Catalanotte v. United States

• Decision Date: 01 December 1953
• Docket Number: No. 11780.,11780.
• Citation: 208 F.2d 264
• Parties: CATALANOTTE v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

208 F.2d 264 (1953)

CATALANOTTE v. UNITED STATES.

No. 11780.

United States Court of Appeals, Sixth Circuit.

December 1, 1953.

COPYRIGHT MATERIAL OMITTED

Louis M. Hopping, Detroit, Mich. (Robert D. McCear, Fitzgerald, Walker, Conley & Hopping, Detroit, Mich., on the brief), for appellant.

Vincent Fordell, Asst. U. S. Atty., Detroit, Mich. (Fred W. Kaess, U. S. Atty., Detroit, Mich., on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

On a wintry night in late February of 1952, about half an hour after midnight, a group of eleven officers, comprised of city policemen and federal narcotic agents, came to defendant's dwelling house in Detroit, Michigan. Four of the group surrounded the sides and rear of the house and two remained on the street in front. Five of the officers — all armed — walked up on the front porch, and one of them rang the doorbell and knocked on the door. The wife of appellant did not open the door at once, but looked through the door glass. One of the police officers then flashed his light on his badge so that she could see it. She was told that the officers wanted to see her husband; and, after three or four minutes, she opened the door and the five officers entered the house. Appellant had been in bed on the second floor. His wife and paralyzed daughter had just turned off the television and were preparing to go to bed.

Appellant came downstairs and was told by one of the officers that they wanted to talk to him concerning Sam Caruso's Packard car which was standing in front of appellant's home; and that they wanted to discuss with him the possession of his own car — an Oldsmobile — by Sam Caruso. They further informed him that Caruso and numerous others had been arrested in connection with narcotics.

Appellant inquired whether any narcotics had been seized at the time of the arrest of Caruso, and whether his Oldsmobile had been used to transport the drugs. The arrest of Caruso and others had actually been made some five hours before, pursuant to indictments returned by the grand jury serving in the United States District Court for the Eastern District of Michigan.

Appellant was asked whether he had narcotics in his home. He denied that he had. The officers demanded that he give them the keys to Caruso's Packard car. Whereupon, he went into the dining room. He was followed by a detective and, as he reached into the pocket of his coat, the officer held his hand. The policeman asserted that he feared appellant would reach for a pistol. No keys were found in the coat. Appellant then directed his wife to go upstairs and get the keys. He descended into the basement with the officers following him.

Upon reaching the basement, he sat down and his wife came downstairs with the automobile keys. One of the officers suggested that the appellant needed his slippers, because he was then in his bare feet. The wife again went upstairs and, when she returned, her husband told her that there was nothing to be excited about, that the officers were not going to find anything. On the way down to the basement, appellant had said: "The house is yours. You won't find any narcotics here." The officers acted upon this statement as a consent by appellant that his home be searched, although appellant denied that what he had said constituted such invitation, or consent.

The other six officers, who had been waiting outside the house, were called in and, for about an hour, a minute search from basement to attic was conducted. The officers had procured and were possessed of no search warrant or lawful writ, state or federal, to search or seize either the appellant or his residence, or any of his effects.

One of the officers found in the kitchenette a cardboard box containing a scale. On this scale, small particles of a white powder were found. The scale was taken down into the basement and two more federal officers, summoned by radiophone, arrived with an ultra-violetray lamp especially designed to aid in searches. If the white powder on the scale should show fluorescence, the presence of quinine sulphate (principal adulterant for heroin) would be indicated. One of the officers thought that a fleck of white powder on the scale tasted like quinine, or heroin.

Appellant was arrested and taken to the police station. The scale was carried away to headquarters and subsequent analysis resulted in a report by official chemists that there were traces of heroin on the scale. The scale was not produced at the trial.

Appellant was indicted on two counts: one charging the purchase on February 22, 1952, of one-tenth of a grain of heroin in violation of section 2553(a), Title 26, U.S.C.A., the other charging unlawful possession of the same and of the same quantity of heroin in violation of section 174, Title 21, U.S.C.A. Seasonably, before the trial, appellant filed a motion to suppress the evidence, supported by his own affidavit and that of his wife. After hearing testimony and argument on the motion, the district court denied it. The case came on for trial; and the defendant was found guilty and sentenced on both counts of the indictment.

Numerous assignments of error have been made, briefed and argued by appellant; but we are concerned with only one obvious error which requires reversal of the judgment below. In our opinion, the trial judge should have granted the motion to suppress the evidence. It seems clear that the state and federal officers violated the Fourth Amendment to the Constitution of the United States in searching unreasonably and without warrant the house of appellant, and in seizing the physical evidence without which he could not have been convicted.

The Fourth Amendment provides: "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."

As declared by the Supreme Court in Grau v. United States, 287 U.S. 124, 128, 53 S.Ct. 38, 40, 77 L.Ed. 212, the guaranties of the Fourth Amendment are to be liberally construed "to prevent impairment of the protection extended." See also Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374; Gouled v. United States, 255 U.S. 298, 304, 41 S.Ct. 261, 65 L.Ed. 647; Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746. In the Gouled case, supra, 255 U. S. at page 304, 41 S.Ct. at page 263, 65 L.Ed. 647, the Supreme Court said: "It has been repeatedly decided that these amendments the Fourth and the Fifth should receive a liberal construction, so as to prevent stealthy encroachment upon or `gradual depreciation' of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous, executive officers."

In Bushouse v. United States, 6 Cir., 67 F.2d 843, 844, this court condemned a general exploratory search of premises by officers, even...