United States v. Polk
| Decision Date | 29 December 1961 |
| Docket Number | Crim. No. 37013. |
| Citation | 201 F. Supp. 555 |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. Jewel POLK, Defendant. |
Cecil F. Poole, U. S. Atty., William J. Cooney, Asst. U. S. Atty., San Francisco, Cal., for plaintiff.
Clark A. Barrett, San Francisco, Cal., for defendant
On April 25, 1960, defendant was convicted in this Court upon a one-count indictment charging him with the unlawful concealment of heroin in violation of 21 U.S.C.A. § 174. An appeal was taken from the judgment of conviction. The Court of Appeals, 9 Cir., 291 F.2d 230, found all of the specifications of error to be without merit, save one which asserted that certain evidence had been erroneously admitted because it had been secured by means of an unlawful search and seizure. It was the view of the Court of Appeals that the lawfulness of the procurement of this evidence depended upon the degree of privacy enjoyed by defendant at a place from which police officers observed behavior on his part which gave them reasonable grounds for placing him under arrest. Because of the record's paucity regarding the character of this place, the Court of Appeals vacated the judgment and remanded the cause to this Court with instructions to hold a hearing permitting the parties to offer evidence on this isolated issue. The Court of Appeals further instructed this Court to reach a decision on this issue and "in doing so to determine the ultimate question of whether the physical evidence introduced at trial was procured by reason of an illegal search and seizure."
Between the time of the filing of the mandate of the Court of Appeals with this Court on July 3, 1961 and the hearing held in accordance therewith, the trial judge died. At the hearing on the mandate, the parties stipulated that in disposing of the case in accordance with the directions of the Court of Appeals, the hearing judge should consider, in addition to the evidence offered at the hearing, all evidence previously in the record, including both that introduced at the trial and at a pre-trial hearing upon a motion to suppress.
The record shows that the night of defendant's arrest, January 3, 1960, police officers had under surveillance one Stanciell, who had been given $180.00 in marked currency by an informer to purchase narcotics. Upon receiving the money, Stanciell went immediately to defendant's residence, remained there some twenty minutes, and then proceeded to a place where he had agreed to meet the informer. As the police officers approached to arrest him, he was observed to put something in his mouth and swallow it. He refused to give any information to the officers, and neither the marked money nor any narcotics were found on his person.
The police officers then went to defendant's residence for the purpose of questioning him regarding the whereabouts of the marked money. Defendant resided in a flat which comprised the top floor of a three-story house on Pine Street in San Francisco. He shared the flat with a woman friend who owned the house. The second floor of the house was an independent flat occupied by a married couple and their three children. The ground floor was a garage. The two flats had adjacent glass-paneled front doors which opened off a common entrance porch. The door to the upper flat opened onto an inside staircase leading up to the flat. This door had a partially drawn shade. One of the officers rapped on this door and shouted Upon receiving no response, he directed the beam of a flashlight through the glass of the door below the shade and saw a man standing at the top of the stairs. Although the officer again identified himself, the man withdrew out of sight.
Two of the other officers then proceeded to the rear of the house via a passageway at the left between it and the adjacent house. This passageway is approximately 3½ feet wide and 63½ feet long. The second story of the house overhangs and covers this passageway for a distance of 12 feet midway along it. At the beginning of this overhang there is a solid board gate reaching completely across the passageway. The two officers found it slightly ajar, swung it open and went on through the passageway to the rear of the house.
At the point where the passageway opens into the rear yard there is an outside stairway with three landings. At the first landing there is a door opening into the lower flat and at the top landing there is a door opening into the upper flat. The middle landing is at a turn in the staircase a few feet below the level of the roof of the portion of the lower flat which overhangs the passageway. The two officers climbed the stairway to a point just above this middle landing, whereupon they observed defendant crouched on the roof of the overhanging portion of the lower flat and saw him throw a package on the roof of the adjacent house. The officers called to defendant to remain where he was. One of them then forced the rear door of the upper flat and went through it to the window from which defendant had climbed on the roof. He ordered defendant to climb back into the house and placed him under arrest.
The officer then observed the missing $180.00 in marked currency scattered on the roof of the overhang. From the roof of the adjacent house to which the defendant had been seen to throw a package, the officer recovered a cellophane-wrapped packet containing $1,400.00 in currency and several balloons filled with heroin. The discovery of this physical evidence, as well as the observation of defendant's behavior on the roof which gave reasonable grounds for his arrest, all resulted from the action of the police officers in proceeding to the rear staircase leading to defendant's flat. Thus, in the view of the Court of Appeals, the pivotal question is whether the police officers impinged upon defendant's constitutionally guaranteed freedom from unreasonable searches by going into the enclosed rear yard and climbing the staircase.
In commenting on this question and the record then before it, the Court of Appeals said:
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People v. Willard
...action was not an unreasonable invasion of the privacy of the defendants' (p. 500, 44 Cal.Rptr. p. 506) citing United States v. Polk (D.C.N.D.Cal.1961) 201 F.Supp. 555, affirmed 314 F.2d 837, and California v. Hurst, supra, 325 F.2d 891, 899, the latter case being relied upon by defendant h......
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...were able to see into the house, their action was not an unreasonable invasion of the privacy of the defendants. (See United States v. Polk, D.C., 201 F.Supp. 555, aff'd 9 Cir., 314 F.2d 837; see also People of State of California v. Hurst, 9 Cir., 325 F.2d 891, Since the observations of th......
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