United States v. Horton

Decision Date07 September 1949
Docket NumberCr. A. No. 5378.
Citation86 F. Supp. 92
PartiesUNITED STATES v. HORTON et al.
CourtU.S. District Court — Western District of Michigan

Joseph F. Deeb, United States Attorney, Grand Rapids, Mich., and Kenneth P. Hansma, Assistant United States Attorney, Grand Rapids, Mich., for plaintiff.

Julius Lucius Echeles, Chicago, Ill., for defendants.

STARR, District Judge.

Defendants Willie M. Horton and Ernest Davidson, Jr., were indicted by a grand jury in this court on May 10, 1949. Count one of the indictment charged that on or about April 9, 1949, defendants knowingly and fraudulently transported from Chicago, Illinois, to Kalamazoo, Michigan, a quantity of narcotic drugs, to-wit: approximately one ounce of cocaine, knowing the said drugs to have been unlawfully imported into the United States. 21 U.S.C.A. § 174. Count two charged that on or about April 9, 1949, the defendants unlawfully and knowingly transported from Chicago, Illinois, to Kalamazoo, Michigan, a quantity of marihuana, to-wit: five marihuana cigarettes, without having, prior to transporting them, paid the tax imposed by section 3230 of the Internal Revenue Code, 26 U.S.C.A. § 3230, and without having, prior to transporting said marihuana, registered their names, style, and place of business with the Collector of Internal Revenue for the District of Michigan, as required by section 3231 of the Internal Revenue Code, 26 U.S.C.A. § 3231. 26 U.S.C.A. § 3234(b).

Defendants, who were represented by counsel, were arraigned on May 12, 1949, and entered pleas of not guilty. On the same date they filed motion to suppress the evidence seized by the officers and to quash the indictment against them, on the ground that their arrests and the searches incident thereto were without warrants and were illegal because in violation of their constitutional rights under the Fourth and Fifth Amendments1 of the Constitution of the United States. In other words, the defendants claim that the evidence obtained by the arresting officers was obtained by means of an unreasonable search and seizure, contrary to the provisions of the Fourth Amendment, and that to permit the introduction of that evidence would amount to a violation of the self-incrimination clause of the Fifth Amendment.

The pertinent events leading up to and culminating in the arrests and searches here in question are as follows: Arrangements had been made through one Frank Murphy of Kalamazoo, Michigan, to have defendant Willie Horton come from Chicago, Illinois, to Kalamazoo and make a sale of narcotics to one "Rusty." "Rusty" was in fact a Federal narcotic agent. The sale was to be consummated at the home of said Frank Murphy in Kalamazoo some time during the night of April 8, or the early morning of April 9, 1949. In pursuance of this plan, detectives Dykehouse and Sackett of the Kalamazoo police department and two Federal narcotic agents (one of whom was "Rusty") maintained a vigil at Murphy's home throughout the night of April 8th. During the night several longdistance telephone calls were made to Murphy by a person who said that his name was Willie and who was identified by Murphy as being defendant Willie Horton. These conversations were overheard by detective Dykehouse, who listened at an extension of the main telephone or stood so near the receiver of the main telephone as to be able to overhear the conversation. In these conversations the person who identified himself as Willie indicated that he was on his way from Chicago to Kalamazoo to make the arranged sale to "Rusty." The last call was received at about four o'clock in the morning of April 9th, at which time the person calling asked if the buyer was still there and stated that he was in Paw Paw, Michigan, and would arrive at Murphy's home in a few minutes. Paw Paw is about 16 miles from Kalamazoo. The officers continued their vigil for several hours, but defendant Horton did not arrive. Thinking that he would not appear, the officers left the premises at about 7:30 in the morning, and detective Dykehouse told Murphy to telephone him if Horton arrived. At about nine o'clock detective Dykehouse received a telephone call from Murphy advising him that Horton had arrived and was ready to consummate a sale. A few minutes later detective Dykehouse received another telephone call from Murphy advising him that Horton was "scary" and had left, and that he had driven to the top of a hill about a block from Murphy's home and was parked there in a 1947 gray Ford sedan. Detective Dykehouse immediately dispatched detectives Sackett and Gerlofs to that area and followed in his own car shortly thereafter. Detectives Sackett and Gerlofs found a 1947 gray Ford sedan parked about a block from Murphy's home, and as they swung their car in front of the parked vehicle, they observed the occupant reach into his right-hand coat pocket and then bend down in the car as though he were placing something under the front seat. The occupant of the car was defendant Horton. He was placed under arrest and both he and his automobile were searched. Detective Dykehouse arrived at the scene shortly after the arrest and assisted in the search. Under the driver's seat of the automobile detective Sackett found a small bottle, similar to a perfume bottle, which was from one-fourth to one-third full of a white powder. Upon questioning, defendant Horton told the officers that the automobile in which he was found was owned by one Ernest Davidson and that Davidson had been dropped off at another address in Kalamazoo to visit a girl friend. The officers attempted to locate Davidson but were unsuccessful. Defendant Horton was taken to police headquarters by the officers, accompanied by Murphy and a girl named Muncie, who lived in Murphy's house. There, at the direction of the police officers, Murphy and the girl Muncie tasted the white powder in the small bottle found in the automobile at the time of defendant Horton's arrest and identified it as cocaine. On the witness stand Murphy testified that he had been using cocaine for a number of years and that he was able to distinguish it by taste.

At about 11 a. m. detective Sackett received a telephone call at police headquarters from someone he thought to be Frank Murphy, advising him that Ernest Davidson was at the Speedway hotel in Kalamazoo. The caller did not identify the number of the room, but indicated its physical location on the second floor. The room so described was room 10. Detectives Dykehouse, Sackett, and Gerlofs went immediately to the Speedway hotel. Detective Sackett inquired of a Florence Emerson, who was in charge of the hotel at the time, regarding the occupant of room 10, and she replied that a man was in the room but that she did not know his name as she had not registered him in. She was asked to awaken the occupant, whereupon she accompanied the officers to room 10 and knocked on the door. The person occupying the room asked who was there and was informed by Florence Emerson that it was the landlady and was told by detective Gerlofs that police officers were also there. The occupant of the room opened the door and was asked if he was Ernest Davidson. He admitted that he was, and was thereupon placed under arrest. At the time of his arrest defendant Davidson was clad only in his underclothing. He was asked if certain outer clothing in the room was his, and he replied that it was. A search of the clothing disclosed a marihuana cigarette. Upon searching the room, the officers found concealed between a sink and the wall four other marihuana cigarettes and two small envelopes containing cocaine.

The question presented by the motion to suppress the evidence and quash the indictment is whether or not the arrest of defendant Horton and defendant Davidson, and the searches conducted incident thereto, were unlawful in the light of the Fourth and Fifth Amendments of the Constitution of the United States. The government concedes that the arrests and searches here in question were conducted without warrants and with the active cooperation of city police officers and Federal narcotic agents. However, it claims that the arrests of defendants were lawful because the arresting officers had reasonable ground to believe that the defendants had committed a felony, and that since the arrests were lawful, the searches incident thereto were likewise lawful.

It is well settled that in a Federal prosecution, evidence of crime obtained through unlawful search and seizure by State officers, cooperating with Federal officials, may not be used against the victim of the unlawful search, where a timely challenge has been interposed. Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293, 52 A.L.R. 1381; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; United States v. Butler, 10 Cir., 156 F.2d 897; Lowrey v. United States, 8 Cir., 128 F.2d 477; Sutherland v. United States, 4 Cir., 92 F.2d 305; Fowler v. United States, 7 Cir., 62 F.2d 656.

The court will consider first the legality of the arrest without warrant of defendant Horton. In the absence of an applicable Federal statute, the validity of an arrest without warrant is determined by the law of the State where the arrest takes place. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210. Defendants were arrested in Michigan. Section 764.15 of the Michigan Compiled Laws of 1948 provides in part:

"Any peace officer may, without a warrant, arrest a person — * * *

"(c) When a felony in fact has been committed and he has reasonable cause to believe that such person has committed it;

"(d) When he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it."

In People v. Licavoli, 245 Mich. 202, 222 N.W. 102, the court said: "The rule is pretty well settled that if an officer believes, and has good reason to...

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8 cases
  • People v. Herrera
    • United States
    • Court of Appeal of Michigan — District of US
    • October 1, 1969
    ...was arrested was unreasonable. Defendant relies primarily upon Chapman and Johnson v. United States, Supra, and United States v. Horton (WD Mich. 1949), 86 F.Supp. 92. Chapman is inapplicable as it involves a warrantless search Not incident to a valid arrest. Johnson v. United States, Supra......
  • Giordenello v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 17, 1957
    ...v. United States, 95 U.S.App.D.C. 390, 222 F.2d 556, 557; Worthington v. United States, 6 Cir., 166 F.2d 557, 562; United States v. Horton, D.C.W.D.Mich., 86 F.Supp. 92, 97. 4 Appellant's first opportunity to apply for a bill of particulars came after his arrest and search had been 5 "Q. An......
  • Gilliam v. United States, 11205.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 1, 1951
    ...themselves, to warrant a man of reasonable caution in the belief that an offense had been, or was being, committed. See United States v. Horton, D.C.Mich., 86 F.Supp. 92. If the arresting officer does not even know who the person is, who gives the information, how can this information be co......
  • Hammitt v. Straley
    • United States
    • Michigan Supreme Court
    • December 29, 1953
    ...on their promptness in doing so, is a matter of common knowledge.' People v. Ward, 226 Mich. 45, 196 N.W. 971. In United States v. Horton, D.C.Mich., 86 F.Supp. 92, 96, in a case from the United States district court for the western district of Michigan, southern division, Judge Starr, in a......
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