United States v. Harris, No. 15033.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtCECIL, , MILLER, Circuit , and BOYD
Citation321 F.2d 739
Docket NumberNo. 15033.
Decision Date08 August 1963
PartiesUNITED STATES of America, Plaintiff-Appellant, v. John W. HARRIS, Defendant-Appellee.

321 F.2d 739 (1963)

UNITED STATES of America, Plaintiff-Appellant,
v.
John W. HARRIS, Defendant-Appellee.

No. 15033.

United States Court of Appeals Sixth Circuit.

August 8, 1963.


William H. Merrill, Asst. U. S. Atty., Detroit, Mich. (Lawrence Gubow, U. S. Atty., Milton J. Trumbauer, Jr., Asst. U. S. Atty., on the brief), for appellant.

H. Donald Garfinkle, Detroit, Mich. (Harris, Stein & Hooberman, Detroit, Mich., on the brief), for appellee.

Before CECIL, Chief Judge, MILLER, Circuit Judge, and BOYD, District Judge.

CECIL, Chief Judge.

John W. Harris, defendant-appellee, was indicted in the Eastern District of Michigan, Southern Division, on a charge of receiving, concealing and having in his possession on January 31, 1962, approximately 7.61 grams of heroin, in violation of Section 174, Title 21, United States Code. A motion and an affidavit to suppress evidence were filed on behalf of the defendant-appellee. The appellant and appellee will be referred to as the government and defendant, respectively.

The District Judge upon hearing evidence and oral arguments of counsel denied the motion. Counsel for the defendant petitioned for a rehearing, further evidence was submitted to the court and the motion to suppress evidence was sustained. The government appealed.

The event which led to the indictment of the defendant occurred on January 31, 1962. On that date at about five-thirty p. m. Connie DeBiasi, a treasury agent assigned to the Bureau of Narcotics, received a telephone call at the office of the Bureau in the federal building at Detroit from a special employee

321 F.2d 740
of the Bureau. According to the testimony a special employee is a person who is himself involved in narcotic traffic and is used by the Narcotics Bureau to secure information of violations of the narcotic laws by other persons. Mr. DeBiasi had previously worked with this special employee and considered him reliable

The special employee told Mr. DeBiasi that he had just left the apartment of John Harris, known to him as Honey Boy, and that Honey Boy had a quantity of bulk narcotics which he was putting into capsule form. He said that Honey Boy was trafficking in narcotics and that there was a constant flow of people in and out of the apartment. He further said that upon completion of capping the bulk narcotics, Honey Boy would likely move his "stash" (the narcotics) to some other location. The defendant's apartment was apartment No. 17, and located at 296 Warren street in the city of Detroit.

Mr. DeBiasi made no effort to get a search warrant. He and seven other agents went immediately to the apartment of the defendant. The apartment was on the second floor. Agents DeBiasi and David took a position at a front door marked "17" opening into a hall, agents Howard, Irvin and DeFaugh were stationed at another door opening from a bed room into the same hall, and agents Marquardt and Jenits were stationed at another door opening from the living room. Another agent was stationed on the outside to watch for any evidence that might be thrown out of the window.

Mr. DeBiasi testified that he knocked and that the defendant partially opened the door. Mr. DeBiasi further testified that he told the defendant that they were police officers and that he was under arrest. The defendant attempted to slam the door shut but the agent forced it open pinning the defendant between the door and the wall of the living room. Simultaneously with agent DeBiasi's entrance he signalled the agents at the other hall door to force their entrance into the bedroom. This door was kicked in or otherwise broken in the process of entering. There was a chain on the door opened by the defendant which prevented the door from being fully opened. This chain was broken off of the door by the force applied by DeBiasi and his fellow agent.

Mr. DeBiasi testified that upon gaining entrance to the apartment he placed the defendant under arrest for possession of narcotics in violation of law. He said that after searching the defendant for weapons he took him to the kitchen and questioned him for ten or fifteen minutes concerning narcotics. The defendant denied during this interrogation and at the hearing on the petition for rehearing that he had any narcotics in his possession.

The agents made a complete search of the apartment which took about one hour. In about fifteen minutes after the entrance, agent Howard found between the open door of the apartment No. 17 and the wall of the living room a small white package containing approximately 31 pink capsules and also a gelatin capsule box containing approximately 154 capsules of suspected heroin. He took one capsule from each package and performed a field test with a Marquis reagent. He got a positive reaction which indicated that the substance of the capsules was heroin. By further search he found a small white dispensing envelope, the same as the one which contained the 31 capsules. This envelope had a notation "one half" marked on it.

Agent Howard testified that he showed the defendant the empty white envelope and the one containing the 31 capsules and asked him if these were the containers in which he purchased the bulk narcotics. He said the defendant answered in the affirmative. The defendant was taken into custody and Bertha Cummings, who was in the apartment at the time of the search, was also taken into custody. She was kept in jail over night and released the following morning.

The defendant and Bertha Cummings both testified that they did not hear any

321 F.2d 741
knocking before the forcible entry. They also testified that prior to the entrance of the agents they did not hear them identify themselves as police and that they did not hear them place the defendant under arrest

In sustaining the motion to suppress the evidence the trial judge found from the evidence that the search was not an incident of arrest, but that it was the principal reason for the officers going to the defendant's apartment.

The government claims that the agents had reasonable ground to believe that the defendant had committed or was committing, at the time of the entrance into his apartment, a violation of law relating to narcotic drugs and that they were empowered to make an arrest without a warrant. Section...

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38 practice notes
  • United States v. Sohnen, No. 68-CR-233.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 10, 1969
    ...that their purpose in entering was to search for distilling equipment, and not to arrest petitioner"); United States v. Harris, 321 F.2d 739 (6th Cir. 1963); Government of Virgin Islands v. Rijos, 285 F.Supp. 126, 133 (D.V.Is. 1968); People v. Haven, 59 Cal.2d 713, 31 Cal.Rptr. 47, 381......
  • Amador-Gonzalez v. United States, No. 23480.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 23, 1968
    ...6 Cir. 1948, 166 F.2d 557; McKnight v. United States, 1950, 87 U.S.App.D.C. 151, 183 F.2d 977; United States v. Harris, 6 Cir. 1963, 321 F.2d 739; Taglavore v. United States, 9 Cir.1961, 291 F.2d 262. The search must have some relation to the nature and purpose of the arrest. Taglavore v. U......
  • U.S. v. Trigg, No. 88-2807
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 12, 1989
    ...of other crimes as violative of the fourth amendment. See Henderson v. United States, 12 F.2d 528 (4th Cir.1926); United States v. Harris, 321 F.2d 739 (6th Cir.1963); Taglavore v. United States, 291 F.2d 262 (9th Cir.1961). This approach necessarily involves a subjective inquiry into the m......
  • Giacalone v. Lucas, No. 20707.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 30, 1971
    ...the latter fact is itself enough to invalidate the search. United States v. James, 378 F.2d 88 (6th Cir.1967); United States v. Harris, 321 F.2d 739 (6th The trial judge characterized the activities of the Internal Revenue Service and Sterling Heights Police components of the arresting expe......
  • Request a trial to view additional results
38 cases
  • United States v. Sohnen, No. 68-CR-233.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 10, 1969
    ...that their purpose in entering was to search for distilling equipment, and not to arrest petitioner"); United States v. Harris, 321 F.2d 739 (6th Cir. 1963); Government of Virgin Islands v. Rijos, 285 F.Supp. 126, 133 (D.V.Is. 1968); People v. Haven, 59 Cal.2d 713, 31 Cal.Rptr. 47, 381......
  • Amador-Gonzalez v. United States, No. 23480.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 23, 1968
    ...6 Cir. 1948, 166 F.2d 557; McKnight v. United States, 1950, 87 U.S.App.D.C. 151, 183 F.2d 977; United States v. Harris, 6 Cir. 1963, 321 F.2d 739; Taglavore v. United States, 9 Cir.1961, 291 F.2d 262. The search must have some relation to the nature and purpose of the arrest. Taglavore v. U......
  • U.S. v. Trigg, No. 88-2807
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 12, 1989
    ...of other crimes as violative of the fourth amendment. See Henderson v. United States, 12 F.2d 528 (4th Cir.1926); United States v. Harris, 321 F.2d 739 (6th Cir.1963); Taglavore v. United States, 291 F.2d 262 (9th Cir.1961). This approach necessarily involves a subjective inquiry into the m......
  • Giacalone v. Lucas, No. 20707.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 30, 1971
    ...the latter fact is itself enough to invalidate the search. United States v. James, 378 F.2d 88 (6th Cir.1967); United States v. Harris, 321 F.2d 739 (6th The trial judge characterized the activities of the Internal Revenue Service and Sterling Heights Police components of the arresting expe......
  • Request a trial to view additional results

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