United States v. Merritt

• Decision Date: 12 July 1961
• Docket Number: No. 13436.,13436.
• Citation: 293 F.2d 742
• Parties: UNITED STATES of America v. Bernice MERRITT, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

293 F.2d 742 (1961)

UNITED STATES of America v. Bernice MERRITT, Appellant.

No. 13436.

United States Court of Appeals Third Circuit.

Submitted April 20, 1961.

Decided July 12, 1961.

Albert Martin, Pittsburgh, Pa., for appellant.

Hubert I. Teitelbaum, U. S. Atty., Daniel J. Snyder, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Before GOODRICH, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

Following a jury trial, defendant Bernice Merritt, was found guilty and sentenced¹ for violation of the narcotic law.²

She prosecutes this appeal on the ground that the evidence which established her guilt — possession of heroin — was obtained in an illegal search and seizure and that the District Court had erred in denying her motion to suppress the evidence, duly made prior to trial.

Critical to our disposition of this appeal are these facts:

On February 24, 1960, Federal Narcotics Agent Dillworth applied to a United States Commissioner for the issuance of a search and seizure warrant making affidavit at the time that he had reason to believe that defendant, a known narcotic violator who had made sales of narcotics on January 27th and 28th, 1960, had narcotics concealed in the apartment which she occupied on the second floor of 212 State Street, (rear), Clairton, Pennsylvania.

The Commissioner issued a search and seizure warrant which provided for its service and a search of defendant's apartment "in the daytime".

The District Court, in its Opinion³ denying defendant's motion to suppress made the factual finding that the warrant was not served "until 7:30 P.M. at night."⁴

The officers making the service,⁵ members of the Pittsburgh police force and local county officers, broke open the door of defendant's apartment and when they entered she threw a package out of the window. The package, which landed on the top of an automobile outside the house, was immediately recovered by the police and found to contain heroin. In a search of defendant's apartment made during the following hour and half the officers found additional heroin and needles and syringes, which defendant concedes she owned.

The District Court in its Opinion found that "the search warrant was legally invalid" because it was served at night and not during daytime as provided by its terms. It, however, denied the motion to suppress for these stated reasons:

"I am satisfied that the circumstances underlying the facts of this seizure bring it within one of the exceptions to the rule that a search must rest upon a search warrant.

"In short, it appears that Government officers approached petitioner\'s premises with the view to interrogation and investigation. The petitioner, in the act of throwing a quantity of heroin out of the window, in the view and presence of Government officers, voluntarily revealed the package of narcotics to the officers\' view which created the basis of a lawful arrest by the reasonable cause to believe that a felony was being committed in their presence. Jose Terrones Rios v. United States, No. 52, October Term 1959, decided June 27, 1960, officially unreported. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688

"I am fully satisfied that probable cause was amply shown in support of the search."

The defendant on this appeal⁶ urges that the District Court's fact-finding that the search warrant was not served until after nightfall and its "conclusion" that "the search warrant was legally invalid in view of the fact that the conduct of the searching officers was not within the authorization of the warrant" required the District Court to sustain her motion to suppress and that it erred in failing to do so.

The Government, in reply, makes these contentions: (1) the circumstance that the search warrant was served at night does not make it "illegal" because the Narcotic Control Act of 1956⁷ provides that "a search warrant may be served at any time of the day or night if the judge or the United States Commissioner issuing the warrant is satisfied that there is probable cause to believe that the grounds for the application exist", and (2) the seizure of the mooted evidence was "incidental to a lawful arrest" since the "officers approached the premises with a view to interrogation and investigation" and the defendant, "when she threw packages of heroin out of the window, in view and presence of Government officers, voluntarily revealed the narcotics to view which created the basis of a lawful arrest by reasonable cause to believe that a felony was being committed in their presence."

We need not dwell on the Government's first point for the simple reason that the search warrant by its specific terms provided for its execution "in the daytime" and that circumstance is conclusive; it makes irrelevant the fact that the United States Commissioner is empowered under the Narcotic Control Act to provide for its service "at any time of the day or night."⁸

The Government's second point, which was the premise of the District Court's denial of the motion to suppress, is utterly without merit.

The Government, as did the District Court, errs in its reliance on Rios v. United States, 1960, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688. That case affords no support for such reliance. In Rios, as two policemen approached a standing taxicab for the purpose of routine interrogation of its passengers one of them dropped a recognizable package of narcotics to the floor of the vehicle; the policemen were not in possession of an arrest or search warrant at the time they approached the taxicab nor did there exist, as they did so, "probable cause for an arrest". The Supreme Court held (364 U.S. at pages 261-262, 80 S.Ct. at page 1436):

"If, therefore, the arrest occurred when the officers took their positions at the doors of the taxicab, then nothing that happened thereafter could make that arrest lawful, or justify a search as its incident. * * * But the Government argues that the policemen approached the standing taxi only for the purpose of routine interrogation, and that they had no intent to detain the petitioner beyond the momentary requirements of such a mission. If the petitioner thereafter voluntarily revealed the package of narcotics to the officers\' view, a lawful arrest could then have been supported by their reasonable cause to believe that a felony was being committed in their presence. The validity of the search thus turns upon the narrow question of when the arrest occurred, and the answer to that question depends upon an evaluation of the conflicting testimony of those who were there that night." (Emphasis supplied.)

In the instant case the facts disclose that the officers did not enter defendant's bedroom "for the purpose of routine interrogation" but in the course of executing what they thought was a valid search and seizure warrant which had been issued by the United States Commissioner pursuant to an affidavit of a Federal Narcotics Agent (Dillworth) averring "there is probable cause to believe" that narcotics were being concealed by defendant in the premises authorized to be searched.

By analogy, there was here an invalid "arrest" when the officers illegally broke down the door of defendant's bedroom and entered it to make their search and "then nothing that happened thereafter the recovery of the package of heroin could make that arrest lawful or justify a search as its incident." Rios v. United States, supra.

The Government has cited two cases, Abel v. United States, 1960, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 and Hester v. United States, 1924, 265 U.S. 57, 58, 44 S.Ct. 445, 446, 68 L.Ed. 898 as validating the seizure of the heroin package thrown out of the window and permitting its admission as evidence of defendant's guilt.

The cases cited are inapposite on their facts. In Abel the Immigration and Naturalization Service officers arrested the defendant on an administrative warrant for deportation, searched the hotel room where he was arrested, his person and luggage, and seized certain articles. After defendant had checked out of his hotel room, an agent of the Federal Bureau of Investigation made a further search of the room, without a warrant, but with the consent of the hotel management, and seized certain articles which defendant had left there. On these facts it was held that the Government did not use the administrative warrant of the Immigration and Naturalization Service as an improper instrument of the Federal Bureau of Investigation in obtaining the challenged evidence, and the search, made by the FBI of the defendant's room after he had abandoned it, with the consent of the hotel management, was lawful and therefore the evidence then found was admissible.

In Hester the defendant, when an alarm was sounded of the nearby presence of revenue agents, took a jug of moonshine whiskey, "easily recognizable" as such, from within an automobile which was parked some distance from his home. While attempting to make a "get-away" he dropped the jug and it broke but some of its contents remained in it. The broken jug was seized by the revenue officers. Immediately prior to the sounding of the alarm the defendant came out of his home and handed a quart bottle to one Henderson. The revenue officers at the time were concealed about at a point from fifty to one hundred...