385 U.S. 206 (1966), 36, Lewis v. United States

Docket Nº:No. 36
Citation:385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312
Party Name:Lewis v. United States
Case Date:December 12, 1966
Court:United States Supreme Court

Page 206

385 U.S. 206 (1966)

87 S.Ct. 424, 17 L.Ed.2d 312



United States

No. 36

United States Supreme Court

Dec. 12, 1966

Argued October 17, 1966




An undercover federal narcotics agent, by misrepresenting his identity on the telephone, was twice invited to the home of petitioner for the purpose of executing unlawful narcotics transactions. Petitioner was thereafter indicted and convicted under 26 U.S.C. § 4742(a). Rejecting petitioner's motion to suppress the purchased narcotics as illegally seized without a warrant, the trial court found petitioner guilty, and the Court of Appeals affirmed.

Held: the facts of this case present no violation of the Fourth Amendment.

(a) The Government's use of decoy's and undercover agents is not per se unlawful. Pp. 208-209.

(b) The petitioner invited the agent to his home for the very purpose of illegally selling him narcotics. Gouled v. United States, 255 U.S. 298 (1921), distinguished. Pp. 209-210.

(c) When the home is opened as a place of illegal business to which outsiders are invited for commercial purposes, the Fourth Amendment is not violated when a government agent enters pursuant to an invitation and then neither sees, hears, nor takes anything either unrelated to the business purpose of his visit or not contemplated by the occupant. P. 211.

352 F.2d 799 affirmed.

WARREN, J., lead opinion

MR. JUSTICE WARREN delivered the opinion of the Court.

The question for resolution here is whether the Fourth Amendment was violated when a federal narcotics agent,

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by misrepresenting his identity and stating his willingness to purchase narcotics, was invited into petitioner's home, where an unlawful narcotics transaction was consummated, and the narcotics were thereafter introduced at petitioner's criminal trial over his objection. We hold that, under the facts of this case, it was not. Those facts are not disputed, and may be briefly stated as follows:

On December 3, 1964, Edward Cass, an undercover federal narcotics agent, telephoned petitioner's home to inquire about the possibility of purchasing marihuana. Cass, who previously had not met or dealt with petitioner, falsely identified himself as one "Jimmy the Pollack [sic]," and stated that a mutual friend had told him petitioner might be able to supply marihuana. In response, petitioner said, "Yes. I believe, Jimmy, I can take care of you," and then directed Cass to his home, where, it was indicated, a sale of marihuana would occur. Cass drove to petitioner's home, knocked on the door, identified himself as "Jim," and was admitted. After discussing the possibility of regular future dealings at a discounted price, petitioner led Cass to a package located on the front porch of his home. Cass gave petitioner $50, took the package, and left the premises. The package contained five bags of marihuana.1 On December 17, 1964, a similar transaction took place, beginning with a phone conversation in which Cass identified himself as "Jimmy the Pollack" and ending with an invited visit by Cass to petitioner's home, where a second sale of marihuana occurred. Once again, Cass paid petitioner

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$50, but this time he received in return a package containing six bags of marihuana.2

Petitioner was arrested on April 27, 1965, and charged by a two-count indictment with violations of the narcotics laws [87 S.Ct. 426] relating to transfers of marihuana. 26 U.S.C. § 4742(a). A pretrial motion to suppress as evidence the marihuana and the conversations between petitioner and the agent was denied, and they were introduced at the trial. The District Court, sitting without a jury, convicted petitioner on both counts and imposed concurrent five-year penitentiary sentences. The Court of Appeals for the First Circuit affirmed, 352 F.2d 799, and we granted certiorari, 382 U.S. 1024.

Petitioner does not argue that he was entrapped, as he could not, on the facts of this case;3 nor does he contend that a search of his home was made, or that anything other than the purchased narcotics was taken away. His only contentions are that, in the absence of a warrant, any official intrusion upon the privacy of a home constitutes a Fourth Amendment violation, and that the fact the suspect invited the intrusion cannot be held a waiver when the invitation was induced by fraud and deception.

Both petitioner and the Government recognize the necessity for some undercover police activity, and both concede that the particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception.4 Indeed, it has long been acknowledged

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by the decisions of this Court, see Grimm v. United States, 156 U.S. 604, 610 (1895), and Andrews v. United States, 162 U.S. 420, 423 (1896),5 that, in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents. The various protections of the Bill of Rights, of course, provide checks upon such official deception for the protection of the individual. See, e.g., Massiah v. United States, 377 U.S. 201 (1964); Trupiano v. United States, 334 U.S. 699 (1948).

Petitioner argues that the Government overstepped the constitutional bounds in this case, and places principal reliance on Gouled v. United States, 255 U.S. 298 (1921). But a short statement of that case will demonstrate how misplaced his reliance is. There, a business acquaintance of the petitioner, acting under orders of federal officers, obtained entry into the petitioner's office by falsely representing that he intended only to pay a social [87 S.Ct. 427] visit. In the petitioner's absence, however, the

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intruder secretly ransacked the office and seized certain private papers of an incriminating nature. This Court had no difficulty concluding that the Fourth Amendment had been violated by the secret and general ransacking, notwithstanding that the initial intrusion was occasioned by a fraudulently obtained invitation, rather than by force or stealth.

In the instant case, on the other hand, the petitioner invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics....

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