United States v. Mapp

• Citation: 476 F.2d 67
• Decision Date: 28 March 1973
• Docket Number: No. 611,Docket 72-2414.,611
• Parties: UNITED STATES of America, Appellee, v. Edward MAPP, a/k/a Sonny Woods, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

476 F.2d 67 (1973)

UNITED STATES of America, Appellee, v. Edward MAPP, a/k/a Sonny Woods, Defendant-Appellant.

No. 611, Docket 72-2414.

United States Court of Appeals, Second Circuit.

Argued February 28, 1973.

Decided March 28, 1973.

Joel A. Brenner (Diller & Schmukler, New York City), for appellant.

Barbara Ann Rowan, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., Richard J. Davis, Asst. U. S. Atty. for S. D. N. Y., on the brief), for appellee.

Before KAUFMAN, ANDERSON and MANSFIELD, Circuit Judges.

KAUFMAN, Circuit Judge:

We are called upon today to consider certain important questions of Fourth Amendment law.¹ After a trial by jury, Edward Mapp, also known as Sonny Woods, was convicted on three counts of violating federal narcotics laws, 21 U.S. C. §§ 841(a) (1), 841(b) (1)(A) and 846. Count 1 of a five count indictment charged Mapp, Alan Simmons, Linda Walters, Robert Clark and Robert Davis with conspiracy to distribute, and possess with intent to distribute heroin (the "conspiracy" count). Count 2 charged Mapp and Simmons with the sale of 14.82 grams of heroin on May 25, 1972 (the "sale" count). Count 4 charged Mapp, Walters and Clark with possession of approximately two kilograms of heroin on June 21, 1972 (the "possession" count).² Mapp was sentenced to seven years imprisonment, to be followed by three years special parole, on each count, sentences to run concurrently.³

The search and seizure here involved were conducted in the absence of a search warrant. Prior to trial, the district judge held a hearing on the defendants' motions to suppress two kilograms of heroin seized from the defendant Walters's apartment on June 21, by the Joint Task Force agents who made the arrests in this case. The district judge denied the motion to suppress and the evidence was admitted at trial against the defendants, including appellant Mapp. The only issue on this appeal, brought by Mapp alone, is whether the search and seizure here involved was consistent with the Fourth Amendment and, if not, whether Mapp's conviction on all three counts must be reversed. We conclude that the search violated the Fourth Amendment and that the evidence seized during the search should have been suppressed. But, for the reasons discussed below, we reverse only as to the "possession" and "conspiracy" counts and remand for resentencing. Mapp's conviction on the "sale" count is affirmed.

I.

Inasmuch as the sufficiency of the government's proof at trial is not challenged in these proceedings, we need not catalogue all the evidence which may have led the jury to conclude that the appellant was guilty of the crimes charged. It is sufficient to indicate at this stage that a skillful investigation by the New York Joint Task Force, involving intensive surveillance and the use of an undercover agent, disclosed that Edward Mapp was heavily engaged in the sale of narcotics in New York City. The facts, as narrated by Patrolman John Crowe of the Task Force at the suppression hearing, follow.

On May 17, 1972, Detective Octavio Pons, a New York City Police Officer acting as an undercover agent for the New York Joint Task Force, purchased heroin from Alan Simmons. Late in the evening, on May 24, Pons and Simmons met again, and drove to Sterling's Den Lounge, a bar in the Bronx. Unaware that he and Pons were being observed by Patrolman Crowe, Simmons entered the bar and emerged shortly thereafter with the appellant, Edward Mapp. After a few moments, Mapp instructed Pons to follow him. Mapp drove his own vehicle to the vicinity of 1925 Monterrey Avenue, arriving there, followed by Pons and Simmons, at approximately 12:15 A.M. on the morning of May 25. Simmons asked Pons for $1300, which Pons handed to him. Simmons counted the money and gave it to Mapp, who then entered the apartment building at 1925 Monterrey Avenue. Simmons then told Pons that Mapp had "taught him everything he knew about the narcotics business" and that Mapp was Simmons's "connection." Approximately fifteen minutes later, Mapp emerged from the building, walked to Pons's car, threw two envelopes into Simmons's lap, and departed. Simmons gave Pons one of the envelopes, which Pons and Patrolman Crowe field-tested later in the day. The officers' test indicated that the envelope contained heroin, an evaluation subsequently confirmed by laboratory analysis.

Surveillance was continued on Mapp by Task Force agents on at least eight occasions between May 25 and June 21. Although the investigation revealed that Mapp did not live at the Monterrey Avenue address,⁴ he was frequently observed entering the building between the hours of 9:30 P.M. and 1:30 A.M., often after making a tour of neighborhood bars in the Bronx where he had met with Simmons. Generally, Mapp arrived at 1925 Monterrey Avenue alone, and emerged between five and fifteen minutes later. On at least one occasion, however, Mapp was accompanied by an unidentified man; both entered the apartment building and remained there for a brief period of time. The unidentified individual exited first, "returned to his auto, . . . sat down behind the driver's wheel . . . bent forward and then . . . sat back straight and drove off," conduct which could be construed to indicate that the unidentified male may have placed something under his seat.

Shortly after midnight on the morning of June 21, 1972, appellant left a bar in the Bronx and drove to 1925 Monterrey Avenue. Mapp, who was carrying a brown paper bag, approximately the size of a shopping bag, was followed into the building by Investigator John Herritage. He saw Mapp greet Mrs. Linda Walters in the hallway of the building and accompany her to the doorway of apartment 1-F. Mapp then asked her, "Where's the gangster," and she replied, "He'll be here shortly." Mapp and Mrs. Walters entered apartment 1-F and locked the door from the inside. Investigator Herritage relayed this information to Crowe, who was in the street at the time conducting surveillance. Approximately ten minutes later, at 1:10 A.M., Mapp emerged from the building, empty-handed. He entered his automobile, and drove one block, when he was stopped by Task Force agents and arrested.

At approximately 2:00 A.M., Crowe, Herritage, agents of the Bureau of Narcotics and Dangerous Drugs and uniformed New York City policemen, six in all, entered 1925 Monterrey Avenue and knocked on the door of apartment 1-F. From the rear of the apartment a male voice inquired who was at the door and one of the patrolmen shouted that it was the police. The peephole was opened from inside and then closed. The officers heard "rapid footsteps to the rear of the apartment and then sounds of several footsteps from the rear of the apartment." After waiting for one or two minutes the officers broke down the door. Robert Clark, who was standing near the doorway, was immediately arrested. Crowe, with his gun drawn, entered the bedroom, observed Linda Walters in her nightclothes, and said, "You are under arrest and we want the package that Sonny⁵ brought in earlier." Mrs. Walters pointed to a bedroom closet. A subsequent search of the closet revealed a brown paper bag containing two kilograms of heroin.

II.

Mapp does not question the validity of his arrest on June 21, nor of the admission against him of the heroin sold and delivered by him to Detective Pons on May 25. His argument, rather, is leveled against the search of Linda Walters's apartment on June 21 and the admission at trial of evidence seized, as he urges, in violation of the Fourth Amendment. He contends also that the two kilograms of heroin taken from Mrs. Walters's apartment and admitted for purposes of the "possession" and "conspiracy" counts, had a "spill-over" effect on the "sale" count.⁶ Mapp argues, therefore, that if the evidence was inadmissible on the "possession" and "conspiracy" counts, his conviction on all three counts should be reversed.

Concisely stated the appellant's position is that the Task Force agents did not have probable cause to arrest the occupants of apartment 1-F; that even if there was probable cause to arrest, the agents were required to secure a warrant before effecting a nighttime arrest in a dwelling; that even if the warrantless entry was otherwise legal, it became unlawful as a result of the failure of the officers to announce both their identity and purpose prior to entry; and, finally, that even if the initial entry and arrest were valid, the subsequent search was unlawful because conducted without a search warrant. We shall consider these arguments in order, after a preliminary inquiry into the problem of standing.

A. Standing

The government did not challenge Mapp's standing to raise the Fourth Amendment issue at the suppression hearing, nor did it do so in its brief on appeal. Indeed, at oral argument, when the issue was first raised by the Court, the government conceded that under traditional principles of standing Mapp properly had asserted the Fourth Amendment claim. Nevertheless, we believe a brief comment on this rather complex question is appropriate at this time and may be of some aid to district judges.

The Assistant United States Attorney frankly acknowledged that Mapp was the target of the search in this case. There is language in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L. Ed.2d 697 (1960) which at least suggests that the "target" of a search is a "person aggrieved," Rule 41(e), F.R.Cr. P.,⁷ and therefore has standing to challenge the constitutionality of that search. In Jones, Justice Frankfurter, writing for the Court, said:

In order to qualify as a "person aggrieved by unlawful search and seizure" one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.

362 U.S. at 261, 80 S.Ct. at 731 (emphasis supplied). The...