United States v. Johnson

• Decision Date: 14 February 1973
• Docket Number: No. 71-1715.,71-1715.
• Citation: 475 F.2d 977
• Parties: UNITED STATES of America, Appellant, v. Gwendolyn E. JOHNSON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

475 F.2d 977 (1973)

UNITED STATES of America, Appellant, v. Gwendolyn E. JOHNSON.

No. 71-1715.

United States Court of Appeals, District of Columbia Circuit.

Argued June 7, 1972.

Decided February 14, 1973.

As Amended May 11, 1973.

James A. Adams, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and Brian W. Shaughnessy, Asst. U. S. Attys., were on the brief, for appellant.

Edwin C. Brown, Alexandria, Va., for appellee.

Before BAZELON, Chief Judge, and McGOWAN and TAMM, Circuit Judges.

McGOWAN, Circuit Judge:

The issue raised by the Government's appeal in this prosecution for federal narcotics offenses, 26 U.S.C. § 4704(a) and 21 U.S.C. § 174, is the correctness of the trial court's pretrial suppression of evidence of narcotics found in appellee's purse. We hold that the order granting appellee's motion to suppress was in error; and we reverse.

I

On or about January 5, 1971, members of the Narcotics Branch of the Metropolitan Police Department obtained a warrant authorizing a search for narcotics of the entire apartment of one James L. Stewart, subsequently indicted as a codefendant with appellee. The warrant was issued upon an affidavit which recited that within the preceding two weeks information had come to the police from a reliable informant that narcotics were being sold in Stewart's apartment, and that on January 5 an agent of the Department had purchased narcotics at that apartment. In the early morning of January 6, approximately seven members of the Department gained access to Stewart's apartment building and, leaving some of their party outside, proceeded to his apartment, knocked, and announced their identity and purpose. The officers waited nearly a minute, then heard a noise within the apartment followed by the sound of a window breaking, whereupon they forced the door open.

The first officers to gain entry observed Stewart apparently attempting to escape from the apartment through the bedroom window. He was apprehended, and, after the bedroom search revealed narcotics, was arrested. Other officers had entered the living room, where appellee was found sitting on the couch. A purse, which was on a coffee table in front of the couch, was immediately searched, yielding narcotics, and appellee was placed under arrest. Before entering Stewart's apartment, the police detail had been advised that appellee was a visitor on the premises.

The District Court granted appellee's motion on the ground, as stated by it on the record, that the search of the purse preceded her formal arrest, and therefore could not be sustained as incident thereto. Since, in ruling on her motion, the trial judge assumed probable cause existed to arrest appellee prior to the search of her purse, we need not inquire into its existence even though the crime for which he believed she could be arrested is unclear.¹ Neither do we find it necessary to pursue the question of whether the formal placing under arrest of a criminal suspect is invariably a condition precedent to a lawful search incident to an arrest, although we note the trial judge's view is at variance with the decisions in this circuit.² What we do find is that, in the circumstances disclosed by this record, the search of appellee's purse was lawful as having been within the scope of the warrant to search the premises.

II

The prohibition of the Fourth Amendment is against "unreasonable" searches and seizures. In determining whether under the circumstances of this case the search of appellee's purse violated that standard, the protection of individual privacy embodied in the Fourth Amendment must be weighed against the public interest in effective law enforcement with respect to narcotics violations. The specific question for resolution is whether the scope of the search warrant embraced an object in the apparent possession of a person not an occupant of the premises searched. Although the District Court did not expressly consider this issue, its suppression of the evidence contained the implicit holding that appellee's purse fell without the warrant.

Turning first to the privacy element of the question, we note that the search was of a purse resting separately from the person of its owner. As such, it was not being "worn" by appellee and thus did not constitute an extension of her person so as to make the search one of her person. United States v. Teller, 397 F.2d 494 (7th Cir. 1968); United States v. Riccitelli, 259 F.Supp. 665 (D. Conn.1966). The invasion of appellee's privacy was therefore of a lesser degree than if she had been subjected to a search of her clothing or of objects being held by her.

On the Government's side of the balance lies both the information presented in the affidavit supporting the warrant, indicating that Stewart's apartment was a place where narcotics were sold as well as stored; and the delay, the suspicious noises that preceded the executing officers' entry into the apartment, and the apparent effort of Stewart to escape through the bedroom window, all suggesting attempts to thwart discovery of the illegal activity that the police suspected was being carried out on the premises. With emphasis on the limited nature of the circumstances presented, we hold that the search of appellee's purse was consistent with the demands of the Fourth Amendment. Under these facts, the police could reasonably have believed that items sought and described in the warrant had been concealed in the purse,³ and, notwithstanding appellee's status as a visitor on the premises, could have searched the purse in pursuit of items for which the warrant issued.⁴

In Walker v. United States, 117 U.S.App.D.C. 151, 327 F.2d 597, 600 (1963), cert. denied, 377 U.S. 956, 84 S. Ct. 1635, 12 L.Ed.2d 500 (1964), this court permitted the search of a wallet and bag held by one who shared occupancy of the residence searched under authority of a warrant, holding that a contrary result "would be to suggest that a warrant to search premises may be frustrated by the device of simply picking up the guilty object and holding it in one's hand." Similarly here, frustration of the warrant's purpose should not be permitted where the facts reveal that to be the likely result were the purse not searched. See Clay v. United States, 246 F.2d 298, 304 (5th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957); Nicks v. United States, 273 A.2d 256 (D.C.Ct.App.1971); and dictum in United States v. Festa, 192 F.Supp. 160, 163 (D.Mass.1960) (Wyzanski, J.); State v. Wise, 284 A.2d 292, 294 (Del.Sup.Ct.1971).⁵

Accordingly, we reverse the District Court's order of suppression, and remand the case for trial.

It is so ordered.

BAZELON, Chief Judge, concurring in part and dissenting in part:

I agree that this suppression order cannot be sustained on the record before us. I do not agree, however, that this record supports a holding that the evidence was admissible. I would instead hold that the search of Mrs. Johnson's purse was not authorized by the search warrant, and would remand for a determination whether the police had probable cause to arrest Mrs. Johnson when they initiated the search of her purse.

The majority says that "The specific question for resolution is whether the scope of the search warrant embraced an object in the apparent possession of a person not an occupant of the premises searched." Answering that question in the affirmative, the court rules the contents of the purse admissible and reverses the trial court.

In my view, the principle the majority applies would be applicable only if Mrs. Johnson had not been in apparent possession of her purse. But she was. Moreover, the police arrested her for possession of the contraband immediately after discovering it and without verifying ownership of the purse. I think that these facts sufficiently establish that the police knew that they were invading Mrs. Johnson's "reasonable expectations of privacy."¹ The search of the purse was thus not directed at the owner and occupant of the apartment, but at Mrs. Johnson.

The warrant, however, authorized the search of an apartment that was, in the words of the supporting affidavit, "occupied by John Doe alias Pete described as a Negro male, 49-50 yrs. 165 lbs., 5'6", Medium Complexion." I do not doubt that this authorized the search of "Pete" as well as his apartment.² But the warrant did not authorize a search of an individual the police knew to be a mere visitor in the apartment.

Nor, in my view, did the affidavit contain sufficient information to justify the issuance of such a warrant. The Supreme Court has told us that "the Fourth Amendment protects people, not places."³ One does not give up that protection by simply entering the private residence of another.⁴ Giving effect to this personal guarantee may make the drawing of lines difficult, but we must make the attempt.

I would hold that a warrant to search individuals who are not occupants of an apartment may issue only if the police establish probable cause to believe either that any individual found in the apartment possessed seizable material, or that certain identified individuals possessed seizable materials. The former might be established, to give one example, by a showing that the apartment was a "shooting gallery," that is, a place used exclusively for the injection of narcotics.

But this warrant did not contain information from which one might reasonably infer that any non-occupant discovered in the apartment was subject to search. The incorporated affidavit recited only (1) that a reliable informant had reported that "Pete" "was selling illicit narcotic drugs within" the apartment, (2) that the informant "had purchased" such drugs in the past, and (3) that the officers had taken the informant to the premises, sent him in, and the informant had returned with narcotics. Probable cause to believe than any non-occupant found in the apartment...