Eng Fung Jem v. United States

• Decision Date: 10 August 1960
• Docket Number: No. 16644.,16644.
• Citation: 281 F.2d 803
• Parties: ENG FUNG JEM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

281 F.2d 803 (1960)

ENG FUNG JEM, Appellant, v. UNITED STATES of America, Appellee.

No. 16644.

United States Court of Appeals Ninth Circuit.

August 10, 1960.

Sheela & O'Laughlin, Barton C. Sheela, Jr., San Diego, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Los Angeles, Cal., for appellee.

Before STEPHENS, BARNES and JERTBERG, Circuit Judges.

STEPHENS, Circuit Judge.

Collaborating state and federal law enforcement officers were told by an allegedly reliable but unidentified informer that narcotics could be found in a hotel room which appellant was and had been occupying for several days in El Centro, California. Without a warrant or permission of any kind these officers gained entrance to and searched appellant's room, discovering and seizing some narcotics. Eng was subsequently arrested, tried and convicted for violating 21 U.S. C.A. § 174 (unlawful concealment and reception of narcotics). It is admitted that appellant moved in the trial court to suppress the introduction of the narcotics as evidence. The motion was denied. Appellant has appealed and claims that the ruling constituted reversible error.

The United States defends the lower court's refusal to suppress on the grounds that the officers had probable cause to believe that there were narcotics in appellant's hotel room and that the circumstances of the case entitled them to enter and search the room even though they had neither a warrant nor an intention to arrest appellant. It may be added that the officers knew that appellant was not in the room at the time they entered and searched it. Appellant has claimed ownership of the seized narcotics and his standing to move for suppression is not challenged.

One circumstance which the United States contends justifies the actions of its agents in this case is that the invaded premises consisted of a hotel room rented by appellant as a transient guest. The evidence showed that appellant had occupied the room for but a few days and was planning to leave town soon after the hour when the officers made their entry. The government's argument is that the constitutional inhibitions upon a search without a warrant apply with less stringency to a hotel room transiently occupied than to a residence adopted with some degree of permanence.

Concededly, "probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant." Jones v. United States, 1958, 357 U.S. 493, 497, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514; Agnello v. United States, 1925, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145; Taylor v. United States, 1932, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951. This principle has been applied to searches of a defendant's hotel room, Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; of a hotel room not rented by the defendant but used by him on occasion with the consent of its occupants, United States v. Jeffers, 1951, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59, and of a room in a boarding house, McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. These cases rule the instant case. The transience of appellant's stay in the room searched by the officers does not dilute the force of constitutional protection. The hotel room in question was appellant's dwelling. That he lived there for but several days is of no consequence. Surely the guarantees of...