United States v. Williams

• Decision Date: 11 November 1965
• Docket Number: No. 16110.,16110.
• Citation: 351 F.2d 475
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wilbert WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

351 F.2d 475 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Wilbert WILLIAMS, Defendant-Appellant.

No. 16110.

United States Court of Appeals Sixth Circuit.

July 19, 1965.

Rehearing Denied November 11, 1965.

William H. Van Duzer (Court-appointed), Lansing, Mich., for appellant.

Joel M. Shere, Asst. U. S. Atty., Detroit, Mich. (Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief), for appellee.

Before MILLER and O'SULLIVAN, Circuit Judges, and PECK, District Judge.

JOHN W. PECK, Judge.

The first question raised on this appeal from defendant-appellant's conviction is concerned with the language appearing in a search warrant procured before arresting officers entered the premises in question. An examination of that warrant shows it to have been based on information received by the agent that appellant "kept a ready supply of heroin on hand in the his apartment." Appellant argues that the use of the past tense verb "kept" does not indicate a presently continuing circumstance and that an ambiguity existed under which it might not be clear that the affiant knew of heroin being in possession at the time of the issuance of the warrant. Appellant argues that under People of Michigan v. Wright, 367 Mich. 611, 116 N.W. 2d 786 (1962) the warrant was not properly issued. That case holds a warrant improperly issued which was based on an affidavit relating facts as they existed six days prior to its issuance.¹ However, to state that the warrant is invalid because of an ambiguity begs the question of ambiguity. We find none and agree with the conclusion of the trial judge who stated that the inclusion of the word "ready" caused the allegation to be one of "continuing possession." It is therefore here determined that the search warrant was not improperly issued.

A review of the facts is a necessary prelude to a consideration of the two remaining questions presented by this appeal. The record discloses that on the day of the search and arrest in question, four agents of the Federal Bureau of Narcotics, having in their possession the search warrant hereinabove discussed, and two members of the Detroit Police Department went to the apartment of the defendant described in the warrant. On arrival, they found the door to the apartment standing open, and one of the agents saw appellant sitting on a couch talking on the telephone. The officers then approached the apartment and observed that appellant made no acknowledgment of their presence until three of them had crossed the threshold, when they heard appellant say, "I will have to call you back. The police are here." At the moment he put down the phone, the officers stepped into the apartment, identified themselves to him, informed appellant that they had received a warrant to search the apartment, and showed it to him. An agent testified, "Even before we could finish our complete statement, he says, `No, that is alright,' he says, `I know who you are, go ahead and look around and do whatever you have to.'"

The record indicates that the agents then proceeded to search the apartment, finding paraphernalia used in the adulteration and preparation of heroin in the kitchen. However, the search was otherwise negative. An agent "padded appellant down and searched his pockets for weapons," as a customary part of a narcotics search, "for self-protection." The agent testified that he then asked appellant to enter the bathroom (two women who had been with defendant when the police arrived still being present), and that upon being asked to undress, appellant said, "`Well, you don't have to do that.' and he reached back and he says, `Here it is.'" Appellant thereupon handed one of the agents a wax paper envelope containing a white powder which analysis established to be heroin.

Both parties agree that the next question presented by this record may be stated as follows: "Was the narcotics agents' entry into the apartment though an open door without invitation and without announcing their purpose sufficient to support a valid search?" In contending for a negative response to that question, appellant argues the applicability of Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). However, in Miller the officers had neither an arrest nor a search warrant and physically broke open a chained door and in Ker they...