Edelin v. United States

• Decision Date: 20 March 1967
• Docket Number: No. 4077.,4077.
• Citation: 227 A.2d 395
• Parties: Robert M. EDELIN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

227 A.2d 395

Robert M. EDELIN, Appellant, v. UNITED STATES, Appellee.

No. 4077.

District of Columbia Court of Appeals.

Argued December 19, 1966.

Decided March 20, 1967.

John D. Hawke, Jr., Washington, D. C., for appellant.

Edward T. Miller, Asst. U. S. Atty., with whom David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

MYERS, Associate Judge:

In October 1964 appellant was arrested for false pretenses. A search warrant was issued commanding police officers to search appellant's room and to seize a check writing machine and an undetermined number of blank checks. During the search the officers located nothing described in the warrant but did find, when an officer lifted a pillow from appellant's bed, recognizable narcotics paraphernalia — a hypodermic needle and syringe, a bent spoon, usable as a narcotics "cooker," and tissue paper, all wrapped in a stocking. These were seized and later placed under chemical analysis, which revealed microscopic traces of heroin. A new information was then filed against appellant charging unlawful possession of heroin in violation of D.C. Code § 33-402 (a) (1961). After trial by the court without a jury, appellant was found guilty. His motions to dismiss, to suppress the evidence seized and for judgment of acquittal were all denied. This appeal ensued.

I

Appellant first contends that the narcotics paraphernalia and the testimony relating to heroin traces should have been suppressed as the fruits of an illegal seizure. He does not question the validity of the warrant or the search thereunder, but rather the validity of the seizure of narcotics paraphernalia under a warrant which described only a check writing machine and a number of checks.

The Fourth Amendment provides that warrants must describe in some particularity "the place to be searched, and the persons or things to be seized." It has long been held that there are exceptions which allow the lawful seizure of articles not described in the warrant. The Supreme Court has considered as exceptions objects

"including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime." Harris v. United States, 331 U. S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399 (1947). See also Johnson v. United States, 110 U.S.App.D.C. 351, 293 F.2d 539 (1961), cert. denied, 375 U.S. 888, 84 S.Ct. 167, 11 L.Ed.2d 118 (1963); Palmer v. United States, 92 U.S.App. D.C. 103, 203 F.2d 66 (1953); Hunt v. United States, D.C.Mun.App., 171 A.2d 515 (1961).

Narcotics paraphernalia is not the fruit of a crime, a weapon, or property the mere possession of which constitutes a crime. It is, however, the means and instrumentality by which narcotics may be illegally used. While the articles seized from appellant's room might not compel such a finding if found singly or separately, when hidden together as an apparent user's "kit," the paraphernalia is clearly the means by which a crime may be committed.¹ It is immaterial that the search warrant did not pertain to a crime related to the articles seized. It is sufficient if the articles seized are instrumentalities of crime. We find, therefore, that the paraphernalia was validly seized and appellant's motion to suppress properly denied.

II

Appellant's second allegation of error is that the stipulated testimony of the Government chemist that microscopic chemical analysis of the paraphernalia disclosed "traces" of heroin was insufficient to show illegal possession of a narcotic drug under § 33-402 (a). He reasons that the evil sought to be controlled by the statute is the use of narcotic drugs or their sale or transfer for ultimate use. In controlling the eventual harm, the proscription of possession has been called "the penalized state of preparation." Hall, General Principles of Criminal Law 584-85 (2d ed. 1960). Where the amount of narcotics possessed is an amount which can be used as a narcotic, the probability of use is very high and the protection of society demands that the possession be proscribed. Appellant argues, however, that where the amount is microscopic or infinitesimal and in fact unusable as a narcotic, the possibility of unlawful sale or use does not exist, and that proscription of possession under these circumstances is inconsistent with the rationale of the statutory scheme of narcotics control. Appellant contends that the statute should be interpreted as requiring proof of possession of at least a usuable quantity of narcotics.

This particular question has not been presented to or passed upon by any appellate court in the District of Columbia.² However, at least four other jurisdictions have reached the precise issue now before us. The first holding on the issue appears to be Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122 (1956), where chemical analysis of a piece of wet cotton found in a bottle cap indicated a trace of heroin. The court found this an insufficient quantity to authorize conviction. A year later the Greer decision was reaffirmed in Pelham v. State, 164 Tex.Cr.App. 226, 298 S.W.2d 171 (1957), where, in reversing a conviction for illegal possession of marijuana, the court concluded

"that the reasonable construction and interpretation to be applied here is that the legislature intended that to constitute the unlawful act of possessing marijuana there must be possessed an amount sufficient to be applied to the use commonly made thereof." 298 S.W.2d at 173. See also Gonzalez v. State, 169 Tex.Cr. 48, 331 S.W.2d 327 (1960).

After much litigation on the point, California has combined the issue of quantity with the issue of knowledgeable possession, stating that "the possession of a minute crystalline residue of narcotic useless for either sale or...