United States v. Lewis

• Citation: 227 F. Supp. 433
• Parties: UNITED STATES of America, v. Quessie Lee LEWIS, Defendant.
• Decision Date: 18 March 1964
• Court: U.S. District Court — Southern District of New York

227 F. Supp. 433

UNITED STATES of America, v. Quessie Lee LEWIS, Defendant.

United States District Court S. D. New York.

March 18, 1964.

Robert M. Morgenthau, U. S. Atty., for S. D. New York for the United States; Martin R. Gold, Asst. U. S. Atty., of counsel.

Henry K. Chapman, New York City, for defendant.

FREDERICK van PELT BRYAN, District Judge:

Defendant, Quessie Lee Lewis, was indicted for receiving, concealing and facilitating the transportation of narcotics in violation of 21 U.S.C. §§ 173, 174. She moves, pursuant to Rule 41(e), F.R.Cr.P., to suppress as evidence against her a quantity of heroin which was seized by narcotics agents during the course of what she alleges was an unlawful search of her apartment on March 16, 1962.

At the hearing before me on defendant's application a sharp conflict of testimony developed as to the facts concerning the discovery and seizure of the heroin sought to be suppressed, her arrest and the search of her apartment. I accept the testimony of Narcotics Agents Avant and Bowen as to what occurred and do not believe the testimony of defendant Lewis and her witness in so far as it conflicts with the testimony of the agents. I find the facts to be as follows:

Late in 1961 Agents Avant and Bowen obtained information that defendant and one Charles White were engaged in selling narcotics at the apartment occupied by defendant at 160 West 85th Street and at Arthur's Bar on 133rd Street and Eighth Avenue in Manhattan and commenced an investigation. In February of 1962 they received further information that defendant and White were expecting delivery of a large supply of heroin in early March. They then kept defendant and White under almost daily surveillance.

In the early evening of March 16, 1962 the agents had the apartment building at 160 West 85th Street under observation. Defendant occupied a four room apartment on the sixth and top floor of the building and White, from time to time, lived there also. While the lease was in the name of defendant's husband from whom she was separated, she paid the rent.

About 7:45 p. m. on the evening of that day, Avant and Bowen saw the defendant enter the apartment building. Five minutes later the agents followed her. Avant took up a position on the staircase between the 5th and 6th floors from which he could observe the hallway leading to defendant's apartment. Bowen proceeded to the roof of the building from which he could look down on the windows of the apartment which faced on a side alley and the rear yard. The agents did not have either a search or an arrest warrant.

At about 10:15 p. m. White got off the elevator on the sixth floor and approached the door of the apartment. He was carrying a cardboard carton and a paper bag. White put down the carton, took out keys and was about to put a key in the lock. At that point Avant appeared from the stairwell and approached him. White dropped the paper bag and attempted to get away. There was considerable commotion in the corridor. Avant grabbed White, pushed him against the wall and, after a scuffle, placed him under arrest and handcuffed him.

Defendant heard the disturbance in the hall and apparently had some idea of what was going on. She went to the bedroom window, leaned out, looked up and down the side alley and threw a package out of the window into the courtyard at the rear of the building.

Bowen, who was looking over the parapet on the roof, observed her do so in the light coming from the window. He immediately came down from the roof, passed Avant and White in the 6th floor corridor, went down in the elevator, retrieved the package from the courtyard and returned to the sixth floor.

In the meantime defendant opened the door of the apartment and asked what all the commotion was about. Avant identified himself, told her he had just arrested White who had been about to go into her apartment. She then asked him to come in.

As Avant was entering the apartment with White, Agent Bowen arrived from below with the black paper package which defendant had thrown into the courtyard and which he had retrieved and went into the apartment with them. In addition to defendant there were two other men and her sister there. Bowen opened the package, took from it a glassine envelope containing a white powder. The agents did a rapid field test on the powder which indicated that it was heroin. They then placed defendant under arrest and searched the apartment. No other narcotics were found.

Defendant, under indictment for the possession of the seized heroin, clearly has standing to make this motion to suppress, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). However, she has failed to establish grounds for suppression.

The package containing heroin was not found in defendant's apartment. She had thrown the package from the window even before she opened the door and, without demur, asked Agent Avant into her apartment. No threat of entry or search had been made by the agents before the defendant threw the package from the window. There is no suggestion in the evidence that the incident with White in the hallway was fomented by the agents for the purpose of alarming the defendant and thus gaining access to her apartment. She did so not because of any attempt or threat by the agents to search her apartment but because she had become alarmed by the disturbance in the hallway, was apprehensive of what might follow, and sought to rid herself of incriminating contraband. Then, secure in the knowledge that there were no narcotics in her apartment, she felt free to ask Agent Avant to come in, no doubt believing that if any search were made nothing could be found to involve her.

By that time, however, Agent Bowen had already recovered the package from the courtyard. The telltale glassine envelope in the recovered package containing a white powder indicated that the substance was heroin, particularly in the light of the agents' previous information and the suspicious circumstances which had just occurred. This was sufficiently confirmed by the field test which the agents conducted prior to the arrest. The agents then had ample probable cause for arresting defendant without a warrant.

The sole question here then is whether the agents obtained the information on which they arrested the defendant — that is to say, the package containing heroin — "from a place within the protection of the Fourth Amendment." Polk v. United States, 291 F.2d 230, 232 (9 Cir. 1961). We are concerned here not with the apartment itself but with the courtyard from which Agent Bowen recovered the package, and with the roof of the building from which Agent Bowen observed the defendant throw it out of her bedroom window.

Whether or not a search and seizure is unreasonable within the proscription of the Fourth Amendment must be ascertained from all of the surrounding facts and circumstances and each case must stand on its own facts. United States v. Rabinowitz, 339 U.S. 56, 65-66, 70 S.Ct. 430, 94 L.Ed. 653 (1950). The question posed is whether the officers in order to make the seizure, entered upon premises where their presence without a warrant was unreasonable and therefore constitutionally proscribed. Among factors bearing on this question are the nature and extent of the householder's interest in and the privacy of the areas into which the officers went in order to make the seizure, including proximity to the actual dwelling, whether it was within the curtilage of the occupants of the dwelling and whether it was in substance an adjunct to the domestic economy...