Jeffers v. United States , 187 F.2d 498 ( 1951 )

FAHY, Circuit Judge.

The appellant was convicted in the District Court of having purchased, sold, dispensed and distributed cocaine and codeine sulphate not in and not from the original stamped package, 26 U.S.C.A. § 2553(a), and of having facilitated the concealment and sale of said narcotics after they had, with his knowledge, been imported into the United States contrary to law, 21 U.S.C.A. § 174. Several bottles of cocaine attributed to his possession and which carried no Government stamps were admitted in evidence over appellant’s objection. Previous to trial he had moved; to suppress this evidence. In this motion he claimed ownership of the bottles and as.-serted they had been unlawfully seized.

The evidence was obtained as follows: A reputed dealer in narcotics approached the house detective of a Washington hotel and offered him $500 to be let into a room in the hotel. He said that Jeffers, the appellant, had “stached” narcotics, there. The detective told him to come back later. He then called a member of the-Narcotics Squad of the Metropolitan Police to come to the hotel for some information. Upon his arrival the detective told him; what had occurred. The two went to the assistant manager of the hotel, secured a. key to the room, or apartment as it is sometimes called, and entered it without a warrant of any kind. There they found in a box in the closet 19 bottles of cocaine-without the requisite Federal stamps. It; was the apartment of two aunts of Jeffers,, one of whom testified. She said that appellant did not occupy the room but did occupy-another room in the hotel and had a key to their apartment with permission to use-it whenever he saw fit. They paid for the care of his child at another place and he-often came into the apartment when they-were not there to leave money for the care of the child. She further testified' the appellant had no permission to store narcotics in the apartment and she did not know that he had done so. It was stipulated that if called the other aunt would have testified to the same effect.

The search and seizure were unlawful. The Fourth Amendment reads: “The right-of the people to be secure in their persons,, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to- be searched, and the persons or-things to be seized.”

When an officer without a warrant of any kind and without permission unlocks. the door of another’s apartment, enters, searches it and seizes effects found in the course of such search, he violates the Fourth Amendment unless the circumstances bring the conduct within some exception obviating the necessity for a warrant. Such an exception is when the search and seizure are incident to a valid arrest, United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430; Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, or are justified by an emergency, Johnson v. United States, 1948, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436. There was no arrest to which the search and seizure in this case were incident, nor was there any emergency. As to the latter there was no evidence that the property was likely to be removed before a search warrant could be obtained. There is no indication that measures could not easily have been taken to prevent its removal or to. arrest anyone attempting it. See Taylor v. United States, 1932, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Johnson v. United States, supra, and McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153.

The Government, assuming arguendo the illegality of the search, disputes the standing of the accused to object to the evidence obtained. It is said no right of privacy of appellant protected by the Fourth Amendment was violated since the apartment searched was not his. But the property seized was his. And not only was the search unlawful; so also was the seizure. There was no warrant for either, and neither was under circumstances making it 'reasonable without a warrant There was no emergency and no arrest.

An accused does not have standing to prevent the admission of evidence obtained by an unlawful search and seizure which did not infringe his own personal rights protected by the Amendment. The constitutional provision against unreasonable searches and seizures does not in terms bar the admission of evidence obtained by its violation. The exclusionary rule as applied in the federal courts was formulated by the judiciary in aid of the effectiveness of the Amendment, Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; see Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; but is available -only to. the victim of the unconstitutional conduct. “ * * * the federal courts in numerous cases, and with unanimity, have denied standing to one not the victim of an unconstitutional search and seizure to object to the introduction in evidence of that which was seized. * * ” Goldstein v. United States, 1942, 316 U.S. 114, 121, 62 S.Ct. 1000, 1004, 86 L.Ed. 1312; see, also, Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 149 F.2d 381, certiorari denied sub nom O’Kelley v. United States, 1945, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429. Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., now states that it is the “person aggrieved” by an unlawful search and seizure who may move to suppress evidence so obtained. We assume the Rule does not enlarge the previously established limits of the class who may object. Lagow v. United States, 2 Cir., 1946, 159 F.2d 245. See, also, United States v. Janitz, 3 Cir., 1947, 161 F.2d 19, 21. Clearly, however, it does not contract those limits.

Where the premises are those of. the accused he has the requisite standing. Harris v. United States, supra; McDonald v. United States, supra; Johnson v. United States, supra.¹ Here, however, the premises were not appellant’s. While he had certain rights therein we believe the question of his standing to object to the evidence turns upon his claim of ownership of the evidence seized rather than upon an interest in the premises searched.

In most of the decided cases objection to the seized evidence has rested upon an interest in the premises unlawfully searched. Yet the rule has been stated often in terms which authorize the objection to be made as well upon the basis of ownership in the property unlawfully seized.

“ * * * the settled doctrine is that objection to evidence obtained in violation of the prohibitions of that [Fourth] Amendment may be raised only by one who claims ownership in or right to possession of the premises searched or the property seized, * * * ” [citing cases, including Shore v. United States, 60 App.D.C. 137, 49 F.2d 519]. Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 85, 149 F.2d 381, 384.

“ * * * This court is committed to the doctrine that only the owner or possessor of property is aggrieved by the illegal search and seizure of it. Connolly v. Medalie, 2 Cir., 58 F.2d 629. * * *” United States v. Stappenback, 2 Cir., 1932, 61 F.2d 955, 957.

In Shore v. United States, supra, objection of the defendants was overruled, in the court’s language, “ * * * for the simple reason that, since they do not claim property in the liquor or the trunks, no constitutional rights of theirs were invaded. The guaranties of the Fourth and Fifth Amendments, as we have seen, were intended for the benefit of the person whose rights have been transgressed, but this right is personal, and may not be availed of to protect one who claims no ownership in or right of possession of the goods seized, * * * ” 60 App.D.C. at page 140, 49 F.2d at page 522.

See, also, to similar effect, Shields v. United States, 1928, 58 App.D.C. 215, 26 F.2d 993; Nunes v. United States, 1 Cir., 1928, 23 F.2d 905; Klein v. United States, 1 Cir., 1926, 14 F.2d 35; Matthews v. Correa, 2 Cir., 1943, 135 F.2d 534, 537; Chepo v. United States, 3 Cir., 1930, 46 F.2d 70; Kitt v. United States, 4 Cir., 1942, 132 F.2d 920; Grainger v. United States, 4 Cir., 1946, 158 F.2d 236; Goldberg v. United States, 5 Cir., 1924, 297 F. 98; Remus v. United States, 6 Cir., 1923, 291 F. 501, 511; McMillan v. United States, 8 Cir., 1928, 26 F.2d 58; Armstrong v. United States, 9 Cir., 1926, 16 F.2d 62, 65; Lewis v. United States, 9 Cir., 1925, 6 F.2d 222.

In Pielow v. United States, 9 Cir., 1925, 8 F.2d 492, 493, the premises invaded were not those of the person to whom the seized papers and books belonged and who was on trial. They had been entrusted, for convenience in posting them, to the one from whose possession they were taken. In sustaining the objection to their admission, the court said, “ * * * The Constitution protects against unreasonable search and seizure, not only their ‘persons’ and ‘houses,’ but the people’s ‘papers and effects.’ * * * ”

See, also, United States v. De Bousi, D.C. D.Mass., 1929, 32 F.2d 902, where the court said: “ * * * I do not find in any of the cases where the evidence obtained upon wrongful search and seizure has been admitted that the defendant had or asserted any rights in the premises searched or in the property seized. * * *” 32 F.2d at page 903.

The Government cites Gibson v. United States, supra, in support of the position that the accused who objects must have rights in both premises and property. As we have seen, the language of the opinion is to the contrary. It is true that Gibson’s ownership of the marihuana cigarette seized did not cause its exclusion as evidence against him, but the opinion shows that the cigarette which fell on the floor when Gibson took a handkerchief from his pocket, was seized in connection with his arrest for a crime committed in the presence of the officers. This made its seizure lawful, United States v. Rabinowitz, supra. In the present case the seizure was in no manner incident to an arrest.

Cases such as Ingram v. United States, 9 Cir., 1940, 113 F.2d 966; Connolly v. Medalie, 2 Cir., 1932, 58 F.2d 629; Bushouse v. United States, 6 Cir., 1933, 67 F.2d 843; Holt v. United States, 6 Cir., 1930, 42 F.2d 103, and In re Dooley, 2 Cir., 1931, 48 F.2d 121, are instances in which the evidence was not suppressed, but in none of these cases did the one who sought suppression own either the premises searched or the property seized.

We believe the correct rule to be that one who seasonably objects to' the use in evidence against him of property he owns which has been seized as the fruit of an unlawful search or otherwise in violation of the Fourth Amendment is entitled to its exclusion though, the premises searched were not his. He is a “victim” of (Goldstein v. United States, supra), and “aggrieved” by (Rule 41(e), supra) the violation of the Fourth Amendment. To deny him standing to object would be inconsistent with the purpose of the exclusionary rule to make the Amendment effective; for it condemns unreasonable seizures as well as unreasonable searches and applies to “effects” as well as to “houses.”

The question remains whether statutory provisions that unstamped narcotics are subject to seizure and forfeiture ² and “ * * * no property rights shall exist in any such * * * property”³ deprived appellant of ownership of the things seized and thus left him without standing to obtain suppression of the evidence. The statutory provision negating property rights in such goods is immediately followed by the sentence, “A search warrant may issue as provided in title XI of the Act of June 15, 1917, 40 Stat. 228 (U.S.C., Title 18, §§ 611-633), for the seizure of such liquor or property. * * * ” (Footnote 3, supra). This recognition of the application of the Amendment to contraband articles indicates no intention to weaken its effectiveness. The statutes cited permit confiscation of the dangerous material and preclude repossession of it by one who might claim it; but the right to obtain its exclusion as evidence on a trial does not depend upon the right to retain or to repossess. Trupiano v. United States, 1948, 334 U.S. 699, 710, 68 S.Ct. 1229, 92 L.Ed. 1663; Agnello v. United States, 1925, 269 U.S. 20, 34, 46 S.Ct. 4, 70 L.Ed. 145. Rule 41(e), supra, recognizes that a motion to suppress may be granted notwithstanding the property remains “otherwise subject to lawful detention” by the authorities. Compare, however, pn this, point, Connolly v. Medalie, supra. The exclusionary rule aids in the effectiveness of the Fourth Amendment by placing in the hands of him who has an interest in the premises unlawfully searched or who is the owner of the property unlawfully seized a right to obtain its exclusion as evidence against him. The provision in the statutes that no rights of property shall exist in some narcotics should be given meaning consistently with this rule. We see no indication of a Congressional intent to weaken the exclusionary rule by indirection. The interest which gives standing to object to the admission of evidence seized by means which violate the Constitution is not the same as the property right destroyed by statute to prevent the unauthorized use or circulation of dangerous drugs. The former is required by a judicially established rule of evidence which is not intended thus to be abrogated. The purposes of the evidentiary rule and of the statute providing for confiscation are thus reconciled. One has to do with preventing on a trial the use of evidence unlawfully seized. The other has to do with forfeiture. The two may and should stand unimpaired. Assuming that Congress might modify or abolish the exclusionary rule, Wolf v. Colorado, supra, 338 U.S. at page 33, 69 S.Ct. at page 1364, no intention to take such an important step should be read by implication into a statute which gives every indication of a purpose to keep the Amendment in full vigor. We note also that in Agnello v. United States, supra, contraband narcotics were excluded from evidence.⁴ Contraband liquor, subject to forfeiture and destruction, was involved in Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, in Amos v. United States, 1921, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, and in numerous other cases where the exclusionary rule was applied.⁵ For purposes of standing to object to its admission in evidence, appellant was the owner of the property. Since it was seized in violation of the Fourth Amendment, it should have been excluded as evidence on his trial.

Reversed.

1 . These eases demonstrate also that an apartment is as much within the protection of the Amendment as any other home.

2 . “All unstamped packages of the drugs mentioned in section 2550(a) found in the possession of any person, except as provided in this subchapter, shall be subject to seizure and forfeiture, and all the provisions of internal revenue laws re- . lating to searches, seizures, and forfeiture of unstamped articles shall be extended to and made to apply to the articles taxed under this subchapter and the persons upon whom the taxes under this subchapter or part V of subchapter A of chapter 27 are imposed.” 26 U.S.C.A. § 2558(a).

3 . “It shall be unlawful to have or possess any liquor or property intended for use in violating the provisions of this part, or the internal-revenue laws, or regulations prescribed under such part or laws, or which has been so used, and no property rights shall exist in any such liquor or property. A search warrant may issue as provided in title XI of the Act of June 15, 1917, 40 Stat. 228 (U.S.C., Title 18, §§ 611-633), for the seizure of such liquor or property. * * * ” 26 U.S.C.A. § 3116.

4 . The erroneous admission of the contraband caused a reversal as to Agnello. As to his co-defendants, the Supreme Court pointed out that the evidence had been admitted only as to Agnello, and therefore reversal of his co-defendants' convictions was not required. See opinion of the Supreme Court in 269 U.S. at page 35, 46 S.Ct. at page 7.

5 . See, also, Taylor v. United States, supra, and Johnson v. United States, supra. In the latter the evidence excluded was opium paraphernalia. The discussion in Boyd v. United States, 1886, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, of the right to seize contraband, burglar’s tools, counterfeit coins, and the like, assumes a warrant for that purpose or the presence of other circumstances which make the seizure reasonable. We think this is clear also from Commonwealth v. Dana, Mass., 1841, 2 Metc. 329, relied upon in Boyd v. United States, supra, 116 U.S. at page 624, 6 S.Ct. at page 529. See, Mso, dissenting opinion in Harris v. United States, supra, 331 U.S. at pages 162-163, 67 S.Ct. at page 1107, which in this regard is in no manner at variance with the prevailing opinion of the court in that case.