Kwong How v. United States, 7327.

• Decision Date: 31 May 1934
• Docket Number: No. 7327.,7327.
• Citation: 71 F.2d 71
• Parties: KWONG HOW v. UNITED STATES. LOO CHOO v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

71 F.2d 71 (1934)

KWONG HOW v. UNITED STATES.

LOO CHOO v. SAME.

No. 7327.

Circuit Court of Appeals, Ninth Circuit.

May 31, 1934.

Allan A. Bynon and Chas. W. Erskine, both of Portland, Or., for appellants.

Carl C. Donaugh, U. S. Atty., and Edwin D. Hicks and Mason Dillard, Asst. U. S. Attys., all of Portland, Or., for the United States.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

GARRECHT, Circuit Judge.

The appellants, Kwong How and Loo Choo were, on the 5th day of June, 1933, separately indicted for violation of the Harrison Anti-Narcotic Act, § 9 (26 USCA § 705), and the Jones-Miller Act, § 1 (21 USCA § 174). By stipulation of counsel the two cases were tried at the same time and before the same jury. Appellant Kwong How was indicted on five counts, and was found guilty only as to count 3, which charged that the defendant did unlawfully receive and conceal and did assist in receiving and concealing narcotic drugs, illegally imported into the United States, etc. Appellant Loo Choo was indicted and convicted upon three counts of an indictment, which, in addition to containing a count which was the same as that upon which the appellant Kwong How was convicted, also charged the defendant in two other counts with having sold, dealt in, distributed, and purchased said narcotic drugs, the same having been unlawfully brought into the United States, without having been registered or having the required tax paid thereon. From the judgment of the District Court sentencing the two appellants to four years imprisonment, they have appealed to this court, it having been further agreed and stipulated between the respective attorneys that the appeal of the two cases should be consolidated.

The only question involved in this appeal is whether or not the arrest and search of appellants, and the seizure of certain merchandise and equipment and narcotic drugs from their persons at the time of their arrest was valid, it being the contention of appellants that the said arrest, search, and seizure, which was made without a warrant or legal process, was a violation of their constitutional rights as guaranteed by the Fourth Amendment to the Constitution of the United States. The determination of this issue will dispose of the question as to whether or not the trial court was in error in refusing to grant appellants' motion to suppress the evidence thus obtained, and likewise the objection made to the admission of said testimony and the sufficiency of all the evidence to justify submission of the case to the jury.

Owing to the difficulty in laying down any satisfactory general rule with regard to search and seizure and arrest without a warrant, and since the determination of each case largely depends upon the particular evidence and circumstances, we will state the facts somewhat at length and which, from the record, appear essentially as follows:

The arrests and searches and seizures complained of were made at 10 o'clock at night on the 10th day of May, 1933, in a building designated as 246 Oak street in Portland, Or. There are two separate buildings involved in this case. One is a building on Second street, and is known by its entrance number as 87½ Second street. This building lies in about the middle of the block on Second street between Oak and Stark streets. The other building, a Chinese dwelling house, in which these two appellants were arrested, is known as 246 Oak street, and is situated in the middle of the block on Oak street, between Second and Third streets. 246 Oak street abuts the rear of 87½ Second street at right angles, though there are other buildings occupying the corner of this street intersection within the angle formed by 87½ Second street and 246 Oak street. There is no alley or passageway between the two buildings we are concerned with in this case, and no rear exits to the building known as 87½ Second street, save the one described in the testimony of the government agent as being a secret passageway.

The premises known as 87½ Second street had been under the observation of federal narcotic agents for approximately five months. The agents had made numerous purchases of narcotics from different Chinese at that address, the last purchase having been made as recently as 4 o'clock p. m. on the day of the arrest here in question.

Five federal narcotic agents met at about 10 o'clock p. m. on the night of May 10, 1933, for the purpose of making a concerted drive or raid on the premises known as 87½ Second street, believing, by reason of the fact that they had repeatedly caused narcotics to be purchased from those premises, that the crime charged was therein being committed at that time. These officers were of the opinion at that time that there existed a secret rear exit from the mezzanine floor of 87½ Second street through and into the second story of 246 Oak street. To prevent and guard against any attempt at escape by means of such a passageway, it was agreed that Officer Morris, who was familiar with the Oak street premises and who had been inside thereof on several occasions, should go there and stand guard while the other four officers conducted the search of 87½ Second street. This house (246 Oak street) is described as being somewhat in the nature of an apartment house, it being a two-story structure, the first floor of which was occupied by one family of Chinese, while the upper floor was occupied by several Chinese people, not members of the same family.

Officer Morris testified that he gained admission to the premises in question by ringing the front doorbell; that a Chinaman answered the bell, and he stated to the Chinaman that he would like to go inside, and that this Chinaman willingly admitted him.

The officer testified that after entering the premises he proceeded along a hallway and ascended a flight of stairs leading to the second floor, and that he stationed himself on a landing or hallway at the head of these stairs in front of what he knew to be a secret door or panel, and through which the appellants emerged. This panel door he described as being constructed out of the same kind of material as the walls and ceiling; as being matched with and painted the same as the walls and ceiling; and, commenting upon its disguised and camouflaged appearance, he concluded by saying that "You would have to know where the door was in order to find it."

At the time of the arrest the defendants were emerging from a small room having only one other door leading to a larger room, both of which were within the premises known as 246 Oak street, the larger room leading directly into the rear of 87½ Second street. This last-mentioned passageway from the larger room in 246 Oak street into the rear of 87½ Second street was through a wall constructed in like manner to the one previously described and presented a very similar appearance. The arrangement clearly was one of a secret exit.

The officer testified that after having waited a few minutes in the hallway or landing previously referred to, this panel door opened and the appellant Kwong How stepped into this hallway, Loo Choo following closely behind him, and that both of them appeared at the time to be in flight. At the same time, and before placing the appellants under arrest, the officer stated that he observed that Kwong How was carrying a satchel or handbag in one hand; that the same was hanging open and in the bottom thereof he could see several small packages, which outwardly had all the appearance of being bindles of narcotics. In the other hand Kwong How carried a small sack which closed at one end with a string and which appeared to contain opium pipes, and protruding from which the officer saw the end of what appeared to be an opium pipe. At about the same time the officer observed the other appellant, Loo Choo, a couple of steps behind Kwong How. He (Loo Choo) was carrying a pail in which were lamps or globes expressly designed and used for cooking opium, and which the arresting officer immediately recognized as opium lamps.

The record discloses that there was no light burning in the hallway where the arrests were made; that the only illumination was an eight or ten-watt lamp within the small room out of which the appellants emerged; and that prior to the opening of the door of said room leading to the hallway, Officer Morris was in darkness. The appellants contend that under these circumstances there was not sufficient light to permit the officer to have observed that which he testified he saw in appellants' possession prior to making the arrest. When the appellants opened the said panel door, a shaft or beam of light would be emitted from the small room into the hallway, and as they emerged it would naturally light their path. While this court is of the opinion that under these conditions there was ample light to enable the arresting officer to observe what the appellants had in their possession, it will suffice to say that the question raised is one which goes only to the weight of the officer's testimony, and that being a matter entirely within the province of the jury to determine, it is not the business or duty of this court to again decide the matter on appeal.

After placing both appellants under arrest, the officer immediately proceeded to search them and found that both of them had narcotics on their person; that the satchel referred to was laden with narcotics of different varieties, and also the sack, when opened, revealed the presence of opium pipes, as theretofore suspected. Appellant Loo Choo admitted ownership of the smoking apparatus and equipment, as well as the satchel and the narcotics therein contained, which was being carried by appellant Kwong How.

The appellant Loo Choo stated that the rooms herein described were his residence, but other evidence makes this statement doubtful. The uncontradicted testimony of the federal agent who made the arrests described these rooms as being unoccupied as living...