Jeffers v. United States, 10499.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation187 F.2d 498,88 US App. DC 58
Docket NumberNo. 10499.,10499.
Decision Date07 December 1950

T. Emmett McKenzie, Washington, D. C., with whom James K. Hughes, Washington, D. C., was on the brief, for appellant.

Joseph F. Goetten, Asst. U. S. Atty., with whom George Morris Fay, U. S. Atty., Arthur J. McLaughlin and Joseph M. Howard, Assts. to U. S. Atty., were on the brief, for appellee.

Before STEPHENS, Chief Judge, and PRETTYMAN and FAHY, Circuit Judges.

Writ of Certiorari Granted March 26, 1951. See 71 S.Ct. 570.

FAHY, Circuit Judge.

The appellant was convicted in the District Court of having purchased, sold, dispensed and distributed cocaine and codeine sulphate not in and not from the original stamped package, 26 U.S.C.A. § 2553(a), and of having facilitated the concealment and sale of said narcotics after they had, with his knowledge, been imported into the United States contrary to law, 21 U.S.C.A. § 174. Several bottles of cocaine attributed to his possession and which carried no Government stamps were admitted in evidence over appellant's objection. Previous to trial he had moved to suppress this evidence. In this motion he claimed ownership of the bottles and asserted they had been unlawfully seized.

The evidence was obtained as follows: A reputed dealer in narcotics approached the house detective of a Washington hotel and offered him $500 to be let into a room in the hotel. He said that Jeffers, the appellant, had "stached" narcotics there. The detective told him to come back later. He then called a member of the Narcotics Squad of the Metropolitan Police to come to the hotel for some information. Upon his arrival the detective told him what had occurred. The two went to the assistant manager of the hotel, secured a key to the room, or apartment as it is sometimes called, and entered it without a warrant of any kind. There they found in a box in the closet 19 bottles of cocaine without the requisite Federal stamps. It was the apartment of two aunts of Jeffers, one of whom testified. She said that appellant did not occupy the room but did occupy another room in the hotel and had a key to their apartment with permission to use it whenever he saw fit. They paid for the care of his child at another place and he often came into the apartment when they were not there to leave money for the care of the child. She further testified the appellant had no permission to store narcotics in the apartment and she did not know that he had done so. It was stipulated that if called the other aunt would have testified to the same effect.

The search and seizure were unlawful. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

When an officer without a warrant of any kind and without permission unlocks the door of another's apartment, enters, searches it and seizes effects found in the course of such search, he violates the Fourth Amendment unless the circumstances bring the conduct within some exception obviating the necessity for a warrant. Such an exception is when the search and seizure are incident to a valid arrest, United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430; Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, or are justified by an emergency, Johnson v. United States, 1948, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436. There was no arrest to which the search and seizure in this case were incident, nor was there any emergency. As to the latter there was no evidence that the property was likely to be removed before a search warrant could be obtained. There is no indication that measures could not easily have been taken to prevent its removal or to arrest anyone attempting it. See Taylor v. United States, 1932, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Johnson v. United States, supra, and McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153.

The Government, assuming arguen-do the illegality of the search, disputes the standing of the accused to object to the evidence obtained. It is said no right of privacy of appellant protected by the Fourth Amendment was violated since the apartment searched was not his. But the property seized was his. And not only was the search unlawful; so also was the seizure. There was no warrant for either, and neither was under circumstances making it reasonable without a warrant There was no emergency and no arrest.

An accused does not have standing to prevent the admission of evidence obtained by an unlawful search and seizure which did not infringe his own personal rights protected by the Amendment. The constitutional provision against unreasonable searches and seizures does not in terms bar the admission of evidence obtained by its violation. The exclusionary rule as applied in the federal courts was formulated by the judiciary in aid of the effectiveness of the Amendment, Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; see Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; but is available only to the victim of the unconstitutional conduct. "* * * the federal courts in numerous cases, and with unanimity, have denied standing to one not the victim of an unconstitutional search and seizure to object to the introduction in evidence of that which was seized. * *" Goldstein v. United States, 1942, 316 U.S. 114, 121, 62 S.Ct. 1000, 1004, 86 L.Ed. 1312; see, also, Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 149 F.2d 381, certiorari denied sub nom O'Kelley v. United States, 1945, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429. Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., now states that it is the "person aggrieved" by an unlawful search and seizure who may move to suppress evidence so obtained. We assume the Rule does not enlarge the previously established limits of the class who may object. Lagow v. United States, 2 Cir., 1946, 159 F.2d 245. See, also, United States v. Janitz, 3 Cir., 1947, 161 F.2d 19, 21. Clearly, however, it does not contract those limits.

Where the premises are those of the accused he has the requisite standing. Harris v. United States, supra; McDonald v. United States, supra; Johnson v. United States, supra.1 Here, however, the premises were not appellant's. While he had certain rights therein we believe the question of his standing to object to the evidence turns upon his claim of ownership of the evidence seized rather than upon an interest in the premises searched.

In most of the decided cases objection to the seized evidence has rested upon an interest in the premises unlawfully searched. Yet the rule has been stated often in terms which authorize the objection to be made as well upon the basis of ownership in the property unlawfully seized "* * * the settled doctrine is that objection to evidence obtained in violation of the prohibitions of that Fourth Amendment may be raised only by one who claims ownership in or right to possession of the premises searched or the property seized, * * *" citing cases, including Shore v. United States, 60 App.D.C. 137, 49 F.2d 519. Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 85, 149 F.2d 381, 384.

"* * * This court is committed to the doctrine that only the owner or possessor of property is aggrieved by the illegal search and seizure of it. Connolly v. Medalie, 2 Cir., 58 F.2d 629. * * *" United States v. Stappenback, 2 Cir., 1932, 61 F.2d 955, 957.

In Shore v. United States, supra, objection of the defendants was overruled, in the court's language, "* * * for the simple reason that, since they do not claim property in the liquor or the trunks, no constitutional rights of theirs were invaded. The guaranties of the Fourth and Fifth Amendments, as we have seen, were intended for the benefit of the person whose rights have been transgressed, but this right is personal, and may not be availed of to protect one who claims no ownership in or right of possession of the goods seized, * * *" 60 App.D.C. at page 140, 49 F. 2d at page 522.

See, also, to similar effect, Shields v. United States, 1928, 58 App.D.C. 215, 26 F.2d 993; Nunes v. United States, 1 Cir., 1928, 23 F.2d 905; Klein v. United States, 1 Cir., 1926, 14 F.2d 35; Matthews v. Correa, 2 Cir., 1943, 135 F.2d 534, 537; Chepo v. United States, 3 Cir., 1930, 46 F.2d 70; Kitt v. United States, 4 Cir., 1942, 132 F.2d 920; Grainger v. United States, 4 Cir., 1946, 158 F.2d 236; Goldberg v. United States, 5 Cir., 1924, 297 F. 98; Remus v. United States, 6 Cir., 1923, 291 F. 501, 511; McMillan v. United States, 8 Cir., 1928, 26 F.2d 58; Armstrong v. United States, 9 Cir., 1926, 16 F.2d 62, 65; Lewis v. United States, 9 Cir., 1925, 6 F.2d 222.

In Pielow v. United States, 9 Cir., 1925, 8 F.2d 492, 493, the premises invaded were not those of the person to whom the seized papers and books belonged and who was on trial. They had been entrusted, for convenience in posting them, to the one from whose possession they were taken. In sustaining the objection to their admission, the court said, "* * * The Constitution protects against unreasonable search and seizure, not only their `persons' and `houses,' but the people's `papers and effects.' * * *"

See, also, United States v. De Bousi, D.C. D.Mass., 1929, 32 F.2d 902, where the court said: "* * * I do not find in any of the cases where the evidence obtained upon wrongful search and seizure has been admitted that the defendant had or asserted any rights in the premises searched or in the property seized. * * *" 32 F.2d at page 903.

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