an indictment charging him with violations on April 4, 1961, and again on May 5, 1961, of federal marihuana statutes, namely, 26 U.S. C. § 4742(a) transfer without proper written order, 26 U.S.C. § 4744(a) (1) non-payment of the transfer tax, and 21 U.S.C. § 176a receipt and concealment. When the government then established Robinson's status as a second offender, the trial court imposed a general sentence for the minimum of ten years prescribed by 26 U.S.C. § 7237(b).

The defendant sought leave from the district court to have a transcript prepared at government expense and to appeal in forma pauperis. Judge Nordbye, in an opinion reproduced in full at pp. 805-807 of 304 F.2d, concluded that the appeal was frivolous and not taken in good faith. He permitted the filing of the appeal without fee but otherwise denied the defendant's petition.

Robinson then applied to this court. Upon our order the defense filed a report setting forth alleged errors. When this was done, we allowed the docketing of the appeal without fee, and dismissed the matter as "plainly frivolous". 304 F.2d 805, 810.

The defendant filed with the Supreme Court his petition for certiorari. The Solicitor General, in his response, observed that the grounds set forth in the report to this court were, except for one, "plainly frivolous"; that as to that one — that certain exhibits admitted in evidence were the product of an unlawful arrest and an unreasonable search — there was "a sound basis for concluding that this ground of objection was foreclosed in the court of appeals and is foreclosed in this court"; and that "Accordingly, we think that there are ample grounds for affirmance of the judgment of conviction". Nevertheless, he went on to state that "it is also clear that after full briefs and argument, * * * the question, i. e., whether the district judge should have taken notice of the possible illegality of the arrest, might well appear in a different light than upon a summary presentation merely calling attention to the point to be raised". Consequently, he suggested that "the Court may deem it proper to vacate the judgment below and remand the cause to the court of appeals with directions to allow the appeal". The Supreme Court responded in exactly that way, granted certiorari, vacated the judgment, and, "in accordance with the suggestion of the Solicitor General, the case is remanded * * * with directions to allow the appeal in forma pauperis". Robinson v. United States, 372 U.S. 527, 83 S.Ct. 888, 9 L.Ed.2d 966 (1963). Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), which we had noted at pp. 809-810 of 304 F.2d, was cited as the supporting authority. The case is now before us in response to those directions and upon a complete transcript. Under these circumstances, we give it treatment in depth in all respects.

The facts are not in any real dispute. Robinson in 1961 lived with his girl Eunice in an upper duplex in Minneapolis. Wilson Sanders was the usual informer engaged and paid by the Federal Bureau of Narcotics. Sanders had a prior record and admitted occasional smoking of marihuana. On the morning of April 4, 1961, he advised a Minneapolis police officer that he had arranged to purchase heroin from Robinson. He met the officer and a federal narcotics agent. An interim telephone call to Robinson gave Wilson the information that marihuana, not heroin, was available. He was searched and given money. He was then observed entering the house where Robinson lived. When he emerged a few minutes later he had a small manila envelope containing a substance later identified as marihuana. Sanders testified that he purchased this from Robinson and Eunice for $10 and that the defendant took it out of a drawer. Essentially the same thing happened again close to midnight on May 5, 1961. On that occasion, however, Robinson came out of the house and handed a small plastic bottle containing marihuana to Sanders in the latter's car. Sanders gave him $10.

Eight weeks later at six o'clock on the morning of June 30, 1961, but during daylight, three Minneapolis police officers and a federal narcotics agent came to Robinson's house armed with warrants of arrest for Robinson and Eunice for violation of federal marihuana laws, but with no search warrant. The agent and one officer went to the front door and the other two to the rear. The agent testified that he "knocked with the barrel of my gun * * * for about two minutes at the front door"; that he and the officer were then admitted by the other two who had gained entrance at the rear by kicking in the door; that all four went upstairs and found the defendant and Eunice naked in bed; that they arrested them; that the four did not leave the room while Robinson and Eunice dressed; and that they had Eunice cover up with a sheet. There was no evidence as to any announcement, before entry, of authority and purpose.

The arresting officers searched Robinson's quarters. These consisted of a bedroom, living room, another small room, kitchen and bath. The search included looking into suitcases, drawers, and "sort of a file box" which was in the living room. In it the officers found seven small manila envelopes and two packages of cigarette papers. The envelopes were identical with the one used by Robinson in the transaction of April 4. No marihuana was found. The nine items were admitted in evidence over defense objections made at the time of the offer¹ and again at the close of the government's case.²

The defendant did not take the stand.

No question is now raised about (a) Robinson's identity as Sanders' vendor (the record contains testimony that Robinson was well known to Minneapolis police and federal agents); (b) the identity of the vended substances as marihuana; (c) their having been in Robinson's possession; (d) non-use of the statutory order form; (e) non-payment of the transfer tax; (f) the validity of the arrest warrants; and (g) the sufficiency of the evidence to sustain the convictions.

The defense, however, asserts here (1) that the envelopes and packages were not admissible in evidence because the arrest was improper and the search unreasonable; (2) that the trial court's repeated references, in its charge, to marihuana as a narcotic drug were unfairly prejudicial; and (3) that the presumption, contained in 21 U.S.C. § 176a, of illegal importation flowing from unexplained possession, upon which two of the six counts rest, was inapplicable under the facts.

1. The envelopes and papers. In view of the Solicitor General's suggestion and the Supreme Court's response thereto, we must assume that the admission of at least the envelopes presents a question of prejudicial rather than harmless cumulative material, or at least a question of "departure from a constitutional norm", Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946); Homan v. United States, 279 F.2d 767, 771 (8 Cir. 1960), cert. denied 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88. Whether as much could be said for the cigarette papers is highly questionable; at least they are of no additional pertinency here.

If the arrest was lawful, then, even in the absence of a search warrant, "there is a permissible area of search beyond the person proper". United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 433, 94 L.Ed. 653 (1950); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925). Also, if the arrest was lawful, and viewing the case on its particular facts, Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931), we would have no difficulty in finding this search to have been a reasonable one and appropriately limited, within the scope established by United States v. Rabinowitz, supra, although beyond the adjoining bedroom where the defendant was arrested. That result would be required by the decisions in Harris v. United States, 331 U.S. 145, 150-154, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and Abel v. United States, 362 U.S. 217, 237-238, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). See Ker v. California, 374 U.S. 23, 42, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Despite the nature of the search, in that drawers, suit cases and the box were looked into, and despite one of the agent's stating that after the arrest their next move "was to search the premises", we do not find here a general exploratory search or fishing expedition of the kind condemned in Go-Bart, supra, and in United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). There was sufficient and appropriate specificity, namely, marihuana and the container employed for its transfer. Neither was it a search for "merely evidentiary materials", within the ban of Harris v. United States, supra, p. 154 of 331 U.S., p. 1103 of 67 S.Ct. and Gouled v. United States, 255 U.S. 298, 310, 41 S.Ct. 261, 65 L.Ed. 647 (1921). The objects in question were "instrumentalities and means by which a crime is committed". This result seems clear enough from these decisions regardless of the Supreme Court's recent observation that there are elements of irreconcilability among these cases. Abel v. United States, supra, p. 235 of 362 U.S., p. 695 of 80 S.Ct.

But if the arrest was...