United States v. Luster

• Decision Date: 24 March 1965
• Docket Number: No. 15945.,15945.
• Citation: 342 F.2d 763
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny Frank LUSTER and Eula Lee Warner, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

342 F.2d 763 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Danny Frank LUSTER and Eula Lee Warner, Defendants-Appellants.

No. 15945.

United States Court of Appeals Sixth Circuit.

March 24, 1965.

Henry Heading, Detroit, Mich., on the brief, for appellants.

Lawrence Gubow, U. S. Atty., Milton J. Trumbauer, Jr., Asst. U. S. Atty., Detroit, Mich., on the brief, for appellee.

Before WEICK, Chief Judge, and CECIL and O'SULLIVAN, Circuit Judges.

CECIL, Circuit Judge.

Danny Frank Luster and Eula Lee Warner, defendants-appellants herein, appeal from an order of the United States District Court for the Eastern District of Michigan, Southern Division, adjudging them guilty of count one of an indictment charging them with possession of approximately 2.1 grams of heroin in violation of Section 174, Title 21, U.S.C.

Prior to trial, counsel for the defendants, as they will be referred to here, moved to suppress the evidence obtained by the officers at the time of the arrests, on two grounds: 1. That the arresting officers did not have probable cause to believe that the defendants had committed a crime, or were committing a crime at the time they were arrested, and 2. That the arresting officers illegally entered the apartment thereby rendering the subsequent search unreasonable as well as illegal. This motion was denied by the trial judge.

The appeal is based solely on the denial of the motion to suppress the evidence. It is the theory of counsel that if the evidence is suppressed the case must fall. Counsel for the defendants, in his brief, poses three questions stated slightly different than the questions as framed in the motion to suppress. Issues cannot be raised on appeal that were not before the trial court. Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed. 2d 199; Turberville et al. v. United States, 112 U.S.App.D.C. 409, 303 F.2d 411, cert. den. 370 U.S. 946, 82 S.Ct. 1596, 8 L.Ed.2d 813; United States v. Doelker, 327 F.2d 343, C.A.6; Reeves v. Commissioner, 314 F.2d 438, C.A.6. Counsel briefs only his third question which presents the issue raised in the second question on the motion, the legality of the entry into the apartment of the defendant Luster. Counsel indicates that in discussing this one question he does not waive the right to discuss the other questions later. This Court cannot permit different questions on one appeal to be argued and briefed seriatim at different times.

We address ourselves to the questions presented to the trial court on the motion to suppress the evidence. There is virtually no dispute about the facts. On September 18, 1963, Federal Narcotics Agent Irvin received information from an informer, who had previously given him reliable information, that a man known as "Stinky" was in possession of heroin which the informer believed he could purchase. The informer was given money with which to make a purchase of heroin from "Stinky." Agent Irvin and fellow officers observed the informer enter an apartment building at 2208 John R. Street, in the City of Detroit, Michigan. (This was the building in which the apartment of defendant Luster was located.)

When the informer returned, he reported that "Stinky" would not sell him narcotics unless he used it on the premises in the presence of "Stinky." The informer also told Agent Irvin that a woman wearing a red dress came into the apartment while he was there and purchased four capsules of heroin which she injected into her arm in the presence of "Stinky." "Stinky's" girl friend (defendant Eula Lee Warner) assisted "Stinky" in making this sale. The informer saw "Stinky" put a medicine-type bottle containing approximately 100 red capsules of heroin in his bedroom. There was testimony that the officers saw a female with a red dress enter the apartment.

We agree with the trial judge that the facts as herein related constituted adequate information in the possession of the officers that the defendants had committed or were committing a crime at the time of the arrests. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.

Section 7607,¹ Title 26, U.S.C. authorizes agents of the Bureau of Narcotics to make arrests without a warrant for violations of any law of the United States relating to narcotic drugs, if the agents have reasonable grounds to believe that the person to be arrested has committed such a violation. The legality of arrests for federal offenses is to be determined by state law insofar as it is not violative of the Federal Constitution. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L.Ed.2d 726; Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332; 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. 322, 92 L.Ed. 210.

The applicable Michigan statute is Section 28.880 M.S.A., Comp.Laws 1948, § 764.21, and reads as follows:

"To make an arrest, a private person, if the offense be a felony committed in his presence, or a peace officer with a warrant or in cases of felony when authorized without a warrant, may break open and enter an outer door of any building in which the person to be arrested is or is reasonably believed to be, if, after he has announced his purpose, he is refused admittance."

At about 12:05 a. m., on the night of September 18th, after receiving the report of the informer, Agent Irvin and his fellow officers went to the apartment at 2208 John R. Street. The informer opened the back door of the apartment building for them and directed them to apartment 25. The informer had given the officers accurate descriptions of "Stinky" and his girl friend by which they were enabled to identify the defendants.

Upon approaching the door of the apartment, the officers could hear a conversation going on inside and activity within the apartment. Detective Anderson knocked and all activity stopped inside. Agent Irvin then knocked, and identified the officers as Federal Narcotic Bureau agents, and requested the door to be opened. A muffled scream from a female voice was heard from the inside and when there was no indication from the inside that the occupants would either answer or open the door, the officers forcibly entered. Upon entering the apartment, the officers placed "Stinky" and his girl friend under arrest. They were identified as the defendants.

Agent Swank seized a small amount of heroin from a table in the room in which the defendants were arrested. Agent Swank then went into the bedroom and took from a bureau drawer a plastic medicine-type bottle containing 61 red capsules of heroin. This is the evidence which was the subject of the motion to suppress.

The basic contention on this appeal is that the entry was illegal because the officers did not declare their purpose to make an arrest.

From the muffled scream on the inside when Agent Irvin identified the officers as Federal Narcotic Bureau Agents, and the failure to open the door on request, it is obvious that the occupants knew the purpose of their visitors. In a similar case we said: "It is a reasonable conclusion that a declaration of purpose...