Worthington v. United States

• Decision Date: 13 February 1948
• Docket Number: No. 10288.,10288.
• Citation: 166 F.2d 557
• Parties: WORTHINGTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

166 F.2d 557 (1948)

WORTHINGTON v. UNITED STATES.

No. 10288.

Circuit Court of Appeals, Sixth Circuit.

February 13, 1948.

Walter Martin, of Saginaw, Mich. (Walter Martin, of Saginaw, Mich., of counsel; Harvey E. Van Benschoten, of Saginaw, Mich., on the brief), for appellant.

Janet E. Kinnane, of Bay City, Mich., (John C. Lehr, of Detroit, Mich., and Janet E. Kinnane, of Bay City, Mich., on the brief), for appellee.

Before MARTIN, McALLISTER, and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

On February 25, 1946, about 8:00 at night, four officers drove up to the home of Belle Worthington, appellant, in the city of Saginaw, Michigan. Two of the officers, in plain clothes, were members of the Federal Bureau of Narcotics; the other two were uniformed members of the Saginaw Police Department. They knocked at the front door, and when appellant opened it, one of the officers placed her under arrest. They ordered her to sit in a chair in the living room, and, during the next four hours, they ransacked the house, going through every room and searching all of appellant's articles of apparel, suitcases, trunks, beds, and other furniture.

About midnight, they came upon a small bottle on her bedroom dresser holding six capsules and five tablets. The capsules contained 18.51 grains of codein sulphate, a derivative of opium; the tablets contained no narcotic drugs. Later, the officers found six vials in a small black purse on a shelf of groceries in a storeroom. Each vial contained 20 tablets and each tablet consisted of lactose and ¼ grain of morphine sulphate, a derivative of opium. They then secured her car keys from her and searched her automobile which was parked in front of her house. There they found a bottle in the glove compartment which contained a solution of morphine. The officers at no time had any warrant for the arrest of appellant, or any warrant to search her home.

Appellant was indicted on three counts, based upon each of the substances found in the search, and charging that she had unlawfully purchased the said derivatives of opium, "not being in or from the original stamped package and not having on them the appropriate taxpaid United States Internal Revenue Stamps as required by Section 2553(a) of the Internal Revenue Code." Title 26 U.S.C.A. Int.Rev.Code, § 2553. It may be observed that unexplained possession of narcotics justifies a charge of unlawful purchase.

A plea of not guilty was entered, and appellant's counsel moved that the capsules, tablets, and solution seized by the officers, upon which the indictment was found, be excluded from evidence upon the trial of the case, and be suppressed upon the ground that they were obtained as a result of the unlawful arrest of her person, without warrant, in violation of her constitutional rights against unreasonable arrest and seizure of her person; and that such evidence was also obtained through an illegal search of appellant's private home without a search warrant, in violation of her constitutional guaranty against unreasonable search and seizure. Prior to trial, the district court denied the motion to suppress.

On the trial of the case, counsel for appellant, during the course of the proceedings, renewed, on numerous occasions, the motion to suppress the evidence. The district court, however, permitted the government to introduce evidence to sustain its contention that the arrest of appellant and the search of her premises were made with reasonable cause to believe that a felony was being committed. Before the case was submitted to the jury the district court, finding that the evidence upon which the officers acted was undisputed, concluded that the determination whether the arresting officers acted upon probable cause was a matter of law for the court to determine, and held that there was such probable cause; that the arrest of appellant and the search of her premises were, therefore, not in violation of the constitutional provisions against illegal arrest and search and seizure; and that the evidence so secured was properly admissible against appellant. After being duly instructed, the jury considered the case and returned a verdict of guilty, on two counts, and not guilty on one count. The district court sentenced appellant to the payment of a fine and a prison term.

The issue on appeal is whether the officers had probable cause to believe that appellant was committing a felony, and whether the arrest of her person and search of the premises were in accordance with law. If they did not have probable cause for arrest, the evidence obtained as a result of the search should have been suppressed. It is admitted that without this evidence, appellant could not have been convicted.

The evidence upon which the government relies for its showing of probable cause appears in the following somewhat detailed account of the circumstances leading up to the arrest of appellant.

Shortly after noon on February 25, 1946, Agent Newey, of the Federal Bureau of Narcotics, received a telephone call in the bureau office in Detroit from a man who refused to give his name. This unidentified caller stated that he wanted to trade a "tip" for some information from the bureau. He first asked Newey whether he knew a man by the name of McCarthy, who had been arrested in Eaton Rapids, Michigan, and was then being held at Grand Rapids. Newey did have information that McCarthy had been arrested through the efforts of Agent Richards, of the Federal Bureau of Narcotics, but told the unidentified caller that he did not know anything about the matter. Newey was then asked if he knew Abe Epstein, but replied that he did not, although, actually, he had heard from prior conversations at the office with other agents of the Narcotic Bureau, that Abe Epstein was a well-known violator of the Federal Narcotics law. The caller then told Newey that he had some "hot" information; that the narcotics ring, consisting of "McCarthy and McNiff, and the rest of them" which had been operating in Michigan, was headed by Abe Epstein and his companion, Belle Worthington, appellant herein; that Abe Epstein had previously been arrested and convicted for a violation of the Federal Narcotics Law, as well as for a violation of a similar Michigan law, and that Epstein had not, at that time, finished service of the probationary period which had been a part of the sentence of the court; that if Newey would go to Saginaw, he could find narcotics that the unidentified caller had seen in a storeroom and safe in appellant's home; and he further remarked that appellant had operated a "sporting house" in the red light district on South Water Street in Saginaw. The caller used many terms known in criminal parlance, which convinced Newey that the man was an underworld character.

With the information imparted to him by the anonymous telephone call, Agent Newey, together with Agent Richards, proceeded "to corroborate the information and seek its verification" in the files of the office of the Federal Narcotics Bureau in Detroit. In these files, they found a record of an investigation of narcotics violations which had been carried on for some years previously by Agent Rudd.

The record in the files of the bureau disclosed that, in 1944, Rudd, in the course of his inquiries, had come across the information that Abe Epstein had been arrested on September 13, 1943, in Bay City, Michigan, for a violation of the Michigan narcotics law, and that, at the time of his arrest, he had been operating appellant's automobile. Further inquiry revealed that Epstein had obtained a number of false prescriptions from doctors in Bay City and, by the use of them, had secured drugs from several pharmacists in that city.

Rudd, a witness on the trial, testified about the record he had prepared in the case and stated that he had received a letter from his district supervisor in Chicago with a list of telephone numbers to investigate during a trip he was making to northern Michigan. He stated that the letter, dated October 31, 1945, was to the effect that Max Kornhauser, known to Rudd as a narcotic peddler who had previously been convicted for violation of the law, had "in some manner" been in communication with Epstein at a Detroit telephone number and with some person at a certain Saginaw telephone number. Rudd learned that the Detroit telephone number was that of Epstein's sister, with whom he lived. He already knew that Kornhauser was an acquaintance of Epstein. When Rudd came to Saginaw on November 14, 1945, he ascertained that the Saginaw phone number in question was registered to the address of 418 South Water Street, the name of the subscriber being listed as that of appellant. The Kornhauser matter may be summed up by observing that a narcotic peddler was found to have been telephoning someone at Epstein's home, as well as someone at the appellant's house on South Water Street.

Rudd testified that he spent several hours that day, November 14th, observing the premises on South Water Street, and at about 10:00 at night, he saw a man come out of the house and enter a "1938 black panel Ford truck," an old car "which had produce in it." Some weeks later, Rudd was directed to investigate a robbery of the entire stock of narcotics of a drug store in Standish, Michigan, on December 5, 1945. He said that he found that a man, who answered the description of the one he had seen coming out of the South Water Street house in Saginaw, had been in the drug store in Standish on the day it was robbed; that this man had gone to see Doctor Douglas, of Standish, on the same day; that he had told the doctor he was in need of morphine; and he offered to trade a bushel of apples for a morphine prescription. "The doctor gave me a description of the truck," Rudd testified, and "so did the druggist, and I knew, felt certain in my mind that man driving that truck was the same man who I had seen at 418 South Water Street." Rudd then learned...