Polk v. United States
| Citation | 291 F.2d 230 |
| Decision Date | 23 May 1961 |
| Docket Number | No. 17017.,17017. |
| Parties | Jewel POLK, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Clark A. Barrett, San Francisco, Cal., for appellant.
Laurence E. Dayton, U. S. Atty., John Kaplan and Charles W. Getchell, Jr., Asst. U. S. Attys., San Francisco, Cal., for appellee.
Before HAMLEY, MERRILL and KOELSCH, Circuit Judges.
Jewel Polk was indicted on a single count charging him with the unlawful concealment of heroin in violation of 21 U.S.C.A. § 174, and following a trial to the court was found guilty and sentenced to fifteen years' imprisonment. This is an appeal from that judgment.
The evidence showed that on the evening of June 3, 1960, officers of the San Francisco Police Department delivered $180 in marked bills to an informer with instructions to make a purchase of narcotics. He gave the money to one Stanciell who went to the residence of appellant, a known trafficker of narcotics. Twenty minutes later Stanciell left appellant's home and proceeded directly to the place where he and the informer had arranged to meet. As police officers approached, Stanciell placed something in his mouth and swallowed it. He was searched but found to possess neither narcotics nor any of the money and he refused to divulge any information. Thereupon, four police inspectors accompanied by a federal narcotics agent went to appellant's residence. This was a two-story building divided into two flats, each having a separate entrance. Appellant inhabited the upper flat while another family occupied the remaining level below.
On arrival, Martin, one of the inspectors, tapped on the glass front door which had a partially drawn shade and shouted When no one answered Martin directed his flashlight under the shade, and observed a man standing at the top of the inside stairs. Martin then shone his light on his badge and called out that he was a policeman and wanted to talk, but instead of coming to the door the man withdrew into the interior of the flat, whereupon Martin called to another officer and the federal narcotics agent to "cover the back."
The route to the rear of the premises lay to the side of the house and along a narrow alleyway or corridor between appellant's building and the house next door. At the end of this corridor was a solid door set into a wall that connects the two houses. Beyond the door was a passageway walled on either side and covered by an overhanging portion of the building in which appellant lived. The end of the passageway opened into the back yard of the premises from which stairs led up to appellant's back door.
The two officers hastened to the back of appellant's premises and upon arriving there proceeded to climb the back stairs. As they did so one of them observed a person, later revealed to be the appellant, standing on the roof over the passageway and in the act of throwing a package onto the roof of the adjoining house. The officers then forced open the rear door of the appellant's flat, went to the window from which appellant had reached the roof, commanded him to return to the house, and placed him under arrest. Afterward the officers recovered the package and in doing so discovered the marked money lying on the roof where the appellant had been standing. The package contained a quantity of heroin and $1,400.
The appellant urges the following as error on appeal:
(1) the trial court's finding of guilt on insufficient evidence;
(2) the admission of the physical evidence which was seized and the testimony as to what was observed in the course of an alleged illegal search and seizure;
(3) the admission of a quantity of narcotics differing in the amount stated in the indictment, and supposedly lacking a complete connection between the seizing officers and the examining chemist; and
(4) the admission of the $180 over the objection that it was immaterial to the charge of the indictment.1
We find the foregoing evidence sufficient to sustain the finding of guilt. However, since the officers had neither a search warrant nor a warrant for appellant's arrest, the admissibility of the evidence obtained after the officers' entry into the back yard is the important issue that faces us. The remaining specifications of error have been thoroughly considered and found to be without merit.
It is true, as the appellee urges, that a search may be made when it is incident to a lawful arrest. United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; and a legal arrest for a violation of the narcotics laws may be made despite the absence of a warrant "where the violation is committed in the presence of the person making the arrest or where such...
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People v. Willard
...would not be determinative without further facts tending to show the degree of privacy appellee enjoyed in that place. Polk v. United States, 291 F.2d 230 (9th Cir. 1961). But there was a further trespass when officer Hanks reached underneath the house itself in order to remove the package.......
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