Sykes v. United States

• Decision Date: 17 January 1963
• Docket Number: No. 16997,16971.,16997
• Citation: 312 F.2d 232
• Parties: Fred SYKES, Appellant, v. UNITED STATES of America, Appellee. Thomas RUFFIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

312 F.2d 232 (1963)

Fred SYKES, Appellant, v. UNITED STATES of America, Appellee.

Thomas RUFFIN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 16997, 16971.

United States Court of Appeals Eighth Circuit.

January 17, 1963.

Alphonse J. Lynch, St. Louis, Mo., made argument for the appellant and filed brief.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., made argument for the appellee and D. Jeff Lance, U. S. Atty., was with him on the typewritten brief.

Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.

MATTHES, Circuit Judge.

Count One of an information filed by the United States Attorney for the Eastern District of Missouri charged that on April 26, 1961, Thomas Ruffin did unlawfully carry a quantity of heroin from Chicago, Illinois, to St. Louis, Missouri, in violation of 26 U.S.C. § 4724(b); and Count Two of the information charged that on the same day Ruffin and Fred Sykes unlawfully concealed heroin in violation of 21 U.S.C. § 174. Tried before a jury, they were found guilty as charged. Ruffin was sentenced to imprisonment for a term of ten years on Count One and a term of thirteen years on Count Two, the latter to run consecutively to the sentence on Count One, or a total of twenty-three years. Sykes was sentenced to imprisonment for a term of eight years. These appeals by Sykes and Ruffin present for determination the question whether the evidence was sufficient to make a submissible case on either of the counts.

The heroin was seized by narcotic agents and a police officer while searching the apartment occupied by Sykes. Appellants attack the legality of the search warrant, claiming that it was issued without probable cause, and also contend that the search warrant was illegally executed. Since the sufficiency of the evidence question depends upon whether the court properly admitted the heroin and certain paraphernalia in evidence, we shall first direct our attention to this issue.

For approximately six months prior to April 21, 1961, Luther Williams had been a Government informer and on that day executed an affidavit for a search warrant in which he stated under oath that "he has reason to believe" that "there is now being concealed * * * in Apartment 703 at 2210 Biddle Street, St. Louis, Missouri * * * a quantity of heroin * * * and supplies and apparatus in connection therewith * * *;" that he "has been in the above described apartment on several occasions and seen heroin produced several times" and that "on April 19, 1961 * * * he was present when a quantity of heroin was produced, a portion of it was put in capsule and the remainder returned to a cabinet in this apartment." Based upon the affidavit, the United States Commissioner issued a search warrant on April 21, 1961, authorizing Edward Demorest, a narcotic agent, and any other officers, to search the above designated apartment.

Rule 41(c) of the Fed.R.Crim.P. authorizes a judge or a United States Commissioner to issue a search warrant if he is satisfied that grounds for the application exist or that there is probable cause to believe that they exist. In Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 549, 69 L.Ed. 1032 (1925), the Supreme Court stated:

"In determining what is probable cause, we are not called upon to determine whether the offense charged has in fact been committed. We are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant."

In our view, the instant affidavit was sufficient for the United States Commissioner to determine the existence of probable cause. In summary, the affidavit contained affirmations of fact rather than mere legal conclusions; the affirmations bore logical relevance to the commission of a crime in Apartment 703; Williams, the affiant, had personal knowledge of the facts affirmed; and the matters set out in the affidavit occurred within a reasonable time of the date that the affidavit was executed. We therefore hold that the issuance of the search warrant was clearly justified. See United States v. Ramirez, 2 Cir., 279 F.2d 712, 715 (1960), cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960).

As to the execution of the search warrant, appellants contend that the officers violated the provisions of 18 U.S. C.A. § 3109 by entering the apartment in question by force without first identifying themselves and announcing the purpose of their presence. See Jones v. United States, 104 U.S.App.D.C. 345, 262 F.2d 234 (1958), reversed 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), dismissed 368 U.S. 801, 82 S.Ct. 20, 7 L.Ed.2d 15 (1961), conviction affirmed after remand, D.C.Cir., 304 F.2d 381 (1962); Woods v. United States, 99 U.S. App.D.C. 351, 240 F.2d 37 (1956), cert. denied, 353 U.S. 941, 77 S.Ct. 815, 1 L.Ed.2d 760 (1957), cert. denied, Curtis v. United States, 354 U.S. 926, 77 S.Ct. 1385, 1 L.Ed.2d 1438 (1957). This question presented an issue of fact for the trial court to resolve at the pre-trial hearing on the motion to suppress evidence, and we are satisfied from the examination of the record of such hearing that there was substantial evidence to justify the order denying the motion. The record demonstrates that the officers, armed with the search warrant, arrived at the apartment described therein shortly after Luther Williams and appellants had entered the apartment. The officers found the door to the apartment closed but heard sounds from within. One of the agents knocked on the door and stated that they were "federal officers with a search warrant." When they received no response and when the sounds from within ceased, one of the officers opened the door three or four inches to the point where it was held by a safety chain. Thereupon, one of the officers again announced that they were federal officers with a search warrant and when they again received no response, an officer struck the door and chain with a sledge hammer, causing the door to open. After thus gaining admission to the apartment, one of the agents rushed to the bathroom, where he saw appellant Ruffin throw or drop a shiny object into the toilet and attempt to flush it and its contents (a white powder) down the drain. Reaching into the toilet bowl as it was being flushed, the agent produced a shiny object (tin foil) and some of the white powder, later found to contain heroin. Milk sugar, a measuring spoon, a sifter and two playing cards belonging to Sykes were found together on his bed and were taken as evidence. Also seized was a small mirror sprinkled with what later proved to be heroin. Luther Williams and Sykes were in the apartment and they along with Ruffin were taken into custody.

Although appellants and Williams testified that they heard no announcement of any kind before the officers began pounding on the door with the sledge hammer, the court was not required to and did not believe appellants' version of what had transpired. Since there was substantial evidence from which the court could find that the officers complied with the legal requirements before they resorted to force, we hold that the search warrant was legally executed.

Notwithstanding the validity of the search...