United States v. Frierson, 13425.

• Decision Date: 04 April 1962
• Docket Number: No. 13425.,13425.
• Citation: 299 F.2d 763
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William FRIERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

299 F.2d 763 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. William FRIERSON, Defendant-Appellant.

No. 13425.

United States Court of Appeals Seventh Circuit.

February 27, 1962.

Rehearing Denied April 4, 1962.

Lucas T. Clarkston, Maurice Scott, Jr., Chicago, Ill., for defendant-appellant.

James P. O'Brien, U. S. Atty., Robert A. Maloney, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, John Powers Crowley, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee.

Before DUFFY, SCHNACKENBERG and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

Defendant, William Frierson, charged in an indictment with concealing and facilitating the concealment and transportation of a narcotic drug in violation of 21 U.S.C.A. § 174, was found guilty by a jury and was later sentenced to a term of imprisonment.

Defendant appeals on two grounds: 1) a motion to suppress evidence consisting of heroin found in defendant's apartment was erroneously denied; and 2) the evidence was insufficient to sustain the verdict.

The government's evidence leading to defendant's arrest may be summarized as follows. A federal narcotics undercover agent, during September and October, 1960, bought narcotics on five occasions from Willard Wyatt, a "pusher" or dealer. Wyatt told Jackson, the undercover agent, that his new connection was named Brother. Wyatt also supplied a telephone number where he could be reached. Jackson testified he had known defendant for ten years; that defendant was also known as Frank Brother; and that the telephone number he was given was listed under the name of defendant's wife at defendant's address in Chicago.

Another federal narcotics agent, Meyer, testified that he had watched Wyatt's movements during the period when sales of narcotics had been made to agent Jackson; that on these occasions after Wyatt met Jackson and received sums of money Wyatt would go to defendant's apartment building and later meet Jackson to deliver the narcotics. Meyer said he had seen Wyatt and defendant together on at least three of these occasions. He also testified that he saw Wyatt at defendant's address on the evening of October 20, 1960; that after meeting defendant, Wyatt met agent Jackson and then returned to defendant's apartment. When Wyatt left the apartment shortly after midnight, Meyer and agent Voll followed and then arrested him at the point where he was to make delivery to agent Jackson. A quantity of heroin was found in Wyatt's possession.

Based on their observances of defendant, especially on this particular evening, and defendant's past conviction and present reputation as a narcotics violator, the agents proceeded to defendant's apartment intending to arrest him. Agents Voll and Olivanti went to the front door. Agents Meyer and Halpin went to the rear door. To get to the rear kitchen door of the apartment the latter had to enter through an unlocked door into a rear porch. They then waited at the rear kitchen door presumably for the purpose of preventing defendant's exit in case he should try to escape or providing help for the other agents if defendant resisted lawful arrest.

Agent Voll knocked on the front door. The door was opened by defendant. Agent Olivanti said, "We are federal narcotics agents," and showed his badge. Defendant then opened the door, which was fastened by a night chain, a little farther and seeing Voll whom he knew, said, "Oh, it's you, Charlie. Just a minute." Thereupon he attempted to shut the door and started to yell, "Get rid of the stuff; get rid of the spoon." Upon hearing these words and the agents' attempt to enter the front door, the agents at the rear door forced their way into the apartment and apprehended defendant who was running for the side porch. By this time Voll and Olivanti had forced their way through the front door.

While Voll was questioning defendant and his wife, Meyer searched the apartment and found a small glass bottle tipped over on the dresser of the rear bedroom. There was powder in the bottle and a trail of it on the floor leading to a spoon. Tests indicated the powder was heroin. The agents were not in the possession of either a warrant for defendant's arrest or a search warrant.

Defendant denies that he shouted to his wife to get rid of the "stuff". He testified that the agents did not identify themselves and he did know who was trying to enter. He also testified that the rear bedroom was sub-rented by a woman; that a man sometimes stayed with her; and that defendant and his wife had nothing to do with that room. His testimony was supported by his wife and with respect to the rear room being sub-rented his testimony was supported by a man and a woman who claimed they had lived in the room.

The District Court denied defendant's motion to suppress the evidence obtained in the search of the apartment. Defendant contends that the arrest was illegal and that the search was in violation of the Fourth Amendment.

The government relies on 26 U.S.C. § 7607¹ as authorizing the arrest. In United States v. Walker, 7 Cir., 246 F.2d 519, we recognized the validity of this statute and the necessity for it, as indicated by its legislative history, in implementing effective enforcement of the federal narcotics laws. At the same time we said that the individual's constitutional rights must outweigh any practical considerations which might ultimately corrode those rights. In United...