United States v. James
Decision Date | 07 June 1967 |
Docket Number | 16876.,No. 16873,16873 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alice JAMES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles MOORE, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Edward F. Bell, Detroit, Mich., for appellant James.
Seth H. Barsky (Court-appointed), Detroit, Mich. (Caplan & Barsky, Detroit, Mich., on the brief), for appellant Moore.
Milton J. Trumbauer, Jr., Asst. U. S. Atty., Detroit, Mich. (Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief), for appellee.
Before WEICK, Chief Judge, PECK, Circuit Judge, and CECIL, Senior Circuit Judge.
Appellants, Alice James and Charles Moore, and seven others were charged in a thirteen-count indictment with conspiracy to violate the narcotics laws and with the substantive offenses of illegal possession and sale of narcotics. 21 U.S. C. §§ 173, 174 and 26 U.S.C. § 4705(a).
The jury disagreed as to Count I of the indictment which charged James with conspiracy, but found her guilty on Count VI which charged her with the substantive offense of possession of narcotics. She was sentenced to five years' imprisonment.
At the close of the Government's case, the Court directed a judgment of acquittal in favor of Moore on the conspiracy Count I, and Moore was found guilty by the jury on four counts (Counts VIII, IX, X and XI) which charged him with the substantive offenses of possession and sale of narcotics. He was sentenced to five years' imprisonment.
These appeals concern only Appellants James and Moore, and will be considered separately.
Appellant James' sole complaint is that the trial court erred in denying her motion to suppress the evidence of narcotics seized by federal narcotics agents in a search made without a search warrant, of the apartment in which she was living.
The pertinent facts relative to the search and seizure were not in dispute. They are set forth in Appellant's brief, as follows:
(Appellant James Brief, pp. 1-2)
In the Government's brief is the statement "Appellee accepts the Statement of Facts as set forth by Appellant."
It is the contention of the Government that the search was a reasonable one; that it was incident to a lawful arrest made upon a warrant issued from one to two days prior thereto; and that the narcotics agents had the right to search for and to seize the narcotics as they were contraband. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). In Rabinowitz, the Supreme Court said at page 63, 70 S.Ct. at page 434:
It is the contention of Appellant James that her arrest was a mere pretext for a general exploratory search of her home for narcotics. She relies on Go-Bart v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1931); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
Since the agents had ample time to secure a warrant for her arrest, they obviously had time to secure a search warrant to search her residence, but did not obtain one. The offense for which the arrest warrant was issued took place on June 3, 1963. The arrest was not made until September 26, 1963, on a warrant obtained only one or two days prior thereto. No explanation has been offered as to why the agents waited for more than three and one-half months after the offense had been committed, to obtain the arrest warrant. Appellant James had been living in the searched apartment with Sanders Mallory, Jr., since the middle of 1962. The agents had information that James and Mallory had been using their residence (first Tuxedo Street, then the apartment on Elmhurst Street) as their place of business for the distribution of narcotics, from the latter part of 1961 up until the date of the arrest.
The Government contends, however, that the only reliable information which it had was concerning violations which took place at the apartment on June 3, 1963 and July 9, 1963, and this information was too remote in time from September 26, 1963 to obtain a search warrant. But the fact is that the narcotics agents made no attempt to secure a search warrant. The testimony of Agent Miller was that the question of whether there was sufficient evidence to obtain a search warrant did not arise and he made no determination as to the need for it. District Supervisor Ellis testified that there was no discussion about obtaining a search warrant.
At the hearing on the motion to suppress, a question was raised as to the sufficiency of the complaint upon which the arrest warrant was issued. The Assistant United States Attorney conceded in open Court that for the purpose of the motion to suppress, the complaint was deficient. If the...
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