Agnello v. United States

Citation51 A. L. R. 409,70 L.Ed. 145,269 U.S. 20,46 S.Ct. 4
Decision Date12 October 1925
Docket NumberNo. 6,6
CourtUnited States Supreme Court

Messrs. Battle, Vandiver, Levy & Van Tine, of New York City (Messrs. George Gordon Battle and Isaac H. Levy, both of New York City, of counsel), for petitioners.

[Argument of Counsel from pages 21-22 intentionally omitted] Messrs. James M. Beck, Sol. Gen., of Washington, D. C., and William J. Donovan, Asst. Atty. Gen., for the United States.

[Argument of Counsel from pages 23-27 intentionally omitted] Mr. Justice BUTLER delivered the opinion of the Court.

Thomas Agnello, Frank Agnello, Stephen Alba, Antonio Centorino, and Thomas Pace were indicted in the District Court, Eastern District of New York, under section 37, Criminal Code, 35 Stat. 1088, 1096, c. 321 (Comp. St. § 1020) for a conspiracy to violate the Harrison Act, 38 Stat. 785, c. 1, as amended by sections 1006, 1007, 1008 of the Revenue Act of 1918, c. 18, 40 Stat. 1057, 1130 (Comp. St. Ann. Supp. 1919, §§ 6287g, 6287l, 6287r). The indictment charges that defendants conspired together to sell cocaine without having registered with the collector of internal Revenue and without having paid the prescribed tax. The overt acts charged are that defendants had cocaine in their possession, solicited the sale of it, met in the home of defendant Alba at 138 Union street, Brooklyn, and made arrangements for the purpose of selling it, brought a large quantity of it to that place, and sold it in violation of the act. The jury found defendants guilty. Each was sentenced to serve two years in the penitentiary and to pay a fine of $5,000. The Circuit Court of Appeals affirmed the judgment. 290 F. 671.

The evidence introduced by the government was sufficient to warrant a finding of the following facts: Paspuale Napolitano and Nunzio Dispenza, employed by government revenue agents for that purpose, went to the home of Alba, Saturday, January 14, 1922, and there offered by buy narcotics from Alba and Centorino. Alba gave them some samples. They arranged to come again on Monday following. They returned at the time agreed. Six revenue agents and a city policeman followed them and remained on watch outside. Alba left the house and returned with Centorino. They did not then produce any drug. After discussion and the refusal of Napolitano and Dispenza to go to Centorino's house to get the drug, Centorino went to fetch it. He was followed by some of the agents. He first went to his own house, 172 Columbia street; thence to 167 Columbia street, one part of which was a grocery store belonging to Pace and Thomas Agnello, and another part of which, connected with the grocery store, was the home of Frank Agnello and Pace. In a short time, Centorino, Pace, and the Agnellos came out of the last-mentioned place, and all went to Alba's house. Looking through the windows, those on watch saw Frank Agnello produce a number of small packages for delivery to Napolitano and saw the letter hand over money to Alba. Upon the apparent consummation of the sale, the agents rushed in and arrested all the defendants. They found some of the packages on the table where the transaction took place and found others in the pockets of Frank Agnello. All contained cocaine. On searching Alba, they found the money given him by Napolitano.

And, as a part of its case in chief, the government offered testimony tending to show that, while some of the revenue agents were taking the defendants to the police station, the others and the city policeman went to the home of Centorino and searched it, but did not find any narcotics; that they then went to 167 Columbia street and searched it, and in Frank Agnello's bedroom found a can of cocaine, which was produced and offered in evidence. The evidence was excluded on the ground that the search and seizure were made without a search warrant. In defense, Centorino and others gave testimony to the effect that the packages of cocaine which were brought to and seized in Alba's house at the time of the arrests had been furnished to Centorino by Dispenza to induce an apparent sale of cocaine to Napolitano; that is, to incite crime or acts having the appearance of crime for the purpose of entrapping and punishing defendants. Centorino testified that, after leaving Napolitano and Dispenza with Alba at the latter's home, he went to his own house and got the packages of cocaine which had been given him by Dispenza, and took them to 167 Columbia street, and there a gave them to Frank Agnello to be taken to Alba's house. Frank Agnello testified on direct examination that he received the packages from Centorino, but that he did not know their contents, and that he would not have carried them, if he had known that they contained cocaine or narcotics. On cross-examination, he said that he had never seen narcotics. Then, notwithstanding objection by defendants, the prosecuting attorney produced the can of cocaine which the government claimed was seized in Agnello's bedroom and asked him whether he had ever seen it. He said he had not, and specifically stated he had never seen it in his house. In rebuttal, over objections of defendants, the government was permitted to put in the evidence of the search and seizure of the can of cocaine in Frank Agnello's room, which theretofore had been offered and excluded.

The case involves the questions whether search of the house of Frank Agnello and seizure of the cocaine there found, without a search warrant, violated the Fourth Amendment, and whether the admission of evidence of such search and seizure violated the Fifth Amendment. The Fourth Amendment is:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The provision of the Fifth Amendment invoked is this:

'No person * * * shall be compelled in any criminal case to be a witness against himself.'

The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted. See Carroll v. United States, 267 U. S. 132, 158, 45 S. Ct. 280, 69 L. Ed. 543, Weeks v. United States, 232 U. S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The legality of the arrests or of the searches and seizures made at the home of Alba is not questioned. Such searches and seizures naturally and usually appertain to and attend such arrests. But the right does not extend to other places. Frank Agnello's house was several blocks distant from Alba's house, where the arrest was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests. See Silverthorne Lumber Co. v. United States, 251 U. S. 385, 391, 40 S. Ct. 182, 64 L. Ed. 319; People v. Conway, 225 Mich. 152, 195 N. W. 679; Gamble v. Keyes, 35 S. D. 645, 650, 153 N. W. 888.

Under the Harrison Act (section 8 (Comp. St. § 6287n), and section 1 as amended by section 1006 (Comp. St. Ann. Supp. 1919, § 6287g)) it is unlawful for any person, who has not registered and paid a special tax, to have cocaine in his possession, and all unstamped packages of such drug found in his possession are subject to forfeiture. We assume, as contended by the government, that defendants obtained from Frank Agnello's house the cocaine that was taken to Alba's house and there seized; that the can of cocaine which later was found in Agnello's house was unlawfully in his control and subject to seizure; and that it was a part of the cocaine which was the subject-matter of the conspiracy.

The government cites Carroll v. United States, supra; but it does not support the search and seizure complained of. That case involved the legality of a search of an automobile and the seizure of intoxicating liquors being transported therein in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138 1/4 et. seq.). The search and seizure were made by prohibition agents without a warrant. After reference to various acts of Congress relating to the seizure of contraband goods, the court said (page 153, 45 S. Ct. 285):

'We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motorboat, wagon, or automobile, for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.'

It was held that:

'The facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched.' Page 162, 45 S. Ct. 288.

And on that ground the court held the search and seizure without warrant justified.

While the question has never been directly decided by this court, it has always been assumed that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein. Boyd v. United States, 116 U. S. 616,...

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