Gibson v. United States

• Decision Date: 16 April 1945
• Docket Number: 8833.,No. 8832,8832
• Citation: 149 F.2d 381,80 US App. DC 81
• Parties: GIBSON v. UNITED STATES. O'KELLEY v. SAME.
• Court: U.S. Court of Appeals — District of Columbia Circuit

80 US App. DC 81, 149 F.2d 381 (1945)

GIBSON v. UNITED STATES. O'KELLEY v. SAME.

Nos. 8832, 8833.

United States Court of Appeals District of Columbia.

Argued February 13, 1945.

Decided April 16, 1945.

Mr. Henry Lincoln Johnson, Jr., of Washington, D. C., for appellants.

Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and Ray L. Jenkins, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, C. J., and EDGERTON and ARNOLD, JJ.

GRONER, C. J.

These are appeals from judgments of conviction for violation of the marihuana tax law. Marihuana is defined by the Texas Court of Criminal Appeals as a volatile drug, most often taken in the form of a smoke, and when so taken induces a high exhilaration, often motivating brutal criminality.¹ In a Utah case it is said to have been introduced into this country from Mexico,² but it is now known to flourish as a weed in most of the Southern and Southwestern parts of the United States. Among certain classes of drug addicts its use has largely supplanted cocain, which under present conditions is more difficult to obtain. In 1937 Congress passed a comprehensive act,³ intended to prevent its acquisition except under special conditions provided in the act, which include the use of certain official blank forms and the payment of a large tax. Proof that any person has in his possession any marihuana, without having and producing the order form required by the act to be retained by him, is presumptive evidence of an unlawful transfer in violation of the act.⁴

Appellant O'Kelley was indicted in two counts, the first, for having unlawfully acquired in the District of Columbia a quantity of marihuana (viz.: 50 marihuana cigarettes), without having paid the tax; the second, for having unlawfully acquired 387 marihuana cigarettes, 7 ounces and 24 grains of marihuana seeds, and 354 grains of marihuana, without having paid the tax.

Appellant Gibson was separately indicted in a single count, charged with having unlawfully acquired in the District of Columbia 36 marihuana cigarettes without having paid the tax.

The indictments were consolidated for trial. Within a reasonable time after the finding of the indictments appellants moved in the District Court to suppress the evidence of possession, on the ground that such evidence was obtained as a result of unreasonable search and seizure. The trial judge overruled the motion and appellants were thereafter convicted on all counts and sentenced.

A short statement of the evidence follows: Narcotic Agents, having reason to believe that a person named Burch Williams was unlawfully dealing in marihuana, sent an "informer" to a house they believed to be occupied by Williams on New Jersey Avenue. They watched and saw a man they believed to be Williams come to the front door and observed "something" pass between him and the informer. A short time later the informer turned over to them two bundles of marihuana cigarettes, which they believed he had not had before he saw Williams. A week or so thereafter they secured a warrant of arrest for Williams and at 2 o'clock in the morning of March 26, 1944, went to the New Jersey Avenue house, seven strong, knocked on the door, and when it was opened by appellant Gibson, the leader of the raiders told Gibson he was an officer, exhibited his badge and said they had a "warrant." Gibson stood aside and they entered the ground floor apartment of the house. In the living room they found a number of people — men and women — eating and playing cards. They did not find Williams, nor did they enquire about him, but instead asked Gibson, whom they had never seen before, to show his draft card, whereupon Gibson pulled a handkerchief from his pocket, from which something dropped, which they recognized as a marihuana cigarette. They picked it up and later, upon examination by the chemist, it was found to contain marihuana. They then asked whose apartment they were in, and were told that it belonged to the other appellant, Roy O'Kelley, who was then asleep in an adjoining bedroom. The officers told O'Kelley's wife to notify him to come out, and when he did and had stated that the apartment was his, they asked him if there was any marihuana in the house, and when he replied "no," they asked if he "minded if they looked around to see if there was any," and that O'Kelley told them "to go ahead." They then broke open a record player cabinet and found a paper bag containing 50 marihuana cigarettes and asked O'Kelley if they were his. He replied they were, but that he had them only for his own use. They thereupon arrested O'Kelley and Gibson and took them to the station house.

At this point, enough has been said to show very clearly that the entrance of the officers into the house was illegal. They obtained entrance by showing their badges and stating that they had a warrant — obviously implying a search warrant — which was untrue. What they had was a warrant of arrest for a man who was not in the house and, so far as the record shows, had no connection with the house and no association with it, save that the officers on some previous occasion believed they had seen him at the front door.⁵ And as it turned out, they had entered another person's house, against whom they had no charge or suspicion of any kind, by resort to a subterfuge, and their subsequent search on the theory of consent, which appellant O'Kelley on the hearing on the motion to suppress denied was ever given, can be considered as consent only under compulsion. Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Farris v. United States, 9 Cir., 24 F.2d 639, certiorari denied 277 U.S. 607, 48 S.Ct. 602, 72 L.Ed. 1012; United States v. Slusser, D.C., 270 F. 818. For it abundantly appears that before O'Kelley emerged from his bedroom, in response to the demand of the officers, the latter had picked up from various parts of the room a considerable quantity of marihuana cigarettes. Confronted with this situation and the statement of the officers that they had a warrant, the consent wrung from him was without effect on his constitutional rights, and as Judge St. Sure said in a similar case,⁶ — "There is no doubt but that defendant was influenced by his situation, and, when all the surrounding circumstances are considered in their true relations, not only is the claim that consent was voluntary overthrown, but the impression is irresistibly produced that it must necessarily have been the result of either hope or fear, or both, operating on the mind."

Or, as we said in Nueslein v. D. C., 73 App.D.C. 85, 89, 115 F.2d 690, 694: "Before a court will hold that a defendant has waived his protection under this IVth Amendment, there must be convincing evidence to that effect. * * * That rule should not be narrowed even though an admission or confession is obtained. Officers should not be encouraged to proceed in an irregular manner on the chance that all will end well. In the instant case it is difficult to find the time when it would have been appropriate for the defendant to resist, acquiesce in, or invite the illegal search. He never had a chance to meet the officers at the door. When later the defendant became aware of his uninvited guests * * * it is requiring too much to say, with the wisdom of hind sight, that he should have insisted upon their departure. His rights had been violated before he confronted the officers. He may never have heard of the IVth Amendment. Undoubtedly, he had even less of an idea as to the method that would insure its continuing protection. * * * On this record we cannot say that the defendant waived the infringement of his IVth Amendment rights."

If this were all, the conviction of O'Kelley would have to be reversed under the rule so emphatically laid down by the Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas....