Rent v. United States

• Citation: 209 F.2d 893
• Decision Date: 12 February 1954
• Docket Number: No. 14531.,14531.
• Parties: RENT et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

209 F.2d 893 (1954)

RENT et al. v. UNITED STATES.

No. 14531.

United States Court of Appeals, Fifth Circuit.

January 6, 1954.

Rehearing Denied February 12, 1954.

M. Gabriel Nahas, Jr., James Royall, Houston, Tex., for appellants.

Brian S. Odem, U. S. Atty., William R. Eckhardt, Asst. U. S. Atty., Houston, Tex., for appellee.

Before HOLMES, RUSSELL and RIVES, Circuit Judges.

RIVES, Circuit Judge.

Appellants Rent and Curry, along with one Dragotta not tried, were indicted for violations of the narcotics laws, Section 2557(b) (1) and Section 2593(a), Title 26 United States Code.¹ The first count charges that all three defendants "did unlawfully, knowingly and feloniously combine, conspire, confederate and agree together and one with the other and with other persons * * * to acquire, obtain and receive marihuana without having paid the transfer tax imposed by Section 2590, Title 26, United States Code." The overt acts charged are: one, that the defendants proceeded to the Tandem Lounge in Houston, Texas; two, that the defendant Rent had seven ounces of marihuana in his possession; three, that the defendant Curry had one marihuana cigarette in his possession; and four, that the defendant Dragotta had 119 grains of marihuana in his possession.

Rent is charged by the second count with being a transferee required to pay the transfer tax imposed by Section 2590, and that he unlawfully, knowingly and feloniously obtained and received seven ounces of bulk marihuana without having paid said tax and without a written order issued for that purpose by the Secretary of the Treasury. Curry is similarly charged in the third count with the unlawful possession of one marihuana cigarette containing three grains more or less. The fourth count charges Dragotta, who was not tried, with the possession of 119 grains of marihuana.

The questions to be decided on this appeal relate to the sufficiency of the evidence and especially to the validity of the search by which the seven ounces of marihuana were discovered. A decision of those questions requires a detailed consideration of the evidence.

On the night of August 6, 1952, Mr. Griffin, an officer of the Federal Bureau of Narcotics, received a telephone call from a man who resided in the vicinity of West Saulnier and Taft Streets in Houston, Texas, to the effect that he had seen somebody place a "stash" by the side of a warehouse on the south side of Saulnier. In response Officer Griffin, together with Houston's City Police Detective Brannon, went to the address from which the information had come and did find a marihuana cigarette somewhere near the warehouse. That cigarette was not shown to be further connected with the offenses here involved.

Griffin and Brannon then sat in their car and further observed the vicinity. At about 9:30 p. m. the defendants Rent and Curry, along with Dragotta, walked to the corner of Saulnier and Taft Streets. Curry and Dragotta waited on the corner and Rent went to the right side of an automobile parked directly across the street from the car in which the officers were waiting. The officers testified that a street light on the corner furnished sufficient light for them to observe the occurrences. Rent opened the right hand door of the automobile, bent over inside, and then straightened up and lit a cigarette, sitting on the edge of the automobile seat with the right front door open while he smoked the cigarette. Griffin testified that, from his experience as a narcotics agent, he knew that there was a distinctive way in which marihuana cigarettes are ordinarily smoked, "it burns with such combustibility that you have to take real long draws, and it doesn't take any time at all to burn down a marihuana cigarette when it is smoked." Griffin was of the opinion from the manner in which Rent smoked this cigarette that it was a marihuana cigarette, "from the way the cigarette was coaling up, the draft of his breath and all, it was long draws taken on the cigarette." He then observed "the arc of the flame dropped by the side of the car." Rent then got out of the automobile, rejoined Curry and Dragotta, and they walked south on Taft Street.

Officers Griffin and Brannon then took position in the doorway of an apartment at 302 West Saulnier Street which was about twenty feet from the automobile in the door of which Rent had smoked the cigarette. Nothing further happened for about an hour and a half. Officer Brannon testified that he had information that someone had placed an object in the grass by the side of this automobile, and about 11 p. m. he walked out to the automobile and searched the grass strip between the sidewalk and the curb along side of it and found a large hand rolled unsmoked marihuana cigarette. He brought that cigarette to Officer Griffin, who wrote his name, the date and the time on it, and Brannon then replaced the cigarette where it had been found near the right front door of the automobile.

At about 11:50 p. m. the defendants Rent and Curry, along with Dragotta and a fourth man, Miller, came up to the automobile. Rent opened the door on the driver's side and got in, the other three stood beside the side of the automobile. "Curry looked around over his shoulder, and reached down and picked up this cigarette." The officers then came out of the doorway, shouting "Don't move." Curry was observed to "make a throwing motion over the top of the car with his right hand." Officer Brannon testified that he saw something leave Curry's hand and go into the street. The officers told Rent not to start the car.

Brannon made a brief search in the street and discovered the marihuana cigarette, which had been marked by Griffin, a short distance from the car toward the center of the street. Griffin made a further search and shortly ahead of the right front wheel of the automobile he found a marihuana cigarette butt. This was approximately in the vicinity where Rent earlier had been seen to throw the lighted cigarette, though neither of the officers undertook to say or to express an opinion that the marihuana cigarette butt was the same as the lighted cigarette thrown by Rent The defendants were then placed under arrest and were taken to jail by Officer Brannon and by another narcotic officer, Engleking.

Officer Griffin did not then "seize" the automobile for transporting contraband, 49 U.S.C.A. §§ 781, 782, 787(d), but he did take the car into custody with the intention of searching it. He parked it across the street from the nearby Tandem Lounge where it remained under his observation until about 1 a. m. During this time the officers continued their investigation of narcotics violations in this area and arrested three other persons not here involved. The automobile was then driven to the Houston Police Department parking lot and locked. The routine processing of the seven defendants arrested that night was not concluded until about 4 a. m. The officers then went home "to get some sleep." An actual search of the car was not made until about 10:30 the next morning. At that time, Officer Griffin found a package containing bulk marihuana concealed above the glove compartment of the car and a few minutes later Officer Engleking found a second package of marihuana above the glove compartment near where the first package had been found.

When Rent and Curry were arrested, Officer Griffin took a large piece of white paper and their "pockets were turned out and massaged until all extraneous matter was on this paper." The dustings from the pockets of Rent and Curry were kept separate and were analyzed by the Government chemist, as were the contents of the cigarette, the cigarette butt, and the two packages containing bulk marihuana. All were found to contain marihuana. The chemist testified as to the dustings from Rent's pockets, "there were a few particles of marihuana in this material." As to the dustings from Curry's pockets, he testified, "I found just one small piece of marihuana in that package."

Prior to the trial, Rent filed a motion to suppress the evidence relating to the seven ounces of bulk marihuana found upon the search of his automobile. The District Court heard evidence in connection with this motion in advance of the trial and overruled the motion. In passing upon the validity of the search, we have considered both the evidence upon that motion and the evidence on the trial, as seems to be required by the decision in Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543.

The evidence under count one of the indictment, in which the defendants were jointly charged with conspiracy to unlawfully obtain and otherwise receive marihuana, was clearly insufficient. There was no testimony that the defendants actually entered the Tandem Lounge, one of the overt acts charged in the indictment, though the relation of that act to the possession of marihuana was never made to appear from the evidence. The only evidence going to prove conspiracy was the evidence tending to show Rent's possession of the seven ounces of marihuana and Curry's possession of the one marihuana cigarette, and the fact that they were walking in the company of each other. None of the officers had known either Rent or Curry previously, and there was no testimony tending to show that either of them was a dealer in marihuana or had any previous connection with marihuana, except the evidence of the chemist as to the minute particles found in the dustings from their pockets.

While the conspiracy here charged is that denounced by 26 U.S.C. § 2557(b) (1) and the conspiracy considered in the cases presently to be cited was that defined in the general criminal conspiracy act, 18 U.S.C. § 371, we see no reason for any difference in the applicable rules. The gist of the offense of conspiracy "is agreement among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy." United States v....