United States v. Willis

• Decision Date: 04 October 1949
• Docket Number: Cr. No. 20779.
• Citation: 85 F. Supp. 745
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. WILLIS.

85 F. Supp. 745

UNITED STATES v. WILLIS.

Cr. No. 20779.

United States District Court S. D. California, Central Division.

September 1, 1949.

As Corrected October 4, 1949.

James M. Carter, United States Attorney, Herschel E. Champlin, Assistant U. S. Attorney, Robert J. Kelleher, Assistant U. S. Attorney, Los Angeles, Cal., for plaintiff United States of America.

Scott Weller, Los Angeles, Cal., for defendant Andrew Lee Willis.

WEINBERGER, District Judge.

At the conclusion of the trial, the Government counsel moved for dismissal of Count Two of the indictment. This count charged the defendant with having knowingly and unlawfully sold two grains of heroin after its unlawful importation. This motion is granted.

We are now only concerned therefore with Count One, wherein the defendant is charged on June 26, 1949, with knowingly and unlawfully receiving and concealing two grains of heroin after its illegal importation contrary to law.

In this case there seems to be no dispute as to these facts — that one Matthew Beard, an informer, over the phone and personally, arranged with the defendant to purchase from the defendant two capsules or two grains of heroin for the sum of $12.00 and to accomplish this purpose the informant delivered to the defendant currency of the United States consisting of a $10.00 and a $5.00 bill, which were furnished for that purpose by Federal Narcotic Agent Rual W. Bell. Before the delivery of the money to Beard the serial numbers of the bills were noted on a paper match book cover, the two police officers, Bell and Beard being present at said time.

The money and the match book cover are marked as Government Exhibit No. One for identification.

Following out the plan and arrangement, the money was delivered personally by the informer to the defendant who returned to the informer $3.00 as change. As per arrangement between informant and defendant, the defendant planned to deliver these capsules to the informant within a few moments after the payment of the money as previously outlined.

In carrying out said plan the defendant shortly thereafter was seen driving an auto which reached the curb at or near a street intersection where the informant was waiting for the delivery of the narcotics from defendant to the informant. As soon as said auto came to a stop the informant stepped off the curb approaching the auto, whereupon one of the police officers and Bell came to the auto, one on each side thereof, and the defendant was then told by them that they were officers and that he was under arrest.

The defendant then suddenly started the car, knocking down one of the officers, who then fired a shot into the left rear tire of the auto, thereby flattening the tire.

The auto then came to a sudden stop. The officers then arrested the defendant and the defendant's clothing was searched by the officers as was also the car which defendant was driving. No narcotics were found. However, one of the officers took the marked bills from him in the search.

During this episode one of the officers testified that he saw the defendant make a brushing motion with his right hand across his face and towards his mouth.

The defendant was taken in an auto by the officers to the Georgia Street Receiving Hospital, where a doctor and nurses who are employed by the Los Angeles Police Department, in the presence of, and at the request of the police officers, and with their assistance, administered to the defendant what is known as a "stomach pump treatment". Bell was also present during this treatment.

In this treatment, defendant was forcibly placed on a table, and his arms and legs were fastened to the table by straps, his jaws were forced open and a cotton pad roll about one-half inch thick was placed in his mouth between his teeth. His nostrils were held by someone so that he was forced to open his mouth, thereby permitting about ten inches of a rubber hose to be inserted down his throat and into the defendant's stomach.

An emetic liquid was poured through the hose into defendant's stomach, thus causing him to vomit and emit a cellophane wrapping containing what remained of two capsules, which were analyzed by a Government chemist as heroin, and which are marked as Government Exhibit Two for identification.

Before this treatment was administered the defendant was told to drink the liquid which was used in the treatment, which he refused to do. He was then also asked to voluntarily submit to this treatment, which he also refused to do.

When the defendant was brought into the hospital one of the officers told the doctor under whose direction the treatment was administered to the defendant that the defendant had swallowed two grains of heroin desired for evidence. The treatment then followed.

It is undisputed that Bell, the Federal Agent, participated in the entire episode and was present and participated in the entire proceedings from the inception of the plan to purchase the narcotics.

It is also undisputed that the officers had no warrant for defendant's arrest, nor any search warrant.

The defendant at no time during all of these proceedings made any admissions as to this offense.

The defendant, at the outset of the trial, moved to suppress the introduction of the evidence relative to the heroin procured from defendant's stomach, and during the trial objected to the introduction of Government Exhibits One and Two and also moved to strike certain of the evidence as to these exhibits.

Ruling on the motions and objections were reserved by the Court.

We hold that there was probable cause for the arrest of the defendant, and that the search which revealed the money and the match folder was reasonable within the meaning of the Fourth Amendment.

The circumstances surrounding the search which disclosed the narcotics are most unusual, and we can find only one instance in the reported cases where evidence procured from the stomach of the defendant was offered in a court of the United States. We can find, in no reported case, nor have we ever heard before, that an officer acting under the authority of the United States government, and sworn to uphold the Constitution, including the Fourth Amendment, has participated in a search such as this.

In the one reported case in the United States courts that of In re Guzzardi, D.C., 84 F.Supp. 294, the court there found that the federal officer had not participated in any manner in the search, but was called in after the evidence had been obtained, and also, that the defendant consented to the search.

In Re Ginsburg, 2 Cir., 147 F.2d 749, 750, it was said:

"It remains true, however, that each case of this kind is a fact case. The correct decision of each depends not so much upon a higher critical examination of the accumulated decisional gloss as upon a common sense determination of whether, within the meaning of the word the Constitution uses, the particular search and seizure has been `unreasonable,' that is, whether what was done and found bears a reasonable relation to the authority then possessed and exercised or transcends it to become oppression."

In United States v. Costner, 153 F.2d 23, the Circuit Court in its opinion at page 26, observed that it was beside the point to consider whether the officers had probable cause to make the search without a warrant, and stated:

"But assuming that they did, our question is, whether the officers under the circumstances of this case, in the excitement of the chase, consummated their...