United States v. Arrington, 11088.

• Decision Date: 03 September 1954
• Docket Number: No. 11088.,11088.
• Citation: 215 F.2d 630
• Parties: The UNITED STATES, Plaintiff-Appellee, v. Broadway ARRINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

215 F.2d 630 (1954)

The UNITED STATES, Plaintiff-Appellee, v. Broadway ARRINGTON, Defendant-Appellant.

No. 11088.

United States Court of Appeals Seventh Circuit.

September 3, 1954.

George F. Callaghan, Chicago, Ill., for defendant appellant.

Robert Tieken, U. S. Atty., Richard G. Kahn, Irwin N. Cohen, Asst. U. S. Attys., Ill., for plaintiff appellee.

Before MAJOR, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.

MAJOR, Chief Judge.

Defendant having waived a trial by jury was tried by the court upon an indictment which charged a violation of Sec. 1708, Title 18 U.S.C.A., which provides in material part: "Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted * * *." (followed by the prescribed penalty). From the judgment predicated upon the court's finding of guilt, defendant appeals.

Defendant, prior to trial, by appropriate motion sought to suppress evidence obtained from his home by officers as the result of a search without a warrant, alleged to have been in violation of defendant's constitutional rights. A ruling on this motion was deferred until the conclusion of the trial, when it was denied on a finding by the court that the defendant had voluntarily consented to the search.

Defendant before this court seeks a reversal upon two grounds, (1) that the court erred in its denial of his motion to suppress evidence, and (2) that the evidence is insufficient to prove that defendant had knowledge that the property found in his possession was stolen.

This court, in an opinion announced May 28, 1954, found it unnecessary to pass upon the issue raised by defendant's motion to suppress for the reason that the evidence, other than that obtained by the alleged illegal search and seizure, was sufficient to authorize a finding of guilt. On further review of the record in connection with defendant's petition for rehearing, we are satisfied that the reasoning by which we previously affirmed is unsound and that the issue raised on defendant's motion to suppress must be decided. In fact, it is conceded by the government that if that issue is decided in favor of defendant, the judgment must be reversed. In view of the situation thus stated, our opinion previously announced is, on this petition for rehearing, vacated and set aside, and it is directed that it be stricken from the records of this court.

Defendant's motion to suppress was predicated upon his contention that evidence was obtained by an unlawful search of his home and that the seizure therein of the alleged stolen property was in violation of the Fourth Amendment to the Constitution of the United States, which provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation * * *."

It is admitted that three officers, namely, Eppel and Dilley, both United States Postal Inspectors, and Delaney, a police officer of the City of Chicago, on January 14, 1953, entered defendant's home, searched and seized the evidence in question, without a warrant for his arrest or a warrant authorizing a search of his home. It is not claimed that the search and seizure was made incident to arrest but it is sought to be justified solely on the basis that it was made with the consent of defendant, and, as stated, the court made a finding in support of this theory and, therefore, denied defendant's motion to suppress.

We reach the conclusion that the court erred in denying defendant's motion to suppress. Such being the case, it will not be necessary to consider any other issue. The conclusion we have reached makes it important, we think, to review the record in some detail. Before doing so, however, it appears to be in order, lest they be forgotten, to reiterate some of the principles and admonitions uttered by the Supreme and other courts relative to the search of a man's home and seizure of property found therein.

In Go-Bart Importing Company v. United States, 282 U.S. 344, at page 357, 51 S.Ct. 153, at page 158, 75 L.Ed. 374, the court in condemning searches made in the absence of a proper warrant stated "The need of protection against them is attested alike by history and present conditions. The Amendment is to be liberally construed and all owe the duty of vigilance for its effective enforcement lest there shall be impairment of the rights for the protection of which it was adopted. Citing cases."

In McDonald v. United States, 335 U.S. 451, at page 453, 69 S.Ct. 191 at page 192, 93 L.Ed. 153, the court stated: "This guarantee of protection against unreasonable searches and seizures extends to the innocent and guilty alike. It marks the right of privacy as one of the unique values of our civilization and, with few exceptions, stays the hands of the police unless they have a search warrant issued by a magistrate on probable cause supported by oath or affirmation. And the law provides as a sanction against the flouting of this constitutional safeguard the suppression of evidence secured as a result of the violation, when it is tendered in a federal court."

In Goldman v. United States, 316 U.S. 129, 142, 62 S.Ct. 993, 999, 86 L.Ed. 1322, the court stated: "Its protecting arm extends to all alike, worthy and unworthy, without distinction. Rights intended to protect all must be extended to all, lest they so fall into desuetude in the course of denying them to the worst of men as to afford no aid to the best of men in time of need."

In Agnello v. United States, 269 U.S. 20, 32, 46 S.Ct. 4, 6, 70 L.Ed. 145, the court stated: "While the question has never been directly decided by this court, it has always been assumed that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein. Citing cases. The protection of the Fourth Amendment extends to all equally — to those justly suspected or accused, as well as to the innocent. The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws. Congress has never passed an act purporting to authorize the search of a house without a warrant."

In Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, the court stated: "The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent."

A number of such cases are reviewed in Catalanotte v. United States, 6 Cir., 208 F.2d 264. After such review, the court made a significant comment in 208 F.2d at page 268: "We have noted with disapproval the growing tendency on the part of police officers to be very quick on the trigger in construing — and acting upon their construction — a statement of some known offender as an invitation to search his premises. The present case is a rather extreme example of this tendency; and the action of the officers involved herein is disapproved."

Notwithstanding the critical manner in which courts have thus treated the search of a home without a warrant, this court, as well as others, has recognized that the protection afforded by the Fourth Amendment may be waived by consent, provided it is freely, voluntarily and understandingly given.

In United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, the Supreme Court approved on disputed evidence a finding of consent by search in a case where the consent was obtained while the defendant was in the custody of police officers. However, it was emphasized and appears to have been the determinative factor that the defendant when taken into custody admitted his guilt and consented to the recovery of stolen property which he admitted was in his home.

In United States v. Asendio, 3 Cir., 171 F.2d 122, at page 124, the court refused to approve a finding that defendant had consented to the search of his premises and in doing so stated: "The federal agents and city policemen were a show of authority and force to which defendant merely submitted. As in the Johnson case Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, the arrest of defendant could be justified only by the search, and the search by the arrest."

In Judd v. United States, 89 U.S.App. D.C. 64, 190 F.2d 649, the court reversed a conviction on evidence obtained by a consent search, in which the cases dealing with such a search are cited. The Court, after pointing out that the consent was obtained while the defendant was in jail, among other things stated in 190 F.2d at page 650: "Searches and seizures made without a proper warrant are generally to be regarded as unreasonable and violative of the Fourth Amendment. True, the obtaining of the warrant may on occasion be waived by the individual; he may give his consent to the search and seizure. But such a waiver or consent must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied." And the court further stated in 190 F.2d at page 651: "Intimidation and duress are almost necessarily implicit in such situations; if the Government alleges their absence, it has the burden of convincing the court that they are in fact absent. This burden on the Government is particularly heavy in cases where the individual is under arrest."

The reasoning in the Judd case was reiterated by the same court in Nelson v. United States, D.C.Cir., 208 F.2d 505, at page 509,...