United States v. Hutchinson, 73-1159

• Citation: 488 F.2d 484
• Decision Date: 05 December 1973
• Docket Number: 73-1179.,No. 73-1159,73-1159
• Parties: UNITED STATES of America, Appellee, v. Susanne M. HUTCHINSON, Appellant. UNITED STATES of America, Appellee, v. Gordon ENNIS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

488 F.2d 484 (1973)

UNITED STATES of America, Appellee, v. Susanne M. HUTCHINSON, Appellant.

UNITED STATES of America, Appellee, v. Gordon ENNIS, Appellant.

Nos. 73-1159, 73-1179.

United States Court of Appeals, Eighth Circuit.

Submitted September 12, 1973.

Decided December 5, 1973.

Rehearing and Rehearing Denied January 10, 1974.

COPYRIGHT MATERIAL OMITTED

Jan Stuurmans, Minneapolis, Minn., for appellant Hutchinson.

Alan K. Schwartz, Los Angeles, Cal., for appellant Ennis.

Earl Gray, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 10, 1974.

WEBSTER, Circuit Judge.

In a joint trial in the United States District Court for the District of Minnesota, a jury found Susanne Hutchinson and Gordon Ennis guilty of certain narcotics offenses specified below. We affirm their convictions. Because they were not charged in identical counts and present independent assignments of error, their appeals — though consolidated — are considered separately.

I

Defendant, Susanne Hutchinson, was charged, jointly with her husband, Thomas Hutchinson, with knowingly and intentionally possessing, with the intent to distribute, approximately 11 ounces of cocaine in violation of 21 U.S.C. § 841(a)(1) and with conspiring to violate that statute.¹ Defendant's husband pleaded guilty to the possession charge and to three charges of distributing and dispensing cocaine, and the conspiracy charge against him was thereafter dismissed. Prior to trial, a motion to suppress evidence seized in a search of the Hutchinson residence² conducted on April 7, 1972, was denied by the District Judge, Honorable Earl R. Larson. Upon trial to a jury Susanne Hutchinson was found guilty of possession, as charged, but was acquitted of the conspiracy count.

In this appeal she contends (A) that federal narcotics agents, in violation of her Fourth Amendment rights and of 18 U.S.C. § 3109 searched her residence and seized certain items later used as evidence at her trial; and (B) that the jury's verdict was not supported by the evidence. We affirm her conviction for the reasons discussed below:

A. The Search and Seizure

Susanne Hutchinson raises in her appeal the question whether a government agent working in an undercover capacity is required to announce his identity and purpose under 18 U.S.C. § 3109³ and under the Fourth Amendment when he is invited into a home for the purpose of purchasing illegal narcotics.

The record in this case reveals that Special Agent James D. McDowell, working in an undercover capacity for the Bureau of Narcotics and Dangerous Drugs, arranged with Thomas Hutchinson to purchase one-half pound of cocaine. He had previously negotiated several narcotics transactions with Hutchinson in the presence of his wife, Susanne. This transaction was to be completed on April 7, 1972 at the Hutchinson home. On that date, Agent McDowell obtained a search warrant for the Hutchinson residence and then went to that address to execute the warrant. The residence had both an outer screen door and an inner door. McDowell knocked on the screen door. Thomas Hutchinson opened the inner door and invited McDowell, still in his undercover disguise, inside. McDowell opened the screen door and entered. After being shown what he believed to be cocaine, McDowell excused himself to go to his car for money. He deliberately left the inner door partially open, but the outer screen door closed behind him as he left. McDowell opened the trunk of his car (the signal to the other officers waiting nearby to aid in the execution of the warrant) and picked up the brief case containing the warrant. Accompanied by the other officers, McDowell returned to the residence, opened the screen door and walked in through the inner door which was still partially ajar. He did not knock, identify himself or the officers, or state their purpose before entering. Packages containing varying quantities of cocaine⁴ were seized as was other incriminating evidence, including a copy of a letter from Thomas Hutchinson to Gordon Ennis containing a request for four ounces of cocaine. We are asked to determine whether the trial court erred in admitting evidence seized under such circumstances.

Appellant Hutchinson contends that because Agent McDowell was in the process of executing a warrant, § 3109 was applicable. Primary reliance is placed on Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968) and Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), which together held that § 3109 requires an express prior announcement of authority and purpose even though the door through which the officers enter is unlocked or partially ajar. In reply, the government argues the broad proposition that any home loses all its constitutional protection and statutory protection conferred by § 3109 once it becomes the site of illegal transactions. While we reject that rule so broadly stated, it is well recognized that "a government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant." Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966).⁵ Thus, the controlling fact here is not that on other occasions the Hutchinson residence had been used as a site for illegal transactions, but rather that on the particular day of April 7, Agent McDowell had been invited into the Hutchinson residence for the purpose of purchasing cocaine. McDowell entered the home with the consent of all there present. That consent did not automatically terminate when he left briefly to get his brief case from his car. His return was expected by all present, and nothing occurred from which a withdrawal of the original consent may be implied. Once that consent is placed in its proper perspective, it becomes clear that § 3109 is simply not applicable here.

Nor does the contention that McDowell gained entry by ruse compel a different conclusion. As the First Circuit has recently stated when dealing with a factually similar situation:

The defendants do not allege, nor could they, that Agent Ross\'s presence suddenly became unlawful or that their privacy suddenly was invaded solely because his role changed from undercover agent to arresting officer. To so hold, as was stated in Lewis v. United States, . . . 385 U.S. at 210, 87 S.Ct. at 427, . . . would `come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se.\' The lawful presence of a government agent precludes any argument that later entries violate the privacy of occupants. Since privacy is what § 3109 seeks to protect, the prior lawful entry and continued presence of Agent Ross vitiates any impropriety of subsequent entries. United States v. Bradley, 455 F.2d 1181, 1186 (1st Cir. 1972), aff\'d on other grounds, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973).

While in United States v. Bradley one government agent remained in the dwelling during the entire time period in question, we find nothing in that case contrary to our holding that McDowell's momentary absence from the Hutchinson residence did not abrogate the lawful character of his original entry. See United States v. Ryles, 451 F.2d 190 (3d Cir. 1971), cert. denied, 406 U.S. 926, 92 S.Ct. 1796, 32 L.Ed.2d 127 (1972). In Bradley the court expressly did not reach the "ruse" defense. 455 F.2d at 1186. As in Bradley, we need not here decide the implications of an entry by ruse, on which other circuits have reached varying conclusions,⁶ because the original entry of Agent McDowell was lawful and no independent deception was practiced in reentering after his brief absence. "Privacy is what § 3109 seeks to protect"⁷ and under these facts the Hutchinsons' privacy was not offended by the absence of § 3109 formalities.⁸

B. Sufficiency of the Evidence

Appellant contends that the facts established at her trial do not constitute evidence sufficient to sustain her conviction for the offense of knowingly and intentionally possessing, with the intent to distribute, approximately 11 ounces of cocaine in violation of 21 U.S. C. § 841(a). We disagree. A violation of that statute requires both possession of the contraband and the intent to distribute it. Possession may be actual or constructive, and either sole or joint. United States v. Bridges, 419 F.2d 963 (8th Cir. 1969); Bass v. United States, 326 F.2d 884 (8th Cir.), cert. denied, 377 U. S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964); Mack v. United States, 326 F. 2d 481 (8th Cir.), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964); see also United States v. Dugan, 477 F.2d 140 (8th Cir. 1973). It is well settled that knowledge of the presence of the contraband plus control over it is sufficient evidence of possession. Bass v. United States, supra, 326 F.2d at 886.

Appellant occupied the residence with her husband, Thomas Hutchinson. The April 7th search revealed, in addition to the approximately 11 ounces of cocaine being negotiated for sale in appellant's presence by Thomas Hutchinson to Agent McDowell, one baggie of cocaine in a living room desk and six baggies of cocaine in a bedroom dresser shared by appellant and her husband.

"Constructive possession" has been generally defined as knowingly having both the power and intention at a given time to exercise dominion or control over the property. Rodella v. United States, 286 F.2d 306, 311-312 (9th Cir. 1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199 (1961), cited in United States v. Dugan, supra, 477 F.2d at 141.

Control over the apartment or automobile where the narcotic is found is strong evidence of control over the narcotic. It does not have to be exclusive control over the premises if there is other evidence to show control over the drug.

Bass v. United

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