United States v. Cachoian

• Decision Date: 18 July 1966
• Docket Number: No. 446,Docket 29937.,446
• Citation: 364 F.2d 291
• Parties: UNITED STATES of America, Appellee, v. Gerard CACHOIAN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

364 F.2d 291 (1966)

UNITED STATES of America, Appellee, v. Gerard CACHOIAN, Appellant.

No. 446, Docket 29937.

United States Court of Appeals Second Circuit.

Argued June 16, 1966.

Decided July 18, 1966.

Bernard P. Becker, New York City (Anthony F. Marra, New York City, on the brief), for appellant.

Robert G. Morvillo (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, Andrew M. Lawler, Jr., New York City, on the brief), for appellee.

Before HAYS, ANDERSON and FEINBERG, Circuit Judges.

PER CURIAM.

Appellant was convicted below after a jury trial of violating the federal narcotics laws, 21 U.S.C. §§ 173, 174, and sentenced to fifteen years' imprisonment as a second offender. Finding no error below, we affirm.

Appellant first attacks the admission into evidence of narcotics, which he claims were illegally seized. Accepting the government agents' testimony as true, as we must, the record shows that two agents went to appellant's apartment while one went into the courtyard of the adjoining apartment house. The two agents heard voices in the apartment and knocked on the door, but nobody answered. After a second knock, appellant asked from inside the apartment who it was. Agent Holborow said "we're Federal Agents, I'd like to speak to you." There was silence, and Holborow knocked again. The peephole opened and appellant asked who was there and what they wanted. Holborow identified himself again and stated that he wished to speak to appellant. Appellant asked for identification and was shown Holborow's badge; appellant then said to wait a minute while his wife got dressed. The agents could hear a toilet flushing and a window being opened and closed. Again appellant returned and asked the agents who they were and what they wanted; the agents identified themselves and showed a badge. Appellant asked if they had a search warrant; he was told "no," and that the agents merely wanted to talk with him. In requesting entrance to the apartment, the agents used an "authoritative law enforcement" tone of voice. While the agents had been waiting to be admitted, Agent Krueger in the courtyard saw an individual dressed in white shirt and dark tie open the window and make a throwing gesture. Krueger felt something hit him and found in the immediate area four bundles of glassine envelopes containing what proved to be heroin. Apparently, after the heroin was thrown out of the window, the first two agents were admitted by appellant into the apartment. Once inside, they saw appellant, dressed like the man in the window, appellant's wife, and another man dressed in a dark shirt. Thereafter, Agent Krueger knocked and was also admitted into the apartment. Krueger showed appellant the envelopes and asked if they were his. Appellant at first denied ownership, but after Krueger told him what he had observed, appellant admitted that he had thrown them. Appellant was thereafter formally placed under arrest.

This version of what happened was contradicted by defense witnesses who claimed that the agents' entry was accompanied by yelling and threats of breaking the door down. However, the testimony of these witnesses was specifically rejected on credibility grounds by the trial judge, in denying the motion to suppress. Thus, the credited testimony shows a vigorous and repeated request by the agents for permission to enter to speak to appellant but an acknowledgment that they had no warrant, a hasty disposal of narcotics, and a voluntary admission of the agents thereafter. Appellant argues that the entry was illegal because consent to enter was not freely given, relying principally on Pekar v. United States, 315 F.2d 319 (5th Cir. 1963), and Hobson v. United States, 226 F.2d 890 (8th Cir. 1955). But in Pekar, where the defendant let two agents into his hotel room after they persisted for ten minutes, the evidence was thereafter taken from the room; defendant's interests were obviously against letting the agents in to inspect the premises. Here, appellant probably believed that he was in the clear, having thrown the contraband out the window. See United States v. Smith, 308 F.2d 657, 663 (2d Cir. 1962), cert. denied, 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716 (1963). Hobson is also distinguishable because the officers there broke into a house. Consent is principally a question of fact in each case, see United States v. Thompson, 356 F.2d 216, 220 (2d Cir. 1965), better resolved at the trial level. If the district judge believed the government's witnesses — as he did — then it was not error to hold that consent was proven, even though it is not "lightly inferred," see United...