Giacona v. United States

• Decision Date: 27 October 1958
• Docket Number: No. 16986.,16986.
• Citation: Giacona v. United States, 257 F.2d 450 (5th Cir. 1958)
• Parties: Carlo Kelly GIACONA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

257 F.2d 450 (1958)

Carlo Kelly GIACONA, Appellant, v.UNITED STATES of America, Appellee.

No. 16986.

United States Court of Appeals Fifth Circuit.

June 30, 1958.

Rehearing Denied August 11, 1958.

Certiorari Denied October 27, 1958.

COPYRIGHT MATERIAL OMITTED

William H. Scott, Houston, Tex., for appellant.

Newton B. Schwartz, Asst. U. S. Atty., Malcolm R. Wilkey, William B. Butler U. S. Attys., Houston, Tex., for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

RIVES, Circuit Judge.

Appellant was tried on a six count indictment, three counts of which charged him with acquiring or obtaining various amounts of marihuana without having paid the transfer tax imposed by the Internal Revenue Code,¹ and three companion counts with transporting or concealing, or facilitating the transportation or concealment of, the marihuana, in violation of subdivisions (1) and (2), respectively, of I.R.C.1954,26 U.S.C.A. § 4744.The jury returned a verdict of guilty on the first two counts in each of which the amount involved was 28 ounces of marihuana.A verdict of not guilty was returned on the remaining four counts.

Mr. Finley, an enforcement agent for the Federal Bureau of Narcotics, had received information² that there was marihuana contained in tobacco cans and a sack concealed on the foundation blocks which supported the sills underneath a building in which the defendant operated a business known as Mecca Drive-In Grocery in Houston, Texas.On March 26, 1957 at about 11:45 P.M., Finley and other officers set up a surveillance of said premises from an adjacent property.During the first three hours nothing happened.

At about 2:45 or 3:00 A.M., Officer Finley went on the premises, crawled up to the building, reached underneath it and took from the top of one of the foundation blocks a round paper bag.Finley took the bag back to his fellow officers in waiting, where a sample of its contents was extracted.Each of the officers initialed the bag, after which Finley restored it to the shape in which found and replaced it on the foundation block from which it had been removed.The surveillance continued all through the night without result.About six o'clock on the morning of the 27th, Finley telephoned to Narcotic Agent Fritz J. Engelking.Thereafter, Engelking went before the United States Commissioner and obtained a search warrant for the premises upon his affidavit to the following effect:

(has reason to believe)"That he(is positive) that (on the person of)

(on the premises known as Mecca\'s Drive-In Grocery 5006 Jensen Drive, Houston, Texas, and being a wood frame green in color, with composition roof, one story building, as well as all other buildings on the same lot, bearing the same number under the city numbering system as above in the Sou. District of Texas, there is now being concealed certain property, namely marihuana in violation of Title 26, U.S.C. Section 4744(a) which are being concealed in and under the above described premises

here give alleged grounds for search and seizure

"And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

"Information from a reliable source was received that Marihuana contained in tobacco cans and a sack were concealed under the above described building and inside one of the above described buildings.The marihuana has been located under the building by Narcotic Agent, W. T. Finley.

"1.The Federal Rules of Criminal Procedure provide: `The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time.\' (Rule 41(C)"³

The warrant authorized a search of the premises "at any time in the day or night."Engelking then joined his fellow officers in the surveillance, and they continued patiently but uneventfully watching until about 8 o'clock that night.During the afternoon the appellant was seen on several occasions at the building and in the general area.About 8:00 P. M., they observed appellant drive onto the premises, get out of his automobile, walk to some steps, talk briefly to some woman who opened a door, then go to the point of concealment and reach underneath the house.Engelking then turned on the headlights of his car, which "illuminated the defendant in his maroon shirt, standing with the bag, standing straight and facing me by the headlights."Appellant"stooped down and threw something underneath this building, and then he ran around the corner."The officers closed in and arrested him.

After appellant's arrest, Officer Jones crawled under the building and recovered the brown paper bag at the approximate place where appellant had been seen to throw something.Upon a search of the premises, additional contraband was found underneath the building.The inventory of property accompanying the search warrant describes the following:

"Two cans marihuana weighing about 900 grains in Half & Half tobacco cans.Loose marihuana weighing about 28 ounces contained in two brown paper bags.Glass jar containing marihuana seeds.12 Half & Half and 12 Prince Albert tobacco cans containing tobacco."

As to a statement from appellant, Mr. Finley testified:

"A.I told him that he did not have to make any statement to me, but any statement he did make to me could be held against him.Detective Jones told him the same thing.I told him that under the Fifth Amendment of the Constitution of the United States, he didn\'t have to say anything.He gave me his name, age, address, birth and et cetera.I asked him to tell me the truth with reference to this matter.He said, `I can\'t tell you the truth.I mean, it is not mine, and I won\'t claim it.\'And I told him, `Well, in view of that, well if you are lying about the fact that you are not going to claim it, then, that it is yours, —\' and, well, he said, `I can\'t tell you the truth about that.\'He said, `It is not mine.I am not going to claim it, but I am lying.\'"

The return of the search warrant and affidavit accompanied by the inventory was made on April 3, 1957.The indictment was returned on May 13, 1957.The appellant's counsel filed a motion to quash the indictment on June 4, 1957.The trial took place on October 22 and 23, 1957.No motion for return of property or to suppress evidence was made prior to the trial.

Upon the trial, the defendant objected to Officer Finley's first search or inspection of the premises made before the search warrant issued, and also objected to the sufficiency of the affidavit and search warrant, and moved to quash the search warrant and suppress the evidence.The Government opposed these objections and motions on their merits, and also insisted that they should not be entertained because the defendant had not moved for return of the property and to suppress the evidence before trial, calling attention to the requirements of Rule 41(e),Federal Rules of Criminal Procedure,18 U.S.C.A.Without indicating the ground of its action, the court overruled the objections of the defendant and his motions to quash the search warrant and suppress the evidence.

The appellant specifies and insists upon three alleged errors:

"Specification No. One.

"The Court committed material error in permitting Officers Finley and Jones to testify over Appellant\'s objection as to an exploratory search of Appellant\'s business building and the result of such search, without a search warrant.

"Specification No. Two.

"The Court erred in overruling Appellant\'s Motion to suppress the evidence offered, over Appellant\'s objection, of Officers Finley and Jones, obtained by a search of Appellant\'s curtilage without a search warrant.

"Specification No. Three.

"The Court erred in overruling Appellant\'s Motion to Quash Search Warrant, issued in this case, which search warrant was issued upon information and belief and based upon an exploratory and illegal search made theretofore."

The Government insists that the appellant has no standing to complain of any alleged illegal search because he denied ownership of the marihuana and failed to prove ownership of or interest in the premises searched, citing Scoggins v. United States, 1953, 92 U.S.App.D.C. 29, 202 F.2d 211, andCalhoun v. United States, 5 Cir., 1949, 172 F.2d 457.We do not agree.In the form in which Agent Finley testified to appellant's disclaimer of the marihuana, "I am not going to claim it, but I am lying," the jury could have inferred just the opposite.

Moreover, there was affirmative testimony that appellant operated the business conducted on the premises, which was not denied, and no evidence was offered to the contrary.Possession of the premises searched, without reference to an interest in the property seized, gave the requisite standing to raise the issue as to admissibility of evidence resulting from an alleged illegal search.United States v. Pepe, 2 Cir., 1957, 247 F.2d 838, 841;Work v. United States, 1957, 100 U.S.App.D.C. 237, 243 F.2d 660, 662;United States v. Fowler, D.C. S.D.Cal.1955, 17 F.R.D. 499, 502.Neither of the cases cited by the Government holds to the contrary.

The Government further insists that appellant waived any complaint of illegality of either search by failure, before the trial, to move for a return of the property or to suppress the evidence as required by Rule 41(e),Federal Rules of Criminal Procedure:

"(e)Motion for Return of Property and to Suppress Evidence.A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the

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