United States v. Davis

• Decision Date: 01 September 1960
• Docket Number: No. 12870.,12870.
• Citation: 281 F.2d 93
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

281 F.2d 93 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. Fred DAVIS, Defendant-Appellant.

No. 12870.

United States Court of Appeals Seventh Circuit.

July 22, 1960.

Rehearing Denied September 1, 1960.

George F. Callaghan, Julius Lucius Echeles, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., Robert F. Monaghan, Asst. U. S. Atty., Chicago, Ill., of counsel, for appellee.

Before HASTINGS, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

A jury found defendant, Fred Davis, guilty on four counts of an indictment charging Fred Davis with three unlawful sales of narcotics to Dorothy Saunders in violation of Section 4705(a), Internal Revenue Code of 1954, as amended by the Narcotic Control Act of 1956, 26 U.S.C.A. § 4705(a), and with knowing and unlawful receipt, concealment, etc. after unlawful importation, of narcotics, in violation of Section 174, Title 21 U. S.C.A., as amended by the Narcotic Control Act of 1956.

Defendant was sentenced to twenty years' imprisonment on the first and second counts, to run consecutively, and to twenty years on the third and fourth counts, to run concurrently with the sentence on the first two counts, or to forty years in all.

The purported errors on which defendant relies in his appeal to this Court concern denial of petition to suppress evidence and motion for judgment of acquittal; and instructions to the jury.

In connection with the petition to suppress evidence, defendant testified that he had been arrested in his store without arrest or search warrant; that his person and the store had been searched; that a sum of money, part of which belonged to his partner, had been taken from him; that he was then taken to his apartment on the first floor at 4540 S. Drexel Boulevard, several miles away, where he found that the door had been broken in, that present in the apartment were several officers who had no search warrant, Dorothy Saunders, whom he said he did not then know, and his paying guest Bernice Toomer; that he pointed out his own bedroom and acknowledged ownership of clothing in the apartment belonging to him, but coundn't say whether currency shown him by one of the officers was or was not his money.

It was stipulated that no arrest or search warrant was used.

Narcotics Agent James Bailey testified that on February 11, 1959, he had told Dorothy Saunders that he wished to buy narcotics for $75 and that she said she would take care of him. On her instruction Agent Bailey had driven to 43rd Street and Drexel Boulevard in Chicago, where Mrs. Saunders went into a drug store. When she came out, she said, "O. K., he is there" and directed Bailey to drive to 46th Street, where she again got out and walked north on Drexel Boulevard. Bailey testified that he did not see where she went, but that other agents were in the vicinity.

Agent Irving Lipshutz testified that on February 11, 1959, he saw Mrs. Saunders enter an automobile with Bailey; that he followed and saw her first enter what appeared to be a liquor store at 43rd Street and Drexel Boulevard, come out and re-enter the automobile, and then later, enter a gangway to the building at 4540 Drexel Boulevard from which she returned, in about five to ten minutes, to Bailey. He could not ascertain which apartment in the building she had entered.

Bailey testified that when Mrs. Saunders returned to him, she handed him a brown manila envelope. Bailey gave her $75. The serial numbers of the bills had been recorded. He field tested the contents of the envelope for narcotics and noted a positive reaction. He later saw the chemist's report showing that the substance he received contained heroin.

When asked about February 17, 1959,¹ Bailey testified further that he had told Mrs. Saunders he wanted to do the same thing, that again he drove to 43rd Street and Drexel Boulevard where Mrs. Saunders entered the drug store, came out and said "he was there" and to drive to 46th Street, which he did. He gave her $75. She walked north on Drexel.

When asked about February 16, 1959, Agent Lipshutz testified that he again followed Dorothy Saunders and Bailey from 35th and Prairie, saw Mrs. Saunders enter a liquor store, come out in a few minutes, and then enter the front entrance of the building at 4540 S. Drexel Boulevard. He was dressed as a taxicab driver and, following Mrs. Saunders into the entryway and up the stairs of the building at 4540 S. Drexel Boulevard, he saw her knock at defendant's apartment door and be admitted.

Bailey testified that when Mrs. Saunders returned to the car on February 16th, she gave him a brown manila envelope containing a white powder, which, on testing, proved to contain heroin.

Bailey described a similar transaction on February 18th, with reference to $140 worth of heroin. On February 20th, Bailey testified, he again met Mrs. Saunders and went through the same routine. On cross-examination, he added that on this occasion she did not say "he is there" on her return from the drug store.

Agent Theodore Heisig testified that on February 20th, he knew Bailey planned to contact Mrs. Saunders and that, at about 7:30 p. m., in company with Agents Gabrys and Morris, he observed Mrs. Saunders enter the apartment house at 4540 Drexel Boulevard, and go up to the first floor apartment, knock on the door, say, "This is Dorothy," and be admitted. Agent Lipshutz, who also observed Mrs. Saunders walk toward the building, put the time at 7:00 p. m. Agent Bailey on cross-examination testified that it was about 8:15 p. m. when he met Dorothy Saunders on February 20, 1959. Defendant stresses the fact that it was already dark at the time. Heisig testified further that he was about to knock on that same door when an unidentified man came down the stairs and knocked on the door. Mrs. Saunders came to the door. Heisig told her he was a Federal Narcotics Agent and that she was under arrest. She slammed the door. The agents forcibly entered the apartment. They found Dorothy Saunders in the living room and made her arrest effective. Later Bernice Toomer who was also in the apartment was arrested.

When Mrs. Saunders had left him, Bailey had not waited for her return but had gone to defendant's apartment. There he had found Agents Morris, Heisig and Lipshutz, Dorothy Saunders, and Bernice Toomer. On cross-examination Bailey said that Agents Valentine, Singer, Gabrys and Morris came into the apartment after him. Bailey testified further that Mrs. Saunders told him Mrs. Toomer had taken the heroin. Under the covers of the bed on which Mrs. Toomer had just been sitting, Bailey found $140 and nine packages which proved to contain heroin. The serial numbers of the currency tallied with his list of bills given to Mrs. Saunders. After the seizure of the heroin, Agents Singer and Halasz were sent to defendant's store. They shortly returned with defendant, who admitted that the apartment was his. Bailey testified further that he checked money taken from defendant's person, and from clothing in defendant's apartment which belonged to defendant, and found $30 which tallied with his list of bills given to Mrs. Saunders. All of the agents who testified stated that they knew of the prior transactions described by Bailey.

Defendant argues that breaking down the door of his apartment in the night-time without a search warrant was illegal; that the arrest of defendant without a search warrant was likewise illegal; that the arresting officers had no probable cause for an honest belief that defendant was committing a crime; and that the evidence seized in his apartment and from the person of defendant should have been suppressed on his motion to that effect seasonably made in advance of trial.

It is defendant's position that the agents forcibly entered defendant's apartment not to arrest Mrs. Saunders, but for the sole purpose of making an illegal exploratory search of defendant's apartment. Defendant argues that Agents Heisig and Gabrys had no probable cause to believe a crime was being committed in defendant's apartment by anyone, let alone by the defendant, and that Mrs. Saunders' arrest could have been effected at any time on February 11, 16, 18, or on February 20, before she entered defendant's apartment; and that, in any case, a warrant could have been secured because Mrs. Saunders was not fleeing apprehension and was, in fact, under adequate surveillance to prevent her escape. Besides, defendant argues, Mrs. Saunders could have been arrested in the living room, and there was no basis for search of other parts of the apartment.

As to the agents who arrested defendant in his store, defendant contends that even if they knew narcotics had been found in his apartment, they also must have known that Mrs. Toomer was in the apartment at the time and that the narcotics were found in the bed on which she had been sitting, and that they could not therefore have had probable cause for his arrest.

The government relies on Title 26 U. S.C. § 7607, which authorizes Narcotics Agents to

"* * * make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation."

It is clear from the chain of evidence adduced at the hearing on the motion to suppress that the agents who arrested Mrs. Saunders and defendant all had reasonable grounds, from their own direct observation or from information available from fellow agents, to believe that both Mrs. Saunders and defendant had committed a violation of the laws relating to narcotic drugs. United States v. Walker, 7 Cir., 1957, 246 F.2d 519, 525, 526, 527; Draper v. United States, 1959, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327. In each case arrest...