United States v. Buchner, Cr. No. 339-58.

• Decision Date: 12 May 1958
• Docket Number: Cr. No. 339-58.
• Citation: 164 F. Supp. 836
• Parties: UNITED STATES of America v. William L. BUCHNER, Jr.
• Court: U.S. District Court — District of Columbia

164 F. Supp. 836

UNITED STATES of America v. William L. BUCHNER, Jr.

Cr. No. 339-58.

United States District Court District of Columbia.

May 12, 1958.

Oliver Gasch, U. S. Atty., and Alfred Hantman, Asst. U. S. Atty., Washington, D. C., for the United States.

John R. Fitzpatrick, Washington, D. C., for defendant.

TAMM, District Judge.

The defendant William L. Buchner, Jr., who was indicted on several counts in an indictment charging violation of Title 22, Sections 1501, 1502, 1504, and 1505 of the District of Columbia Code, has moved for the return of seized property and suppression of evidence seized pursuant to a search warrant from apartment 301 at 2500 K Street, N. W., in the City of Washington, District of Columbia.

The evidence disclosed at a hearing on this motion reveals that a police officer had, on at least five occasions, entered this apartment building and proceeded to the hallway in front of the defendant's apartment. Upon arrival at apartment 301, he would then eavesdrop, and what he heard as a result of this eavesdropping convinced him that a lottery was in operation. The information which the police officer secured in this manner served as a basis for arrest and search warrants which were later executed.

The defendant has filed a timely motion to suppress the seized evidence— his contention being that since the police officer had no authority to enter the apartment building, he was a trespasser, and therefore any information which he obtained in his role as a trespasser was illegal and thus could not constitute probable cause for the issuance of the search and arrest warrants.

The defendant relies heavily, if not exclusively, on the case of McDonald v. U. S., 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, in which the Supreme Court held that the officers were not justified in making a forcible entry into a rooming house, especially so since they possessed no type of a warrant. Mr. Justice Jackson wrote (335 U.S. at page 458, 69 S.Ct. at page 194):

"But it seems to me that each tenant of a building, while he has no right to exclude from the common hallways those who enter lawfully, does have a personal and constitutionally protected interest in the integrity and security of the entire building against unlawful breaking and entry."

Further, the Supreme Court relies heavily upon the fact that the manner itself in which the police entered the rooming house constituted a crime that was more serious than the crime that they were attempting to suppress. This Court feels that because of the emphasis placed upon the fact that a forcible entry was involved in the McDonald case, the holding of the McDonald case should be applied only in instances involving forcible entry, or where permission to enter has been denied. Further, the application of this rule will also depend upon the particular fact situation in each case.

In the case before this Court, there has not been the slightest disclosure that the police officer used "force" to enter the apartment building at any time.

Mr. Justice Jackson, in the case of McDonald v. U. S., supra, also wrote as follows:

"Had the police been admitted as guests of another tenant or had the approaches been thrown open by an obliging landlady or doorman, they would have been legally in the hallways. Like any other stranger, they could then spy or eavesdrop on others without being trespassers. If they peeped through the keyhole or climbed on a chair or on one another's shoulders to look through the transom, I should see no grounds on which the defendant could complain. If in this manner they, or any private citizen, saw a crime in the course of commission, an arrest would be permissible."

But, let us assume that the policeman was guilty of a trespass as the defendant contends. In the case of United States v. Hayden, D.C., 140 F.Supp. 429, the following facts were developed. The defendant was known by investigators of the Alcohol and Tobacco Tax division to be a major violator. The police had learned on two previous seizures that this defendant was a "backer" of the illegal activity and was never present himself. But they also determined that he had a certain truck that he used to transport the liquor. The police then began to observe the defendant's activities for a few months. Finally, on a Sunday in September, one of the agents who had been keeping the defendant under surveillance saw that the defendant's personal car was in front of his dry cleaning plant and that the truck was gone. The dry cleaning plant, which was the defendant's, was never open on Sundays so the agent suspected that the defendant was using the truck to pick up liquor. After locating the truck and following it for a while, the agent lost it. Returning to the cleaning plant that evening, the agent saw the truck parked in the drive-way beside the cleaning plant. The agent then approached the truck and, looking through the rear window, saw a partially covered cardboard container which was of the type and size customarily used to carry jars of illegal liquor. He also detected the distinctive odor of nontax-paid liquor. After notifying his superior who, upon his arrival, also walked down the defendant's driveway and observed the contents of the truck through the rear window, these two agents in the company of two others stationed themselves across the street from the defendant's premises. The next...