United States v. Scotti

• Decision Date: 25 October 1950
• Docket Number: Crim. A. No. 3558.
• Parties: UNITED STATES v. SCOTTI.
• Court: U.S. District Court — Southern District of Texas

102 F. Supp. 747

UNITED STATES v. SCOTTI.

Crim. A. No. 3558.

United States District Court S. D. Texas, Corpus Christi Division.

October 25, 1950.

Brian S. Odem, U. S. Dist. Atty., John C. Snodgrass, Asst. U. S. Dist. Atty., Houston, Tex., for plaintiff.

Scott & Dancer, Corpus Christi, Tex., for defendant.

ALLRED, District Judge.

Defendant, charged with unlawful acquisition of marihuana in violation of 26 U.S.C. § 2593(a), waived trial by jury. Seasonable motion was made to suppress evidence obtained by Corpus Christi city officers, upon which the case depends. This motion was carried along with trial of the case upon the merits.

On August 1, 1949, two Corpus Christi city officers, acting pursuant to a purported search warrant issued by a justice of the Peace, called at the residence of defendant for the purpose of making a search.¹ No one was about the premises when the officers arrived and they started back to town. En route they saw defendant and his wife in an automobile with two other people. Defendant stopped his car to let the other people alight.

The officers drove up and asked if this was "Scotti." Upon an affirmative reply the officers ordered defendant out of the car and searched it. They then told him that they wanted to search his home, Scotti told them that it was perfectly all right; that they didn't need a search warrant to search his home at any time. They ordered him into their car and drove to his home. One of the officers says that he told defendant on the way that he had a search warrant and that this was after he had told him it was all right to search the car. The other officer states that they told defendant of the search warrant before the alleged consent.

The officers searched the house and found a small quantity of marihuana, wadded in a newspaper among other papers, in a woven Mexican basket hanging on the wall. Defendant told the officers that he hated to go back to prison; that he had a considerable sum of money in his wife's name; and that "we ought to be able to work out a deal between us."

At the time of the trial, I expressed the opinion from the bench that defendant had consented to the search. Upon consideration of the authorities, however, I have concluded that the consent was not voluntary. Ray v. United States, 5 Cir., 84 F.2d 654; United States v. Asendio, 3 Cir., 171 F.2d 122; United States v. Rembert, D.C.Tex., 284 F. 996; but Cf. Cantrell v. U. S. (Hunnicutt v. U. S.), 5 Cir., 15 F.2d 953.

Defendant's motion to suppress the evidence alleges that the Corpus Christi city officers were working in co-operation with federal narcotic officers, pursuant to an understanding and practice of several years' duration, whereby immediately after arrest of persons charged with marihuana by the city officers they would be and were immediately turned over to the federal officers for prosecution. Texas laws prohibit traffic in marihuana, the minimum punishment for such felony being two years imprisonment. Art. 725b, Vernon's Texas Penal Code.

Both state and federal officers vigorously denied any agreement or understanding. The record shows that City police make many arrests for various offenses, many being for suspected traffic in marihuana. Arrests for other offenses, or for "investigation," often result in the finding of marihuana. In most cases the evidence is insufficient for the filing of charges in any Court. However, the record shows that in a little over two years city officers turned over to federal officers at least twenty marihuana cases upon which complaints were filed with the United States Commissioner, showing the arresting officers as city officers. On the other hand, in a little more than four years (including the two-year period in question) city officers only filed a total of eight marihuana cases in the state court.²

One city officer testified that, while he had no understanding or agreement with federal officers, the practice at the city police station was to call the federal narcotic agents after arrests by the officers, in "big" cases, for prosecution in the federal court. Two others testified that sometimes they felt that the minimum two-year punishment (under state law) was too severe in a particular case and, in those cases, the federal officers were asked to take the case because of the greater latitude of permissible punishment.

Oklahoma W. Johnson, Narcotic Agent from the San Antonio office, testified that three narcotic officers were available in the vast district in south and southwest Texas; that he had adopted a number of cases made by the city officers during the past few years; that he had no agreement but that he had told the local officers to call him at any time and that he would look over any cases they might submit and then determine whether he would file federal charges. All the calls from Corpus Christi to Johnson seem to have been made by Capt. Matthews, chief of Corpus Christi detectives, who was seriously ill at the time of the trial and unable to testify.

On the morning after defendant's arrest, Johnson was called by Matthews. He came immediately to Corpus Christi. Upon arrival, the city officers turned over to him the defendant Scotti and one other case in which they had made an arrest for marihuana. Both were immediately adopted by Johnson and charges filed before the United States Commissioner.

I find, therefore, that there was a practice on the part of the Corpus Christi city officers to call the federal narcotic officers frequently, (but not always) when people arrested by the City officers were found to be in possession of marihuana; and that the federal officers frequently, but not always, "adopted" the cases for federal prosecution. I further find, however, that before and at the time of making the arrests and seizures, the city officers were engaged in enforcement of the state marihuana law, and were not acting solely for the purpose of aiding in enforcement of federal law. There is no showing that the federal officers had knowledge, before or after, of the illegality of any arrest or seizure; and there is no showing that there was any irregularity in any arrest or seizure, other than the one involved in this case and its companion, United States v. John Walker, No. 3561.

At common law, evidence, however obtained, was admissible. Even after adoption of the Fourth Amendment to the Constitution, the Supreme Court uniformly held, that the federal government may avail itself of evidence improperly seized by state officers operating entirely upon their own account. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520. It is settled that "these Amendments protect only against invasion of civil liberties by the Government whose conduct they alone limit." Feldman v. United States, 322 U.S. 487, 490, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408.

In Byars v. United States, supra 273 U.S. 28, 47 S.Ct. 250, a state officer, acting under a state warrant to search for liquors, invited a federal officer to accompany him. The search resulted in the seizure of liquor by the state officers and of certain counterfeit stamps by the federal officer. The search warrant was clearly invalid under federal law. The Court, in a federal prosecution for possession of the counterfeit stamps, suppressed the evidence because of the "participation" of the federal agent, saying: "We do not question the right of the federal government to avail itself of evidence improperly seized by state officers operating entirely upon their own account. But the rule is otherwise when the federal government itself, through its agents acting as such, participates in the wrongful search and seizure." (Emphasis supplied.)

What constitutes "participation?" As pointed out in Byars v. United States, supra, the federal agent responded to the invitation, and actively "participated" in the search and seizure. The "participation" doctrine was extended to "co-operation" in Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 138, 72 L.Ed. 293. There, New York State troopers searched an automobile without a warrant, and without probable cause, and seized intoxicating liquors. The prisoners and property seized were immediately turned over to federal officers for prosecution in the federal courts. The New York State Liquor Law had been repealed and there was no duty imposed upon state officers, either by state or federal law, to enforce the National Prohibition Act, 27 U.S.C.A. § 1 et seq.; although the Governor of New York had declared that all state officers were required to aid in the enforcement of the federal law and such aid was accepted and acted on by federal officials. The Court says: "Evidence obtained through wrongful search and seizure by state officers who are co-operating with federal officials must be excluded." See Flagg v. United States, 2 Cir., 233 F. 481, 483, approved in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319. (Emphasis supplied.)⁴

The Supreme Court held, however, that the State troopers were not agents of the United States and that the question to be decided was whether their relation to the federal prosecution was such as to require the exclusion of the evidence unlawfully obtained. The Court points out that there was no suggestion that the defendants were committing or had committed any state offense or that the troopers believed that they had; that no attempt was made to establish that the particular search was made in "co-operation with federal officials;" but that the state troopers believed that they were required by law to aid in enforcing the National Prohibition Act; "and that they made this arrest, search, and seizure, in the performance of that supposed duty, solely for the purpose of aiding in the federal prosecution"; that immediately after the arrest and seizure the defendants and the evidence were turned over to the federal officers.

In distinguishing earlier decisions (holding that...