Cognetta v. United States
| Decision Date | 15 February 1963 |
| Docket Number | No. 18191.,18191. |
| Citation | 313 F.2d 870 |
| Parties | James L. COGNETTA, and Richard L. Booton, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alan S. Maremont, San Francisco, Cal., for appellants.
Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. Chief, Crim. Div., Robert H. Filsinger, Asst. U. S. Atty., for appellee.
Before BARNES, HAMLIN and DUNIWAY, Circuit Judges.
Appellants were convicted of concealing marihuana in violation of the provisions of 21 U.S.C. § 176a. A timely appeal was made to this court. We have jurisdiction under the provisions of 28 U.S.C. § 1291.
The record shows that on December 13, 1960, warrants of arrest were issued on the basis of a Commissioner's complaint charging appellants with a bank robbery alleged to have been committed on July 7, 1960. On the night of December 13, 1960, agents of the Federal Bureau of Investigation approached the residence located at 12655 Martha Street, North Hollywood, California, for the purpose of making the arrests. Agent Alexander and other agents approached the front door of the house. Pursuant to Alexander's orders and according to plan some of the agents went to the side of the house and others approached the rear of the house. Agent Alexander knocked on the front door and rang the doorbell. Almost simultaneously the door was opened from the inside by one Rene Gloor, a guest of the appellants. Immediately behind him was appellant Cognetta. Alexander identified himself, saying, "We are agents of the FBI and we have warrants of arrest for Cognetta and Booton." Alexander and other agents entered the premises, arrested appellants, and during the search of the premises found marihuana and other articles that were subsequently admitted into evidence at the trial.
The sole issue in this case is whether the evidence found as a result of the search of the premises was legally admissible into evidence.1
It is the contention of appellants that just prior to Alexander's entry at the front door another agent entered at the rear door without announcing his authority and purpose, that this entrance was illegal under the provisions of 18 U.S.C. § 3109,2 and that the evidence found thereafter was inadmissible. Although they concede that the entry was proper (and the evidence admissible) if made at the front door first, they contend that the finding of fact of the district court that the entry at the front was first in point of time was erroneous. Therefore, regardless of the manner in which the entry at the rear of the house was made, if the evidence in the record viewed in the light most favorable to the government and the inferences to be drawn therefrom support the district court's finding, the conviction must be affirmed.
Agent Alexander, who was in charge of the arresting party and ordered some of the agents to guard the rear of the house, testified that "The orders were given that I would go to the front door and announce that we were the FBI, that we had the warrants for the arrest, and with that the back door was to be protected as well as each side of the house and when the door flew open, then we went in and almost simultaneously we were going in the front door they did go in the back door." He further testified as follows:
To continue reading
Request your trial
-
United States v. Bradley
...States v. Marson, 408 F.2d 644 (4th Cir. 1968), cert. denied, 393 U.S. 1056, 89 S.Ct. 695, 21 L. Ed.2d 698 (1969); Cognetta v. United States, 313 F.2d 870 (9th Cir. 1963); United States v. Viale, 312 F.2d 595 (2d Cir.), cert. denied, 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 The defendant......
-
Vanella v. United States, 19270.
...be secure in his home has been violated so long as the first or one of the contemporaneous entries was lawful. Cf. Cognetta v. United States, 313 F.2d 870 (9th Cir. 1963); United States v. Viale, 312 F.2d 595 (2d Cir. The district court pointed out that Falbaum entered an open door in hot p......
-
United States v. Fernandez
...by another officer who, upon hearing voices in the room, used a pass key to enter through the rear door. Again, in Cognetta v. United States, 313 F.2d 870 (9th Cir. 1963), the Ninth Circuit held that Section 3109 was not violated where evidence supported the district court's finding that en......
-
United States v. Bustamante-Gamez
...was made at the front door of the house, a second announcement at the garage door was necessary. We disagree. In Cognetta v. United States, 9 Cir., 1963, 313 F.2d 870, we approved an unannounced entry through the rear door of a residence which was made a few seconds after a properly announc......