Ingram v. United States, 9399.

• Citation: 113 F.2d 966
• Decision Date: 14 August 1940
• Docket Number: No. 9399.,9399.
• Parties: INGRAM v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

113 F.2d 966 (1940)

INGRAM v. UNITED STATES.

No. 9399.

Circuit Court of Appeals, Ninth Circuit.

August 14, 1940.

Sol A. Abrams and Charles E. Gould, both of San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty. and S. P. Murman, Asst. U. S. Atty., both of San Francisco, Cal. for appellee.

Before GARRECHT, DENMAN, and MATHEWS, Circuit Judges.

GARRECHT, Circuit Judge.

Appellant was convicted upon an indictment in two counts, charging him and one Joseph A. Woods, with violating (first count) the Jones-Miller Act, 42 Stat. 596, 21 U.S.C. § 174, 21 U.S.C.A. § 174, in unlawfully concealing narcotics and (second count) for conspiracy, in unlawfully conspiring to conceal narcotics. 18 U.S.C. § 88, 18 U.S.C.A. § 88.

The only question involved in this appeal is one of search and seizure. All assigned errors relied upon by appellant relate to this subject matter.

Appellant contends that the entry into, search for and seizure of narcotics and personal effects in apartment 302 at 2715 Cabrillo Street in San Francisco, were all in violation of appellant's rights under the Fourth and Fifth Amendments to the Constitution of the United States and that, therefore, appellant's petition to suppress and exclude evidence secured by reason of such search and seizure and his objections to said articles being received in evidence, his motions to strike this evidence, his motions for a directed verdict and in arrest of judgment were each erroneously overruled and denied.

This is the second appeal in this case. The first judgment of conviction was reversed because of improper cross-examination. A petition to suppress this evidence had been heard and denied before the first trial.

Prior to the second trial, appellant, by verified petition, renewed his application to suppress and exclude the evidence in question. This petition alleged that appellant was a lawful occupant and one of the lessees of and jointly entitled to use and possession of the above described apartment and that Federal Narcotic Agents, without his consent and without a search warrant and in violation of his constitutional rights, had entered said premises and seized certain articles therein and were intending to introduce them in evidence against him. A hearing was held on this petition; appellant relying on his verified petition, the government in opposition thereto relied on certain testimony given at a prior hearing by one of the narcotic agents and upon certain evidence given by Ann Ingram, the wife of appellant, as a witness in his behalf at the first trial.

The testimony of the agent was to the effect that the officers, at the time of the search and seizure, entered the premises upon the invitation of the manager who had previously rented the apartment to a tenant who paid the rent and took a receipt in the name of G. R. Flynn. This man was afterwards indicted jointly with appellant under the name of Joseph A. Woods and pleaded guilty. At the time Woods rented the premises it was specifically understood that the manager would have access to the apartment at any time. After the discovery of the narcotics, one or more of the inspectors remained on guard at the apartment to await developments. On the evening of the second day appellant came to the place and was arrested. At the time he asserted that he had entered the apartment by mistake, that the apartment was not his, and he disclaimed ownership of anything in connection with the apartment.

Upon the first trial:

"Appellant's defense was that the apartment was leased by Woods and his visit there at the time of his arrest was to obtain his clothes which had been deposited there; that the morphine and other articles were not his and none had been placed by him in his suitcase.

"To sustain her husband's defense, Mrs. Ingram testified that she had known appellant's co-defendant Woods since February, 1938, when appellant and herself moved to South San Francisco Auto Court, where they lived in a trailer until April 1, 1938, at which time they moved into an apartment house adjacent to that in which Woods lived. There they stayed until the end of July, 1938. Woods visited them both at the trailer and at the apartment. According to the witness, when appellant and...