United States v. Rubin

• Decision Date: 13 February 1973
• Docket Number: 72-1690.,No. 72-1689,72-1689
• Citation: 474 F.2d 262
• Parties: UNITED STATES of America, Appellant, v. Paul Gary RUBIN et al. UNITED STATES of America, Appellant, v. Louis Martin AGNES a/k/a Louis Martin.
• Court: U.S. Court of Appeals — Third Circuit

474 F.2d 262 (1973)

UNITED STATES of America, Appellant, v. Paul Gary RUBIN et al.

UNITED STATES of America, Appellant, v. Louis Martin AGNES a/k/a Louis Martin.

Nos. 72-1689, 72-1690.

United States Court of Appeals, Third Circuit.

Argued December 15, 1972.

Decided February 13, 1973.

Jeffrey M. Miller, Asst. U. S. Atty., Philadelphia, Pa., for appellant.

Jonathan W. Miller, Defender Assoc. of Philadelphia Federal Court Division, Philadelphia, Pa., and Robert F. Simone, Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, and ALDISERT and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal deals with the nettlesome question of whether there were exceptional circumstances present to justify a warrantless search of a dwelling.

United States Customs agents entered a house and garage in Philadelphia without a warrant on July 28, 1971, and seized 90 pounds of hashish. Appellees Agnes and Agran, indicted for various offenses connected with importation of the hashish, successfully moved to suppress the seized evidence in the District Court for the Eastern District of Pennsylvania. The Government has appealed the suppression pursuant to 18 U.S.C. § 3731. We vacate the order and remand.

The facts surrounding the warrantless search are set out in the district court opinion:¹

Sometime during the month of July, 1971, federal customs agents received reliable information that a bronze statue containing a large shipment of illicit drugs, from a point somewhere in Europe, would be shipped to a hospital in this area. As a result of this information, agents or `look-outs\' were posted at the Philadelphia International Airport and the waterfront. On or about July 26, 1971, a crate, answering the general description given to the agents by the informant, was delivered to the Airport. Thereafter, Federal customs agents inspected the crate and statue; they then removed a small sample of the contents for chemical analysis. This sample was confirmed to be `hashish\', a controlled substance under Title 21, United States Code, Section 841(a) (1). The statue contained approximately ninety (90) pounds of `hashish\'; it was addressed to Dr. Daniel Sill of the Board sic Street Hospital; Dr. Sill is not a co-defendant to this action. Thereafter, the crate was resealed and placed under constant surveillance. Subsequently, and as expected, a pickup was made on July 28, 1971, at approximately 4:00 p. m., by two men, one of whom was identified as Louis Martin Agnes (A/K/A Louis Martin), a defendant herein. The crate was taken from the Airport by defendant Louis Agnes, by car, to 1819 S. 9th Street in Philadelphia, where it was unloaded at about 5:00 P.M.* Shortly

*It should be noted at this juncture that the agents involved had prior to the pick-up of the statue identified Louis Martin Agnes as a possible suspect and had placed the house under complete surveillance on the date in question, at approximately 10:30 A.M., some 5 hours before the statue arrived at the South Ninth Street address. District court\'s footnote 2.

thereafter, a custom\'s agent was dispatched at approximately 5:10 P.M. on July 28, 1971, to prepare and procure a search warrant. Subsequently, defendant Agnes left the South Ninth Street address at about 6:00 P.M., without the crate, but in his car. He was, of course, placed under surveillance. During this surveillance, Agent Bergin testified that `it appeared to us that the vehicle Agnes\' car was becoming evasive and aware we were behind it, and we stopped it and took the operator in custody.\' The actual arrest occurred at a gasoline station (some six blocks from Agnes\' home), between 6:20 and 6:30 p. m. As he was being taken into custody, Agnes yelled to the gas station attendants and spectators, `Call my brother\'. The agents testified that at this point they reasonably believed that there existed the `threat of destruction\' to the `hashish\', which had been delivered to defendant Agnes\' home. Thus, the agents proceeded to enter defendant\'s home in order to preserve the evidence contained therein. Once inside, the officers found the co-defendants, Earl Melvin Agran, Paul Gary Rubin, and Jan Massaar, in the process of packing the `hashish\' for possible distribution; all were arrested and the `hashish\' seized. Of course, the search was made without a warrant, and subsequent to the arrest of defendant Agnes. Upon the arrest of Agnes, Agent Moss abandoned his efforts to procure a search warrant.

The district court rejected the Government's argument that the warrantless search of 1819 South 9th Street was permissible because of the so-called "emergency doctrine." The court, apparently construing a long line of Supreme Court opinions to require that Government officials have knowledge that evidence is actually being removed or destroyed, ordered the seized evidence suppressed.

On appeal, the Government argues that the district court applied too severe a standard in reviewing the warrantless search and that the evidence should be admissible because the agents had a reasonable belief that the hashish they knew was in the residence was about to be destroyed or removed.

Appellees Agnes and Agran maintain that the strict standard applied by the district court was correct. Agnes argues further that he was arrested without a warrant or probable cause, and that this fact also necessitates suppression of the seized evidence. Agran also argues that the evidence must be suppressed because entry first into the front door of 1819 South 9th Street and then into the rear garage door was made without announcement of purpose, in violation of 18 U.S.C. § 3109. Although this issue was not ruled on by the district court, Agran and Agnes had raised it as part of their original suppression motions.

The fourth amendment protects the right of the people to be secure in their homes by providing that search warrants shall not issue "but upon probable cause, supported by Oath or affirmation." Although inferences may be drawn to support the need for a reasonable search, the amendment's protection

consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Despite the clear preference of the law for searches authorized by warrants, the Supreme Court has recognized several "exceptional circumstances"

in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate\'s warrant for search may be dispensed with.

Johnson v. United States, 333 U.S. at 14-15, 68 S.Ct. at 369. The Court noted that it might consider "exceptional circumstances" by stating that the circumstances in that case were different from one in which "evidence or contraband was threatened with removal or destruction."² 333 U.S. at 15, 68 S.Ct. at 369.

Subsequent to Johnson, the Supreme Court has in at least two cases noted that belief that evidence is being destroyed or removed might create an exceptional circumstance justifying a warrantless search. In each, the Court, nonetheless, suppressed the evidence after finding no such circumstances. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). In neither case did the Court find any surrounding circumstances indicating to police officers that the evidence was "likely to be destroyed," McDonald v. United States, 335 U.S. at 455, 69 S.Ct. 191, or faced "imminent destruction, removal, or concealment," United States v. Jeffers, 342 U.S. at 52, 72 S.Ct. 93.

The three recent Supreme Court cases which have sustained use of evidence obtained through warrantless searches offer little guidance as to the exact parameters of the emergency exception. Both Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), setting guidelines for permissible "stop and frisk" procedures, and Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L. Ed.2d 782 (1967), involving search of the premises into which a felon under "hot pursuit" had fled, were premised on the "exceptional circumstance" that police officers must be able to protect themselves from bodily harm, rather than any Government claim that evidence would be removed or destroyed. Only Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), involved the removal or destruction exception. The Court approved in Schmerber a warrantless blood test performed on an automobile driver who had been in an accident and was suspected of drinking. Although the Court found the administration of a blood test was within the area of privacy intrusions protected by the fourth amendment, it said a search warrant was not required because:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence,\' Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.

384 U.S. at 770, 86 S.Ct. at 1835. Although, if scientific knowledge were imputed to the officer in Schmerber, it could be said he had knowledge that evidence was actually being destroyed, the Court spoke of "threatened" destruction. It would seem unwise to put undue emphasis on use of the word "threatened" in Schmerber. At the same time, however, it cannot be said that the Court was requiring the officer have knowledge evidence was in the process of destruction before any warrantless search could be approved.

The district court relied on three recent Supreme Court opinions, ...