United States v. Lee

• Citation: 83 F.2d 195
• Decision Date: 06 April 1936
• Docket Number: No. 336.,336.
• Parties: UNITED STATES v. LEE.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

83 F.2d 195 (1936)

UNITED STATES v. LEE.

No. 336.

Circuit Court of Appeals, Second Circuit.

April 6, 1936.

Maxwell Shapiro, of New York City (Asa S. Herzog, of New York City, of counsel), for appellant.

Lamar Hardy, U. S. Atty., of New York City (Robert E. Pratt, of New York City, of counsel), for the United States.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

The appellant was indicted August 2, 1935, on two counts; the first, charging him with unlawfully, willfully, knowingly, and fraudulently receiving, concealing, and facilitating the transportation of narcotic drugs, to wit, smoking opium, and, the second count, of receiving and concealing a quantity of Yen Shee, both in violation of title 21, § 174, of the United States Code (21 U.S.C.A. § 174). He moved, on September 25, 1935, that the seized opium be suppressed as evidence on the ground that it was obtained from his residence by government agents by reason of an unlawful search and seizure, in violation of the Fourth Amendment to the Constitution. The District Court denied the motion which was made upon affidavits only.

At the trial, the opium thus seized, was offered in evidence against appellant. The testimony in support of the government's case was that two narcotic agents, after receiving a telephone call, proceeded to the appellant's residence in an apartment house. While at the front door of the apartment, one put his face to the door and smelled the odor of opium. After waiting in front of the door for two minutes while his fellow officer went up on the roof to guard against any escape, he rang the bell and knocked at the door, which was opened by a Chinese boy whom he immediately took into custody. This agent, without the consent of the boy and without any search warrant, entered the rooms and proceeded to a point where he could see into the bedroom. There he saw an opium smoking outfit lying on a dresser. He then placed the boy under arrest, went through, and let his fellow agent in through a back window, and together they searched the apartment, which smelled strongly of opium. They found the opium and Yen Shee in question in a suitcase in a closet. They waited in the apartment, and later in the evening, when the appellant came home, upon his admission that the place was his home, they arrested him. All the seized narcotics were offered in evidence. Appellant denied ownership of the narcotics, claiming that they were left there by a friend, and said that on the day of his arrest he left the apartment at 8 a. m. and did not return until 6 p. m.

Objection was made to the receipt of the evidence obtained by the agents, but is was overruled, and an exception taken. There is no right to search a dwelling without a search warrant except as an incident to a lawful arrest, and seizures such as this have been consistently condemned as unlawful. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L. Ed. 652; Amos v. United States, 255 U. S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409. See, Carroll v. United States, 267 U.S. 132, 151, 153, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; cf. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Go-Bart Importing Co. v. United States, 282 U.S....