Davis v. United States

Citation327 F.2d 301
Decision Date17 January 1964
Docket NumberNo. 18690.,18690.
PartiesAlbert Douglas DAVIS, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Harvey E. Byron and Sanford A. Warner, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, and Myron Roschko, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and DUNIWAY, Circuit Judges and PENCE, District Judge.

PENCE, District Judge.

This is another case in which this court is called upon to determine whether or not Government officers, in their efforts aimed at suppression of crime, and the trial court, weighing the evidence before it in the light of the latest opinions of our Supreme Court, have safely crossed the quagmire1 of "searches and seizures." We are again faced with the determination of whether or not in the trial (and subsequent conviction) of the defendant for receiving and concealing marihuana, the trial court was correct in denying defendant's motion to suppress, as evidence, marihuana seized by United States Customs agents at defendant's home.

In this case, about July 18, 1962, United States Customs Agents Eatmon and Greppin obtained information that a marihuana arrestee had secured his marihuana from a big marihuana dealer in the Central and Adams area of Los Angeles by the name of A. D. Davis. The officers checked criminal records of the Los Angeles Police Department and found that Albert Douglas Davis had been convicted of narcotics violations in 1954 and 1956 and had been arrested for a narcotics violation on June 30, 1962. The records disclosed that also in the month of July 1962, another arrestee had been picked up in an automobile registered to Davis. On August 25, 1962, the agents were informed by another marihuana arrestee that he had obtained the marihuana from Davis. About that time, they were also advised by a Los Angeles police officer that a reliable informant had told him Davis was to receive a large quantity of narcotics from Mexico on the following weekend, which would be the weekend of September 1 and September 2, 1962.

On September 2, 1962, the two United States Customs agents, together with Sgts. Michaelson and Beckman of the Los Angeles Police Department, all dressed in plain clothes, went to Davis' home at 636 East Adams Boulevard in Los Angeles, California, and at about 12:30 P.M. — noon time — Sgt. Beckman knocked on the door. A girl, eight year old Pamela Beal Davis, answered the door. Sgt. Beckman said, "I would like to talk to Albert Davis", and the girl said, "Come in." Beckman, together with Agents Greppin and Eatmon, and with Sgt. Michaelson coming after, went in. Just as Eatmon stepped through the door, he observed a wastebasket in plain view about five feet from the door containing (likewise in plain view) a green leafy substance which he recognized as marihuana and which he pointed out to Sgt. Beckman. Eatmon then asked the girl if he could use the restroom; she pointed to the bathroom. While he was using the restroom he observed therein another trash container in plain view and saw a green leafy substance, marihuana, inside it.

Customs Agent Eatmon had been with the United States Bureau of Customs for three years, had participated in many marihuana investigations and was well qualified in recognizing the marihuana plant. Agent Greppin and Sgt. Michaelson also observed the "green leafy substance" in the wastebasket near the doorway, and Eatmon called Beckman's attention to the contents of the wastebasket in the bathroom. Sgt. Michaelson, together with Greppin, then went upstairs and arrested Davis (who was in bed). They then made a complete search of the bedroom and therein found marihauana in another wastebasket.

None of the officers had a warrant for the arrest of Davis or a search of the premises.

Defendant's house was of two stories. When the officers knocked on the door, defendant was in bed on the second floor, and in the downstairs portion of the house were a 17 year old brother-in-law and four or five children ranging from Pamela, age 8, down to one 6-8 months old. The mother of these children was Mary Ross, and from what was said at the time of argument before this court, apparently the defendant was their father. Mary Ross was in bed with the defendant at the time the officers went upstairs and both he and she were arrested, but the charges against her subsequently were dropped.

After the arrest, Agent Greppin and Sgt. Beckman took Davis to the Los Angeles Police Building where he told them he had purchased approximately 10 kilos of marihuana about two weeks before and the marihuana the officers had found was all that was left of it. He also admitted the marihuana in his home belonged solely to him.

Before trial, the defendant made a proper motion to suppress evidence and for return of the seized property. The hearing on the motion to suppress evidence was held on January 7, 1963, some four months after the arrest of the defendant. The defendant and his daughter Pamela took the stand in support of the motion. Agents Eatmon and Greppin, and Sgt. Michaelson also testified.

The testimony of the eight year old Pamela was somewhat incoherent and not too illuminating, but she did testify that when she heard the knock at the front door she opened the door and saw three men there. She knew that they had talked to her but did not remember what they had said, and she knew that they looked in the wastebasket. She did not recognize any of the above officers when asked to identify them in court.

The uncontradicted evidence of the officers was that at the time they went to defendant's residence, it was not their intention to arrest the defendant nor to search the premises. They went there for the purpose of talking to Davis, whom none of them, apparently, had ever met before. The words addressed to Pamela when the door was opened were: "I would like to talk to Albert Davis."

Eatmon testified that he had suggested to the other officers before they arrived at the house that they stop at a service station, so apparently the trial court believed that Eatmon's trip to the bathroom was necessary and not a subterfuge for conducting a quiet search of that room.

Defense has urged two grounds for reversal, both based upon the premise that the actions of the officers constituted a violation of the Fourth Amendment, and the seizure of the marihuana downstairs, as well as the arrest of Davis, and subsequent search and seizure of more marihuana in Davis' bedroom, were all unlawful:

(1) there was no probable cause for the officers to enter the premises; and (2) the officers did not have a valid consent which would authorize their entering the premises.

During argument, before this court, counsel for the defendant conceded that on the information available at the time the officers set out for the defendant's house on September 2, 1962, they did not have sufficient probable cause to secure the issuance of a warrant either for arrest of the defendant or the search of his home.

Nevertheless, the officers certainly had an abundance of information from police files, arrestees and "an informer whom the Los Angeles police had found reliable", that the defendant was trafficking in marihuana, particularly on the very weekend in question. It was not therefore, unreasonable for the officers to attempt to peaceably question the defendant about his activities in connection with marihuana — perhaps with the hope that the questioning might be as productive as it was in Tatum, Jr. v. United States, 321 F.2d 219 (9 Cir. 1963).

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's "castle" with the honest intent of asking questions of the occupant thereof — whether the questioner be a pollster, a salesman, or an officer of the law.

The time of day, coupled with the openness of the officers' approach to defendant's doorway, rules out the possible dangers to their persons which might have resulted from a similar unannounced call in the dead of night. Cf., Miller v. United States, 357 U.S. 301, 311, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). See Mr. Justice Jackson's concurring opinion in McDonald v. United States, 335 U. S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). Nor do we have here the "peeping Tom" type of entry upon the premises and invasion of privacy condemned in Brock v. United States, 223 F.2d 681 (5 Cir. 1959), and by this court in California v. Hurst, 9 Cir., 325 F.2d 891 (1963).

The cases relied on by the defendant (McKnight v. United States, 87 U.S.App. D.C. 151, 183 F.2d 977 (1950); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Lee v. United States, 98 U.S. App.D.C. 97, 232 F.2d 354 (1956)) are all cases wherein the intent of the several officers at the time of their entry on to the premises without possessing a legal warrant for search or arrest, was actually either to arrest without warrant or search without warrant, and in each case (except Rabinowitz) their "forceable" entry was made (i. e., either by physical force or by compulsion of authority) without a legal warrant for search or arrest.

The basis of appellant's contention that the officers did not have a valid...

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