Ella Mae Work v. United States , 243 F.2d 660 ( 1957 )

FAHY, Circuit Judge.

Trial by jury having been waived, appellant was convicted by a District Judge on the second count of an indictment for violation of 35 Stat. 614 (1909), as amended, 21 U.S.C. § 174 (1952), 21 U.S.C.A. § 174, concealing narcotics known to have been illegally imported.

Before trial she moved under Rule 41 (e), Fed.Rules Crim.Proc., 18 U.S.C., for the suppression as evidence of a phial containing pills. The motion was denied, and the phial and contents were admitted in evidence as a material part of the proof against her. The circumstances in which these articles came into the possession of the United States are not in dispute: Two officers went to appellant’s dwelling place¹ after receiving information that a young girl known to them to be a prostitute and drug addict was using narcotics there. They obtained no warrant of arrest or search warrant; and it is not claimed that when they first went to the house they had cause to make an arrest or a search without a warrant. They knocked on the door. Receiving no answer they opened the door and took “a few steps” into the first floor hallway.² Appellant then walked past the officers, making some comment about the open door. She went out the front door through which they had entered, walked a few feet across a porch, down a few steps, and turned there down another step or two to an area under the porch. There she was seen by the officers, who had followed her, to make motions as if putting something in a trash can located under the porch. But they saw nothing in her hand. Shortly thereafter one of the officers lifted the top of the trash can and took out the phial containing the pills in question.

However well intentioned, the entry into the home without a warrant of any kind was not under “exceptional circumstances” dispensing with the necessity for a warrant.³ Accordingly, it was the beginning of an unreasonable search:

“* * * Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause. «- -» *» Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145.

See also, United States v. Jeffers,⁴ 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; and Lee v. United States, 98 U.S.App.D.C. 97, 232 F.2d 354. Both the Agnello and Jeffers cases involved the seizure of contraband narcotics. This did not deter the Supreme Court from making effective the protection of the Fourth Amendment against unreasonable search and seizure. Indeed, Jeffers explicitly rejects the effort there made to exempt contraband from the rule excluding evidence obtained in violation of the rights of an accused person under the Amendment.

Assuming that appellant placed the phial where it was found it would be unacceptably naive to conclude that this attempt by her to hide it immediately following the presence of the officers in the hall, and that the finding of the phial by the officers, were not direct consequences of their unlawful entry. The phial accordingly could not be used in evidence. Johnson v. United States, supra; Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690; Lee v. United States, supra; cf. Williams v. United States, 99 U.S.App.D.C. 161, 237 F.2d 789. We need not decide whether the officers would have obtained the phial independently of their illegal entry, since the circumstances show that the seizure was a direct consequence of the search which began with the entry which did occur. An imaginary case postulated upon what might have happened if there had been no illegal entry is not before us.

We should add that the search and seizure were not incident to a valid arrest which would have made it reasonable without the necessity for a search warrant. In fact there was no arrest at all preceding the search and seizure. See United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210; Johnson v. United States, supra.⁵

None of the cases relied upon by the United States involved a situation where the original entry, initiating a search and leading to the securing of the evidence, was, as here, an illegal entry into a private dwelling. In Lee v. United States, 95 U.S.App.D.C. 156, 221 F.2d 29, there was no entry; in McQuaid v. United States, 91 U.S.App.D.C. 229, 198 F.2d 987, certiorari denied, 344 U.S. 929, 73 S.Ct. 499, 97 L.Ed. 715, and Fisher v. United States, 92 U.S.App.D.C. 247, 205 F.2d 702, the entry was into the public part of a store; in Ellison v. United. States, 93 U.S.App.D.C. 1, 206 F.2d 476, the evidence sought to be suppressed was secured before entry was made.

The articles seized in the present case had not been abandoned either “to the open fields,” as was done in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 446, 68 L.Ed. 898, or otherwise abandoned so as to lose the protection of the home provided by the Fourth Amendment, however mean the home. The trash receptacle in which the phial was found was in close proximity to the house. It was an adjunct to the domestic use of the home by appellant. It was within the curtilage or “general enclosure surrounding the dwelling.” Care v. United States, 10 Cir., 231 F.2d 22, 25. See Walker v. United States, 5 Cir., 225 F.2d 447, 449; Wakkuri v. United States, 6 Cir., 67 F.2d 844; Childers v. Commonwealth, 198 Ky. 848, 250 S.W. 106. A photograph of the lower half of the premises,⁶ when viewed in light of the evidence, shows that the receptacle was under the stone porch or stoop constituting a part of the house itself. That the receptacle might have been partially visible from the street is immaterial. We point out, however, that no evidence indicates that it was visible from the street. The placing of the phial in this receptacle, so situated and used, is not to be construed as an abandonment of the phial unless to persons impliedly or expressly authorized to remove the receptacle’s contents, such as the trashmen, for purposes of destruction. In the alleged circumstances of this case there could not be said to be an abandonment even to those persons; there was, rather, a hiding.

The phial and its contents should have been suppressed as evidence against appellant in response to the motion under Rule 41(e).⁷

We do not consider other questions raised on the appeal.

Reversed and remanded.

1 . At the hearing on the motion to suppress, counsel for the United States advised the court that defendant, appellant, was the owner of the premises. Though some rooms wore occupied by others than appellant the building was nevertheless her private home.

2 . The place the officers entered is referred to in some of their testimony and in the brief of the United States as a foyer; but from the testimony as a whole wo think it clear the place was the inside hall, an integral part of appellant’s home. It was not a public or semi-public lobby or entrance.

3 . See Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436.

4 . In Jeffers, a key was used to unlock the door, but it can make no difference in law that in the present case the door was opened without a key. In neither case was there permission to enter. There are restrictions upon the manner of entry even when the officer is armed with a search warrant. 18 U.S.C. § 3109 (1952), recently discussed in Woods v. United States, 99 U.S.App.D.C. 351, 240 F.2d 37.

5 . In Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381, Gibson’s own privacy protected by the Fourth Amendment had not been invaded, as the contraband was seized in the house of a co-defendant.

6 . This photograph was made a part of the record on appeal by stipulation between counsel.

7 . In United States v. Jeffers, supra, 342 U.S. at page 51, 72 S.Ct. at page 95, the Supreme Court said:

“ * * * tiie Amendment does not place an unduly oppressive weight on law enforcement officers but merely interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended. * *