Pong Ying v. United States, 5041.
| Decision Date | 26 May 1933 |
| Docket Number | No. 5041.,5041. |
| Citation | 66 F.2d 67 |
| Parties | PONG YING v. UNITED STATES. |
| Court | U.S. Court of Appeals — Third Circuit |
Hervey S. Moore, of Trenton, N. J., for appellant.
Harlan Besson, U. S. Atty., of Hoboken, N. J., and John W. Griggs, Asst. U. S. Atty., of Trenton, N. J., for the United States.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
In the court below Pong Ying was found guilty on an indictment charging him with receiving 240 grains of smoking opium fraudulently imported into the United States. The evidence clearly sustained this charge and warranted the verdict of guilty rendered and the sentence imposed. At the trial defendant's counsel moved to suppress the evidence on the ground that the testifying narcotic agents had violated his constitutional rights by forcing an entrance into his apartment and there discovering the contraband opium. On the refusal of the court to suppress the evidence this appeal was taken and the sole question involved is whether the search of the defendant's apartment without a warrant was a reasonable one within the meaning of the Fourth Amendment to the Constitution. After a study of the testimony and due consideration had, we are of opinion it was. Our reasons therefor we now state.
On March 22, 1932, the searching narcotic officers were informed by information received from the office of the Narcotic Squad in New York that opium was being smoked at the premises in question. The agents had known from investigation that the defendant and his father had conducted an opium den, and that after the arrest and conviction of the father, the son, the present defendant, continued such business. We pause at this point to say that, if the narcotic agents had gone before a commissioner, and if the above were the only facts they had to secure the issuance of a warrant, a commissioner would hardly have issued one. The information they had was solely hearsay. Instead of pursuing this vain course, the narcotic agents at once went to the premises in question, No. 204 Mulberry street, in the city of Newark. That number is a public apartment building and on the second floor is a chop suey restaurant. Apartment No. 5 in question was fixed up for opium smoking purposes "and it had a door on there that is not ordinarily an apartment house door unless it is for a purpose other than legitimate." The agents went to such room and there detected the fumes of opium coming from that apartment. In addition to such fumes they heard people running within the room. Knocking at the door and receiving no response, they forced it open and found the contraband articles in question. Were they justified in so doing?
The situation of the agents facing this door with the narcotic fumes coming from the room was similar to that in Brock v. U. S. (C. C. A.) 12 F.(2d) 370, 373, where the court said: "That to justify such a search or seizure without a warrant by such an officer in a store, dwelling or other such structure, he must have direct personal knowledge through one or more of his five senses of sight, hearing, smell, taste or touch that the persons suspected whose premises are to be searched or whose property is to be seized are committing the suspected misdemeanor in his presence."
Now here we have not a mere suspicion that a violation of law had been committed or was likely to be committed, but one of the then actual commission of an unlawful act. There was some one within the room. Unburning opium in a room would, of course, cause no fumes, but burning opium would. So the fact of escaping opium fumes was evidence to the officers that opium was being used and burned in that apartment. Moreover opium stands in a lawbreaking class of its own. The case with which it can be transported, concealed, and distributed, and the horrible effects incident to its use, have moved Congress to require the possessor of such opium to prove its lawful importation. See section 174, 21 USCA, providing: "Whenever on trial for a violation of this section the defendant is shown to have or to have had possession...
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