United States v. Becker

• Decision Date: 05 October 1973
• Docket Number: No. 73-1208.,73-1208.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence F. BECKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

485 F.2d 51 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence F. BECKER, Defendant-Appellant.

No. 73-1208.

United States Court of Appeals, Sixth Circuit.

Argued June 14, 1973.

Decided October 5, 1973.

David Kerwin, Detroit, Mich., for defendant-appellant; Neil H. Fink, Detroit, Mich., on brief.

Robert D. Sharp, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee; Ralph B. Guy, Jr., U.S. Atty., Detroit, Mich., on brief.

Before WEICK, McCREE and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

This appeal is from a conviction for violation of 21 U.S.C. § 841(a)(1), possession of controlled substances with intent to distribute or dispense. Appellant waived trial by jury and the case was tried before the Court with the same judge presiding who conducted the hearing on a motion to suppress evidence. On appeal it is claimed that evidence consisting of 1,000 L.S.D. tablets was illegally seized and should have been suppressed by the district judge.

A recital of the facts is necessary. An undercover agent purchased a quantity of mescaline at a motel in Detroit at approximately 10:00 p. m. on March 3, 1972. He told the seller that he would be interested in purchasing more drugs, and memorized the telephone number given to the motel operator as the seller contacted his "man." The seller was heard to say to someone he called "Larry" that he needed 30,000 more "hits" of mescaline and would be over in 30 minutes to pick it up. The seller described "Larry" as the number two man in Detroit for mescaline.

Shortly thereafter narcotics agents arrested everyone in the motel room where the sale had taken place. The undercover agent passed the telephone number to the arresting officers who verified it with the motel operator. By the time the location and name of the subscriber to the telephone number had been ascertained it was about 11:30 p. m. Based on information received from the telephone company a group of approximately eight agents went to appellant's residence in Oak Park, Michigan, arriving shortly after midnight. After knocking on the door and identifying themselves, the agents forcibly entered Becker's apartment.

Appellant was sitting on a couch in the living-dining room area of his apartment watching television. He was directed to stand next to a wall with his hands up against it. This location was approximately 12 feet from the corner of the couch where Becker was first seen, and was the nearest wall space free of furniture or openings. The arresting agent testified that he had no handcuffs and finally secured Becker with a belt. He stated that appellant kept turning around and "wasn't being real cooperative." Some four or five minutes elapsed before the prisoner was secured. Another agent who was in the same room said that Becker refused to follow orders—that he continued to turn around, kept his hands down instead of up and was constantly moving in a direction other than where he was told to remain. He described appellant's conduct as "resisting" and said it was almost five minutes before the resistance ended.

There was a desk-type table three to five feet from where appellant was standing and the L.S.D. tablets were found in one of its drawers which had been closed. The agent who discovered the drugs stated, "There was a time when I secured the chest to make sure there were no weapons." He said that when Becker had been subdued the other agent searched the prisoner while he checked the surrounding area for weapons. This witness testified that he had put his gun away before he began his search for weapons and that he was "no longer threatened by the situation." However, since Becker had not been tied with the belt at that time, he considered that there was "still a potential danger." It was admitted that Becker never tried to use physical force on any agent. In response to a question by Judge Kennedy the agent who subdued Becker stated that he was searching him when the pills were found and that he did not believe he had put the belt on appellant's arms at that time. The agents stayed in the house for approximately 30 minutes and a general search of the premises was conducted.

The agents who arrested appellant and seized the tablets and other items in his home had neither a search warrant nor a warrant for his arrest. It was testified that the purpose in entering the premises of Becker was to arrest him and there was no advance discussion about a search. Before entering the house, each agent was assigned an area of the premises with responsibility for making sure that no other persons were present and to look for weapons within reach. Appellant testified that from the time the agents entered there was a great deal of noise from all parts of the apartment which indicated that a search was being conducted. He said he kept turning from the wall to try to see what was going on. The agent in charge stated that it would have taken too much time to obtain an arrest warrant at midnight in view of the fact that the seller had informed Becker over the telephone that he would pick up the order of drugs in about 30 minutes. From the telephone conversation the agents believed a crime was being committed by "Larry," the person who agreed to furnish drugs, and that probable cause existed for an arrest.

The foregoing evidence was developed on a motion to suppress all evidence seized in Becker's apartment. The District Court made the following findings: (1) The officers announced their presence and purpose a reasonable time before entering the premises. (2) The search of the chest three to five feet from the appellant was permitted as a search of the immediate area incident to arrest. Such a search could include closed drawers into which Becker could reach for either a weapon or evidence which he might be able to destroy. (3) Items seized in other parts of the house resulted from a general search which was not permissible. All evidence taken from other areas of the apartment was suppressed. (4) There was no prior opportunity to secure an arrest warrant, but probable cause did exist for the arrest of Becker. (5) The purpose of the officers' going to Becker's residence was to arrest him, and his arrest was not a ruse to search the premises.

Appellant maintains that his Fourth Amendment rights were violated by both the forcible entry and arrest without a warrant and the warrantless search of his home and seizure of his property. The record contains evidence which supports the finding of the district judge that there was no prior opportunity under the circumstances of this case for the officers to obtain an arrest warrant in view of the indication from the motel that the drugs would be picked up in about 30 minutes and the fact that it took longer than that just to determine the location and identity of the subscriber to the telephone with which the seller was connected. The finding that identification and purpose were announced a reasonable time before entry was made into appellant's premises is likewise supported by the evidence.

While the finding that the officers had as their purpose the arrest of Becker, and that the arrest was not a mere ruse to conduct a search is not clearly erroneous, this matter deserves comment. The Constitution contemplates that searches will be made upon the basis of a prior determination of necessity by a disinterested magistrate. McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The warrantless search remains the exception which must be justified. Where the justification relied upon is that the search is a necessary incident to a lawful arrest the restricted scope of this exception must be observed. This is especially true where the search is conducted in a person's home at night. Such warrants issued pursuant to Rule 41, Fed.R.Crim.P. are subject to the following limitation:

The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time. Fed.R.Crim.P. Rule 41(c).

Since a nighttime search with a warrant requires more positive information than one conducted in the daytime, the Courts should be alert to prevent evasion of this requirement by resort to warrantless nighttime searches incident to arrest where the real purpose is a search and the arrest is only a pretext.

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Supreme Court analyzed the extent of the "search incident to arrest" principle as follows:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer\'s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee\'s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee\'s person and the area "within his immediate control"—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a

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