Drayton v. United States

• Decision Date: 05 June 1953
• Docket Number: No. 14110.,14110.
• Citation: 205 F.2d 35
• Parties: DRAYTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

205 F.2d 35 (1953)

DRAYTON v. UNITED STATES.

No. 14110.

United States Court of Appeals Fifth Circuit.

June 5, 1953.

David D. Phillips, Miami, Fla., for appellant.

Fred Botts, Asst. U. S. Atty., Miami, Fla., Herbert S. Phillips, U. S. Atty. for Southern District of Florida, Tampa, Fla., for appellee.

Before BORAH, RUSSELL and STRUM, Circuit Judges.

STRUM, Circuit Judge.

Appellant, defendant below, was convicted of the unlawful acquisition of marihuana without payment of the transfer tax, contrary to 26 U.S.C.A. § 2593(a). On appeal, the determinative questions are the legality of defendant's arrest, and a search of her premises, both without a warrant.

The building in which the defendant was arrested, and the search conducted, is a two-story rooming house, in charge of the defendant Aldonia Drayton, as manager. On the ground floor of the building there are six rooms. One of them is a large room sometimes referred to as the "gambling room." Another is a small bedroom, occupied by the defendant. From the downstairs hallway, stairs ascended to the second floor where there are eleven other bedrooms, one of which was known as No. 5.

Two federal narcotics agents, while concealing their identity as such, made three purchases of marihuana through a bellboy working in a local hotel. Each time, for the purpose of making the purchase, one of the agents drove the bellboy, late at night, to a spot near the rooming house, where the bellboy left the agent's car. On the first two occasions the agents saw the bellboy proceed in the direction of the rooming house, and on the third occasion they saw him enter the rooming house, returning in each instance with a small wooden match box filled with marihuana. On the last occasion, they saw that the bellboy was admitted to the house by the defendant, who also came out on the front porch and looked carefully up and down the street before letting the bellboy out again a few minutes later. Immediately following the third purchase, which was shortly after midnight, the agents arrested the bellboy at the hotel where he worked. The narcotics agents, accompanied by three city police officers, then returned to the rooming house, where they arrested the defendant without a warrant, and searched her downstairs bedroom. They found no marihuana in this room, except some minute particles with which we are not here concerned, as the conviction was not based upon this find.

At the request of the narcotics agents, the defendant delivered to them a group of keys to the various rooms, but none of these keys would unlock room No. 5 upstairs. Whereupon, one of the agents specifically demanded from the defendant the key to No. 5. The defendant then produced a key from a dresser drawer in her downstairs bedroom. One of the federal narcotics agents, accompanied by the city policemen, went upstairs, unlocked room No. 5 with this key, searched the room, and found in a dresser drawer eight small wooden match boxes filled with marijuana, aggregating 440 grains, which was admitted in evidence at the trial, and which is the basis of defendant's conviction. This is the search in question. Defendant's motion to suppress the evidence was denied below.

Not every search, but only unreasonable ones, are proscribed by the Fourth Amendment. And there is no precise formula for the determination of reasonableness. Each case must turn on its own facts and circumstances. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; Parks v. United States, 5 Cir., 76 F.2d 709; Matthews v. Correa, 2 Cir., 135 F.2d 534; Cannon v. United States, 5 Cir., 158 F.2d 952.

Although stricter requirements of reasonableness may apply where a dwelling is being searched, compare Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453; Matthews v. Correa, 2 Cir., 135 F.2d 534, 537, a search incident to a lawful arrest, which is otherwise reasonable, is not automatically rendered invalid by the fact that a dwelling place, as contrasted to business premises, is subjected to search. Harris v. United States, supra. In determining the question of reasonableness here, cases such as Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, and Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407, are inapposite, not only because of the great mobility of automobiles, but primarily because the search approved in those cases was pursuant to legislation consistent with the Fourth Amendment specifically authorizing such a search. See United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210. The same was true in Kelly v. United States, 5 Cir., 197 F.2d 162; and Cannon v. United States, 5 Cir., 158 F.2d 952.

It is unquestionably true, that when a person has been lawfully arrested, either with or without a warrant, the arresting officers may search his person, Weeks v. United States, 232 U.S. 383, text 392, 34 S.Ct. 341, text 344, 58 L.Ed. 652, text 655; Lefkowitz v. United States Attorney, 2 Cir., 52 F.2d 52; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, and contemporaneously with the arrest may search the premises under the immediate control of the person arrested. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231.

In Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, the Supreme Court approved a search, without a warrant, but incidental to a lawful arrest, extending throughout a four-room apartment consisting of a living room, bedroom, bathroom...