United States v. Pierce, Crim. A. No. 21114.

• Citation: 124 F. Supp. 264
• Decision Date: 11 August 1954
• Docket Number: Crim. A. No. 21114.
• Parties: UNITED STATES of America, Plaintiff, v. Jesse PIERCE, Defendant.
• Court: U.S. District Court — Northern District of Ohio

124 F. Supp. 264

UNITED STATES of America, Plaintiff, v. Jesse PIERCE, Defendant.

Crim. A. No. 21114.

United States District Court, N. D. Ohio, E. D.

August 11, 1954.

Sumner Canary, U. S. Atty., and Eben H. Cockley, Asst. U. S. Atty., Cleveland, Ohio, appeared for the United States.

Thaddeus C. Toudor, of Chicago, Ill., and Marc J. Wolpaw, of Cleveland, Ohio, appeared for defendant.

McNAMEE, District Judge.

In a trial to the court without a jury the defendant was convicted of the charge of making an unlawful purchase of ten ounces of heroin in violation of Title 26 U.S.C.A. § 2553. Police officers who searched the defendant's traveling bag without a warrant, found therein ten glassine envelopes each of which contained approximately one ounce of heroin. The search was made shortly after and incident to the arrest of the defendant without a warrant at about 5:45 a. m., November 5, 1953, in the Cleveland Union Terminal. The defendant was arrested upon his arrival by train from Chicago, Illinois as a result of information obtained by police officers and a Government narcotic agent through listening to telephone conversations between the defendant and an informer named Grant Washington.

In his motion for a new trial the defendant attacks the validity of the search, and renews the arguments made on the hearing of his motion to suppress the evidence and at the trial. As a statement of facts will disclose, the lawfulness of the arrest and the validity of the search cannot be seriously questioned, unless the testimony of the law-enforcement officers in respect of the telephone conversations heard by them was improperly received in evidence. The important issue raised by this motion is whether this testimony is prohibited by Section 605 of the Federal Communications Act, 47 U.S.C.A. § 605.

The essential facts are:

In the late afternoon of November 4, 1953 detectives of the Cleveland Police Department arrested Grant Washington and another person in whose room narcotic drugs were found. A slip of paper bearing a Chicago telephone number was found upon the person of Washington. He told the police officers that the 'phone number was that of a man then known to him only as Jesse, from whom on several occasions he had procured deliveries of heroin. Washington expressed his willingness to call Jesse by 'phone and order heroin and permit the police officers to listen to the conversation between them. The Cleveland Police Department had no funds with which to make long distance calls, and arrangements were made with the Federal Narcotics Bureau to have the call made by that agency. Washington was brought to the office of the Narcotics Bureau in the Federal Building, and at about 7:00 p. m. on November 4 he called Jesse's number in Chicago. In the conversation that followed, Washington told Jesse that he wanted ten pieces, meaning ten ounces, of heroin, and Jesse replied in substance that he would see what he could do and call Washington later that evening. Police officers Savage and Cobb listened to the telephone conversation between Washington and Jesse on two extensions of the connection over which Washington spoke, and a narcotic agent of the Government heard the conversation by placing his ear close to the receiver used by Washington. After this conversation was completed, Washington was taken to his home by Agent Fialkewicz and Officer Cobb, who remained there with him. About 11:00 o'clock that evening Washington made a second call to Jesse but was unable to reach him. However, a few minutes later the long distance operator connected him with Jesse. At that time Jesse told Washington that "he had made connections," that a cab was waiting outside his home and that he was leaving for Cleveland in about forty minutes. There was no extension 'phone in Washington's home, but both Officer Cobb and Agent Fialkewicz testified that by placing themselves in proximity to the receiver of Washington's 'phone, they heard the above statements made by Jesse. The officers then checked the schedules of all available means of transportation between Chicago and Cleveland and learned that a train due to arrive in Cleveland at 5:37 a. m. was leaving Chicago about forty minutes after the second telephone conversation above noted. Shortly before the arrival of the train, four narcotic agents and four police officers accompanied by Washington, went to the Cleveland Union Terminal. As Jesse came up the stairway from the train shed to the concourse of the station he was recognized by two of the officers as the man whom Washington had described. As Officer Savage stated, he matched Washington's description "perfectly." The defendant was stopped by the officers and, upon inquiry, he told them that his name was Jesse Pierce and that he came from Chicago. He was then asked for further identification through his draft registration card, which he exhibited to the officers. After showing this card, he was placed under arrest. Meanwhile Washington, who was some distance away from the arresting officers, pointed to the defendant as the man with whom he had talked over the telephone. The defendant was told to open his baggage, but he stated that he had left the keys in Chicago. The officers then took him to the Central Police Station and there one of the officers opened Pierce's traveling bag with one of the keys found in Pierce's possession. As indicated above, the ten ounces of heroin were found in the traveling bag.

In view of the cooperation of the state and federal officers and the prosecution of the defendant in this court, the legality of the search must be determined by the same principles that would be applicable if the arrest of the defendant and the search of his traveling bag had been made solely by federal agents.

It is fundamental that not every search and seizure made without a warrant is illegal. As the Supreme Court said in United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 94 L.Ed. 653:

"Yet no one questions the right, without a search warrant, to search the person after a valid arrest. The right to search the person incident to arrest always has been recognized in this country and in England. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652."

See also Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

State law determines the validity of arrests without warrant. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210. Revised Code of Ohio, Section 2935.04 provides:

"When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained."

Certainly the facts and circumstances within the knowledge of the officers were sufficient in themselves "to warrant a man of reasonable caution in the belief" that the defendant was guilty of a felony in the unlawful possession of narcotic drugs in violation of Section 3719.02 of the Revised Code of Ohio, and Section 2553 of Title 26 U.S.C.A. Indeed, the only fair and reasonable inference to be drawn from the defendant's appearance in the railroad station in Cleveland in the early morning of November 5, 1953 is that he was there to deliver narcotic drugs to the informer, as he indicated he would in the telephone conversations heard by the officers but a few hours before. There was abundant justification for the arrest of the defendant without a warrant. Nor can any question arise concerning the practicability of obtaining warrants for the arrest or search. It was not until about 11:00 p. m. on November 4 that the officers received definite information that the defendant was leaving Chicago for Cleveland to deliver the heroin. All other considerations apart, it appears clearly that it would have been impracticable if not impossible to obtain warrants between the hours of 11:00 at night and 5:00 a. m. the following day.

The argument that error was committed in the hearing on the motion to suppress in permitting the officers to give hearsay testimony relating to Washington's statements about his illegal dealings with the defendant merits only passing notice. It is well settled that hearsay testimony, coupled with testimony based on the officers' personal knowledge, may be received at hearings on motions to suppress evidence. United States v. Bianco, 3 Cir., 189 F.2d 716; United States v. Li Fat Tong, 2 Cir., 152 F.2d 650; Gilliam v. United States, 6 Cir., 189 F.2d 321. However, the issue whether the testimony of the officers relative to the telephone conversations heard by them is prohibited by Section 605, Title 47 U.S.C.A., merits more extended comment. The pertinent part of Section 605 reads:

"* * * and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; * * *."

Wire tapping and the divulgence of information obtained by such means is prohibited by the above quoted language of the statute. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314. See also Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298.

The Supreme Court has not passed upon the precise question here presented. But in United States v. Polakoff, 112 F.2d 888, 889, the Second Circuit Court of Appeals had before it facts that were essentially identical. There the prosecuting witness talked with the accused through a telephone in the office of the F.B.I. The conversations were recorded upon a machine attached to an existing extension in another room. As noted by the Court of Appeals in that case, the governing principles of law would have been the same if the conversations merely had been listened to instead...