McDonald v. United States , 166 F.2d 957 ( 1948 )

WILBUR K. MILLER, Associate Justice.

Appellants were tried on four counts for promoting a lottery, possessing lottery tickets, and keeping a “place” and a “table” for betting on horse races. D.C.Code 1940, §§ 22 — 1501, 1502, 1504. Their motion before trial for the return of the seized property and suppression of evidence was denied. Having been found guilty on all counts, they appeal, contending the property should have been returned and the evidence suppressed because obtained in violation of their constitutional right to freedom from unreasonable search and seizure.

The police believed that appellant McDonald operated a numbers headquarters. They kept his home under observation for some time and saw “quite a bit of activity” there. He had previously been arrested for numbers operations. On being told that he had moved to the residence of a Mrs. Terry, where he occupied a back room on the second floor, the police set a watch on the house. Several times they saw him enter this house in the early afternoon, when numbers operators customarily go to their headquarters, and leave in the late afternoon, when they customarily leave.

On the afternoon of June 22, 1946, police officers Ogle, Blick and Clark watched the Terry house. One of them heard a noise that sounded like an electric typewriter or an adding machine; he “could not say which it was.” It was proved at the trial that there was an electric sewing machine in the house, which made a similar sound, and that adding machines are often used in numbers operations. The outer doors of the house were locked. Officer Ogle opened a window and entered Mrs. Terry’s apartment on the first floor. She found him there and screamed. He brushed her aside, told her he was an officer, and unlocked the outer doors of the house to admit Blick and Clark. The three officers searched the rooms on the first floor, which were not locked. They then searched rooms on the second, floor, starting at the front and working back. When they came upon a locked door at the back of the hall, Ogle mounted a chair and looked over the transom into what proved to be the room rented by appellant McDonald. There he saw both appellants, and also adding machines, numbers slips, and money. He called to McDonald to open the door. McDonald did so and the police entered his room, arrested him and Washington, and seized property which is described in the motion for return as adding machines, a suitcase containing papers, and $968 in money. The officers had no search warrant for the house or for McDonald’s room, and no warrant of arrest for anyone.

In order to complain of an unlawful search and seizure, one must have an interest in the place searched or the property seized.¹ The appellants cannot complain that an unlawful entry was made into Mrs. Terry’s first floor apartment in which they had no interest, nor were they concerned with the search of the rooms of the upper floor occupied by others, nor could Washington protest against an unlawful search of McDonald’s room, had there been one. It does not appear that any search was made of the hall on the second floor, which after all was used in common by all the tenants and their guests. The closest approach to a search of McDonald’s room was the act of the officer in looking through the transom at McDonald and Washington engaged in an unlawful activity. Having observed the commission of a misdemeanor in his presence, the policeman and his fellow officers were justified in knocking at the door, demanding entrance, and arresting the defendants.

The only problem in the case is 'whether looking through the tranjsom amounted to an unlawful search. It was not gentlemanly to spy on McDonald in that manner, but his constitutional rights were not thereby invaded. In United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202, the Supreme Court held that the use of a search light by a Coast Guard patrol boat by means of which contraband liquor on a motor boat was observed, did not amount to a search. That case was cited in Safarik v. United States, 8 Cir., 62 F.2d 892, 895, in which a flash light was used. Smith v. United States, 4 Cir., 2 F.2d 715, is another flash light case to the same effect. See also People v. Marvin, 358 Ill. 426, 193 N.E. 202; Koscielski v. State, 199 Ind. 546, 158 N.E. 902; Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343.

Many cases from both state and federal courts hold the word “search” connotes uncovering that which is hidden, prying into hidden places for that which is concealed. It is not a search to observe what is open to view. In Olmstead et al. v. United States, 277 U.S. 438, 465, 48 S.Ct. 564, 568, 72 L.Ed. 944, 66 A.L.R. 376, the wire tapping decision, the court remarked that the liberal construction given to the Fourth and Fifth Amendments “cannot justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.” (Italics supplied.)

For the reasons given, both judgments are affirmed.

1 Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381, certiorari denied sub. nom. O’Kelley v. United States, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429.