United States v. Harris, 15033.

• Decision Date: 08 August 1963
• Docket Number: No. 15033.,15033.
• Citation: 321 F.2d 739
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John W. HARRIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

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 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 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 7607(2), Title 26, U.S. C. The government claims that it logically follows that if the arrest of the defendant were valid, the search of the premises was incidental to the arrest and also valid.

It is well established that a valid search of premises under control of an arrested person may be made as an incident of a valid arrest. Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145; Harris v. United States, 331 U.S. 145, 151, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Wilson v. Schnettler, 365 U.S. 381, 383, 81 S.Ct. 632, 5 L.Ed.2d 620.

An arrest may not be used as a pretext or subterfuge for making a search of premises without a search warrant where ordinarily one would be required under the Fourth Amendment.¹ If, in fact, the primary purpose of forcibly entering a person's home is to search for evidence with which to convict him of crime, the evidence so obtained is not admissible in court. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 76 L.Ed. 877; Harris v. United States, 331 U.S. 145, 153, 67 S.Ct. 1098, 91 L. Ed. 1399; Abel v. United States, 362 U.S. 217, 225-26, 80 S.Ct. 683, 4 L.Ed.2d 668; Jones v. United States, 357 U.S. 493, 500, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Worthington v. United States, 166 F.2d 557, 566, C.A.6; Taglavore v. United States, 291 F.2d 262, 265, C.A.9. See also Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Henderson v. United States, 12 F.2d 528, C.A.4; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 1635, 10 L.Ed.2d 726.

All of the agents of the Narcotics Bureau who testified said that they went out to the defendant's apartment for the purpose of arresting him for violating the narcotics laws. The real purpose of the agents must be determined from all of the facts and circumstances surrounding the arrest of the defendant and the search of his apartment. The court is not bound to accept the purpose as stated by the agents as controlling.

The record as a whole supports the conclusion of the trial judge that the search was the principal reason for the agents going to the apartment of the defendant. The judge gave three reasons as a basis for his determination, viz., 1. That the defendant was on parole and if arrest was the only purpose of the agents, they could have had him arrested by his parole officer; 2. The concern of the agents was to prevent the defendant from trafficking in narcotics; 3. Once the defendant was apprehended he was not immediately removed from the premises but was held for approximately fifteen minutes until the search revealed evidence of narcotics.

The facts that the defendant was on parole and that parole officers were not called to make an arrest are of no consequence in this case. The elapse of time between his apprehension and the discovery of the evidence is not a deciding factor in this case. See Harris v. United States, 331 U.S. 145, 149, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 59, 70 S.Ct. 430, 94...