U.S. v. Lemmons, 74--1874

• Decision Date: 13 February 1976
• Docket Number: No. 74--1874,74--1874
• Citation: 527 F.2d 662
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin LEMMONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 662

527 F.2d 662

UNITED STATES of America, Plaintiff-Appellee, v. Melvin LEMMONS, Defendant-Appellant.

No. 74--1874.

United States Court of Appeals, Sixth Circuit.

Argued April 14, 1975.

Decided Dec. 24, 1975.

As Amended Jan. 14, 1976.

Rehearing and Rehearing En Banc

Denied Feb. 13, 1976.

Wilfred C. Rice, Detroit, Mich., for defendant-appellant.

Ralph B. Guy, Jr., U.S. Atty., Richard L. Delonis, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Before WEICK and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.

McCREE, Circuit Judge.

This is an appeal from conviction in a nonjury trial under a one-count indictment charging appellant with unlawful possession and intent to distribute 118.5 grams of heroin. 21 U.S.C. § 841(a)(1). ¹ We affirm.

The relevant facts are as follows. On January 16, 1973, Special Agent DePottey obtained a warrant for the search of a store building occupied by a retail clothing business known as 'Imported Fashions of Tomorrow' located at 9300 Woodward Avenue, Detroit, Michigan. Agent DePottey returned to his office with the warrant and placed it in a file. The next day DePottey was placed on extended limited duty status for medical reasons and was restricted to office activities. Sgt. Teshka of the Michigan State Police executed the warrant at about 3 p.m. on January 22, 1973, five days after the warrant was issued.

The search warrant authorized a search of the first floor and basement area of the store that was 'designated by the number 9300 above the doorway.' Before the search commenced, Sergeant Teshka showed a copy of the search warrant to Alice Jones who identified herself to him as the person in charge of the store.

Shortly after the search was started, one of the officers discovered 16 packets of heroin in a file cabinet in an office area located at the rear of the store. Miss Jones was shown the packets and was shown where they were found. Within a few minutes, Mr. Lemmons arrived at the store. He identified himself as one of the owners of the business and told one of the officers that he felt he 'had a right to see some papers that gave (the officers) permission to be on the premises.' After the store had been thoroughly searched, both Miss Jones and Mr. Lemmons were placed under arrest and Lemmons' fingerprints were taken.

A one-count indictment was returned on April 4 charging appellant and Miss Jones with violation of 21 U.S.C. § 841(a)(1). On October 30, the district court conducted an evidentiary hearing on motions for a bill of particulars, for disclosure of the identity of an informant, and for suppression of evidence. On January 24, 1974, the district court denied the motions.

A trial to the court without a jury commenced on February 26, 1974. At trial, Sgt. Mowery, a latent print specialist employed by the Michigan State Police, testified that fingerprints found on 2 of the 16 foil packets were attributable to Lemmons. The initial fingerprint analysis had been performed by Sgt. Nichols at the Michigan State Police Laboratory, but he died before trial. Accordingly, Sgt. Mowery, who had verified Nichols' findings at the laboratory, gave the testimony inculpating Lemmons. On the basis of Sgt. Mowery's testimony that appellant's prints were found on the foil packets, the district judge found Lemmons guilty of the offense charged.

On appeal we identify three issues that require discussion: (1) whether the five day delay in the execution of the warrant invalidated the search and required suppression of the foil packets containing the heroin; (2) whether probable cause existed for Lemmons' arrest, at which time his fingerprints were obtained; and (3) whether Sgt. Mowery's testimony about the fingerprint identification was admissible.

In United States v. Wilson, 491 F.2d 724 (6th Cir. 1974), we considered whether a six day delay in the execution of a search warrant required suppression of the evidence obtained. After reviewing the cases, we said that the better reasoned rule 'allowed some delay where the cause or causes of the delay could appropriately be held to be 'reasonable." 491 F.2d at 725. In Wilson we determined that since the informant had purchased drugs on the day the warrant was issued and the Government wanted to conceal the identity of the informant, the delay in executing the warrant was reasonable. Although we do not condone a delay of the magnitude that occurred here, we determine that since the delay was caused by the ill health of DePottey, the agent-in-charge, it was reasonable. We also find that probable cause still existed for the search on January 22, 1973, because the warrant was executed within ten days as required by Fed.R.Crim.P. 41(c), and because there is nothing in the record to indicate that the circumstances related in the agent's affidavit affording probable cause for the issuance of the search warrant had changed before it was executed.

In determining that the officers had probable cause to arrest Lemmons, the district court relied upon the following circumstances:

(T)he search warrant (which was based on information provided by a reliable informant) was valid; that the government in executing the search warrant discovered narcotic drugs, hand guns and other evidence that narcotics were being sold from a certain business premises (9300 Woodward Ave., Detroit, Michigan); that the narcotics were not in an area open to the public, but rather in a desk used in the conduct of the business; and that defendant Lemmons owned the building searched and operated the business in the beforementioned premises.

In Brinegar v. United States, 338 U.S. 160, 175--76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), the Supreme Court stated that probable cause to arrest existed where the facts and circumstances within an officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Although we regard the probable cause issue in this case as a close one, we hold that the officer had sufficient information to afford him probable cause to believe that Lemmons possessed the narcotics found in the file cabinet. Lemmons' status as a part owner of the business combined with the fact that the narcotics were found in a filing cabinet in the office area of the store not accessible to the general public were sufficient to cause a reasonable person to have believed that Lemmons and Miss Jones, the store manager on duty at the time of the search, were in control of the office area and possessed the drugs found there. See, e.g., Johnson v. Wright, 509 F.2d 828 (9th Cir. 1975), where the court held that it was proper to arrest three occupants of an automobile when the officer discovered a sawed-off shotgun in the vehicle. In so holding, we do not give blanket approval to the indiscriminate arrest of store proprietors solely because contraband is discovered on the premises.

Appellant next contends that the government...