United States v. Sam Chin

• Decision Date: 19 July 1938
• Docket Number: No. 18440,18441.,18440
• Citation: 24 F. Supp. 14
• Parties: UNITED STATES v. SAM CHIN et al. SAME v. LEE HING et al.
• Court: U.S. District Court — District of Maryland

24 F. Supp. 14

UNITED STATES v. SAM CHIN et al.

SAME v. LEE HING et al.

Nos. 18440, 18441.

District Court, D. Maryland.

July 19, 1938.

Bernard J. Flynn, U. S. Atty., and T. Barton Harrington, Asst. U. S. Atty., both of Baltimore, Md.

Milton H. Talkin, William Curran, and Paul B. Mules, all of Baltimore, Md., for defendants in No. 18440.

William Curran and Paul B. Mules, both of Baltimore, Md., for defendants in No. 18441.

CHESNUT, District Judge.

These two cases present quite similar questions of law and fact; they were argued together and may conveniently be decided in one opinion.

The defendants in the several above entitled cases have all been indicted under Title 21, section 174 of the United States Code, 21 U.S.C.A. § 174, for feloniously, wilfully, fraudulently and knowingly receiving and concealing, etc., substantial quantities of smoking opium illegally imported into the United States. In each case the defendants have moved to suppress certain evidence alleged to have been obtained against them by an unlawful search and seizure in the premises occupied by them as their respective dwellings. The indictments were filed on April 20, 1937, and the motions to suppress were not filed until July 1, 1938, when the cases were first assigned for trial. This is seemingly not a timely application (Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Segurola v. United States, 275 U.S. 106, 112, 48 S.Ct. 77, 79, 72 L.Ed. 186; Rocchia v. United States, 9 Cir., 78 F.2d 966, 970; Brink v. United States, 6 Cir., 60 F.2d 231, 234); and the motions might properly be overruled for that reason, but as the matter has been fully argued upon the merits, and it does not appear that the Government has been prejudiced by the delay in the case, and as the same point would likely arise upon the Government's evidence at the trial, the motions will be considered on their merits. Gouled v. United States, 255 U.S. 298, 312, 41 S.Ct. 261, 266, 65 L.Ed. 647.

In support of the motions counsel for the defendants rest their cases solely upon the testimony of the arresting officers. They have submitted no other testimony. The facts briefly stated are as follows: Some time prior to March 22, 1937, local inspectors of the Federal Bureau of Narcotics had reason to suspect or believe that opium was being smoked in the premises 211 W. Mulberry Street in Baltimore City. On that night Inspectors Clarke and Lanigan, together with Lt. Bradley of the Baltimore Detective Bureau, went to the premises and, while on the sidewalk of the street, through an open door clearly and plainly detected the smell of burning opium emanating therefrom. The testimony is convincing and uncontradicted that burning opium has a smell that is peculiar and unique to itself and once perceived cannot be forgotten. The officers were experienced and knew at once from the odor that it was certainly burning opium. The building is an ordinary three or four story house in the middle of a block with a store front on the ground floor and separate entrance by door and stairway to the upper floors which were occupied by various tenants. The atmosphere at the time was noticeably damp after a recent rain and there was testimony to the effect that under such atmospheric conditions opium smoke will descend in the air. The officers had also observed two Chinamen going in and one coming out of the house. As they entered through the open doorway and ascended the stairway, the odor became more distinct and finally led them to a third floor room where the fumes of burning opium were evidently emerging through a partially open door into the hallway. Through the opening Lt. Bradley could see on the mantlepiece several "toys" or cans of opium, a pipe stem and a metal case. The officers pushed the door further open and entered the room and there found Lee Pay and Sam Chin lying on their sides with an opium pipe between them, which was hot and evidently had just been smoked. The arrests were then made and a certain quantity of opium and smoking paraphernalia thereafter seized.

As Inspector Clarke was leaving the building he paused on the landing of the second floor and on looking out of a rear window observed in a rear room of an opposite building, which fronted on the next parallel street, the silhouette of what quite clearly appeared to be a man smoking an opium pipe, which has a distinctive form and shape, with a long stem and bowl somewhat like a door knob. Thereupon the officers proceeded through certain connecting back alleyways to the rear of the latter premises and there on the outside of the building again detected the unmistakable odor of burning opium which they followed through an open door to the floor where they had observed the silhouette and found the room equipped with bunks as an opium smoking den, and some of the defendants smoking opium. They then and there arrested the defendants, Lee Hing, Lee Fook Young and Chin Jen, and seized the opium and smoking paraphernalia which is now sought to be suppressed as evidence. One of the men arrested gave Lt. Bradley $200, apparently as an attempted bribe to halt prosecution. It has been retained as evidence in the case.

Although the testimony is not very explicit on the point it may be assumed that the premises in which the arrests and seizures were made constituted the dwelling or places of abode of one or more of the defendants in the respective cases. The contention in support of the motions is that, as the officers did not have a search warrant in either case, the searches and seizures were not justified under the 4th Amendment, U. S.C.A.Const.Amend. 4. This is undoubtedly the well established law in the federal courts unless the search and seizure were incidental to a lawful arrest in the cases respectively. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426; Taylor v. United States, 286 U.S. 1, 52 S. Ct. 466, 76 L.Ed. 951; Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159.

The 4th Amendment is a fundamental constitutional bulwark which protects the individual against unlawful and oppressive administrative action in unreasonable searches and seizures of personal effects, and is to be liberally applied to promote the great objects which it was designed to accomplish. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775; Go-Bart Importing Co. v. United States, 282 U.S. 344, 356, 51 S.Ct. 153, 157, 75 L.Ed. 374. It has been given effect in this court in cases where the circumstances made it applicable. United States v. Goodhues, D.C., 53 F.2d 696; United States v. Ruffner, D.C., 51 F. 2d 579. It is not necessary for the reasonable protection of the individual to press the amendment to the extent of suppressing evidences of crime seized by an officer of the law incident to his arrest of an offender for a crime committed in his presence (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790); but the arrest when so made must in good faith have been the primary object of the officer and not a mere pretext for the search and seizure. Henderson v. United States, 4 Cir., 12 F.2d 528, 51 A.L.R. 420; Brown v. United States, 3 Cir., 83 F.2d 383; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775. Each case must be determined on its own particular facts and circumstances. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374; Pong Ying v. United States, 3 Cir., 66 F.2d 67, 68; Papani v. United States, 9 Cir., 84 F.2d 160.

The controlling question in the case is whether on the facts the officers in good faith made the arrest on probable cause, for a crime which they believed was being committed in their presence. The offense is classed as a felony under the federal law, 18 U.S.C. § 541, 18 U.S.C.A. § 541. It is well settled that an officer with power to arrest in proper cases may lawfully make an arrest without a warrant for a misdemeanor committed in his presence, constituting a breach of the peace, and for a felony, even if not committed in his presence, if he acts on such reasonable circumstances as constitute "probable cause". Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Bess v. United States, 4 Cir., 49 F.2d 884; Papani v. United States, supra; United States v. Murray, D.C.Md., 51 F.2d 516, 518; Baltimore & O. R. Co. v. Cain, 81 Md. 87, 100, 31 A. 801, 28 L.R.A. 688; Heyward v. State, 161 Md. 685, 692, 158 A. 897; 6 C.J.S., Arrest, pages 584-599, § 6. If the arrest was lawful the officers were undoubtedly justified in seizing the contraband articles which were an incident to the crime for which the arrests were made. In fact, no search in the strict sense of the term was made because the articles seized were apparently in plain view of the officers at the time the arrests were made. See Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231; United States v. Lefkowitz, 285 U.S. 452, 462, 52 S.Ct. 420, 422, 76 L.Ed. 877, 82 A. L.R. 775.

There is no reasonable doubt on the facts presently being considered that a crime was actually being committed, both under the federal and state law. There was certainly clear evidence that the defendants or some of them, in both cases, were smoking opium at the time of the arrest or immediately prior thereto; and necessarily they had possession of, and in the statutory sense were concealing opium. Under the Federal Food and Drug Act (21 U.S.C. §§ 171, 173, 174, 175, 21 U.S.C.A. §§ 171, 173, 174, 175) the importation into the United States of smoking opium is...