Ralph A. Vanella and George William Sullivan v. United States ( 1966 )

HAMLIN, Circuit Judge:

A panel of this court consisting of Judges Chambers, Orr and Hamley on April 20, 1965, rendered an opinion in the above case which was written by Judge Orr and concurred in by Judge Hamley. Judge Chambers dissented. That opinion is as follows:

“IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Ralph A. Vanella and George William Sullivan, Appellants, vs. United States op America, Appellee. J No. 19,270

Appeal from the United States District Court for the Southern District of California Central Division

Before CHAMBERS, ORR and HAMLEY, Circuit Judges.

ORR, Circuit Judge:

Having been convicted on June 12, 1963, of possession of marihuana, Va-nella and Sullivan appeal. They contend that their rights under the Fourth Amendment to the United States Constitution were violated in that federal and state officers subjected them to unlawful search and seizure in securing the marihuana upon the possession ■of which their prosecution was based and which was introduced into evidence against them. We conclude that their contention is valid and that the motion made to suppress the questioned evidence should have been granted.

In presenting the picture of that which transpired, a somewhat lengthy statement of the circumstances is required. On February 14, 1963, the Federal Grand Jury sitting in Los Angeles, California, returned an indictment against appellant Vanella and others charging violation of 21 U.S.C. § 176a and 18 U.S.C. § 371. The alleged violations involved a conspiracy on or about January 1, 1962, relating to the unlawful transportation and concealment of marihuana.¹ This was district court case No. 31,832. On the basis of this indictment the United States District Court, in the presence of the foreman of the Grand Jury and United States Customs Agent Neil Greppin, issued a warrant for the arrest of appellant Vanella. The events which followed were the subject of the indictment in district court case No. 31,936, in which the convictions of Vanella and Sullivan were obtained and upon which this appeal was taken.

At approximately 9:00 P.M. that evening Agent Greppin and Agent Bertram Falbaum arrived at the residence of appellant Vanella in Los Angeles. Both agents went to the rear of the house, stepped up on the back porch steps, and looked into the house through a window. They observed appellants Vanella and Sullivan and Va-nella’s wife in the living room. Agent Falbaum stationed himself at the corner of the building from which point he could observe the front and rear doors of the house. Agent Greppin proceeded to the front door and knocked. A female voice inquired as to who was knocking, whereupon Greppin identified himself, stated he was from United States Customs, and asked to talk to Vanella. Shortly thereafter, appellant Vanella came running out the back door and started down the steps. Agent Falbaum called to him and Va-nella turned and ran back into the house. Agent Falbaum followed Va-nella up the steps and into the house, where Vanella apparently ran into Sullivan who seemed to be heading for the back door. Before running ■ into the house Agent Falbaum called to Agent Greppin to the effect that appellants were attempting to escape out the back door. Agent Greppin forced the front door and entered to find Agent Fal-baum with appellants in the dining room. As Agent Greppin joined the men appellant Sullivan ran into the bathroom where he began washing his hands in a bathtub full of water. Agent Greppin ran after him and asked him to return to the dining room, which he did. Agent Greppin then, having observed a bulge in Sullivan’s right front pocket, removed a waxed paper bag containing 88 grains of marihuana. Appellant Sullivan was then placed under arrest for possession of marihuana. Neither Agent Grep-pin nor Agent Falbaum had seen appellant Sullivan at any time prior to their arrival at Vanella’s residence, nor had they any information concerning him.

After appellant Sullivan was returned to the dining room from the bathroom, appellant Vanella was handcuffed and advised that he had been indicted by the Federal Grand Jury for violation of the federal laws pertaining to marihuana. Then, following a call by Mrs. Vanella to an attorney, Agent Greppin called the Los Angeles Police Department for assistance. Approximately twenty minutes later two officers arrived and together with Agent Falbaum searched the Va-nella residence. The search produced two packages of marihuana — 260 grams were found in a bedroom underneath a bed and 411 grams were found in the bathroom underneath the bathtub. Subsequent to the finding of the three bags of marihuana, appellant Vanella told Agent Greppin that said three bags comprised all the marihuana in the house and that it had come up from Mexico. Vanella stated also that he had given to appellant Sullivan the marihuana that was seized from Sullivan. Appellant Sullivan told Agent Greppin that he did not deal in marihuana, but that he smoked it.

Appellants Vanella and Sullivan, together with the marihuana that had been seized, were taken to the Los Angeles police station. Vanella and Sullivan were booked. Subsequently a trial was had. At its inception a motion to suppress evidence — including the three packages of marihuana mentioned above — was made by appellants. The motion was denied and the three packages of marihuana admitted into evidence. The trial judge, sitting without a jury, found appellant Vanella guilty on three counts of violation of 21 U.S.C. § 176a and found appellant Sullivan guilty of one count of violation of 21 U.S.C. § 176a. Vanella received sentences of 10 years on each count, to run concurrently. Sullivan received a sentence of 6 years.

Appellants contend that the trial court erred in denying their motion to suppress evidence seized at Vanella’s. residence. We agree. The seizure of the marihuana from the person of appellant Sullivan and from the home of appellant Vanella was unreasonable and in violation of the Fourth Amendment to the United States Constitution.

First, the search of appellant Sullivan was illegal. The officers had obtained no search warrant. The search of Sullivan was made before he had been arrested ² and therefore cannot be justified as a search incident to a lawful arrest.³ A search not pursuant to a search warrant nor incident to a lawful arrest has been found to be proper only in certain exceptional circumstances,⁴ not present in this case. Hence, the fruit of the search of Sullivan, 88 grains of marihuana, was inadmissible. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

Likewise, the search of appellant Va-nella’s residence was illegal. The Customs Agents that came to his residence to arrest him had no apparent reason to believe that Vanella was then engaged in any narcotics violation. The indictment upon which the warrant for his arrest was based concerned an alleged conspiracy that occurred more than a year previous. In view of this a search of Vanella’s entire residence had no apparent rational connection to the alleged conspiracy for which Va-nella was indicted and arrested.⁵ Such a search therefore cannot be justified as a search incident to an arrest on the charge in the indictment. Furthermore, the discovery of marihuana on the person of Sullivan cannot be relied on to justify a search of the entire premises for further evidence of a current violation of federal laws relating to marihuana. In light of our determination that the seizure of the evidence from the person of Sullivan was illegal and the evidence inadmissible, the product of any further search, necessarily based upon this evidence, is likewise inadmissible. This involves no more than a fair application of the ‘fruit of the poisonous tree’ concept discussed in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Failure to grant the motion to suppress and the allowance of the marihuana into evidence constituted reversible error. Other points are urged for reversal, but because of the view we take of the illegality of the searches, we find it unnecessary to consider them.

Judgment reversed.

1 . Vanella was brought to trial on these charges. At the completion of the government’s case a motion for acquittal by appellant Vanella was granted on May 10, 1903.

2 . Agent Greppin testified that he arrested Sullivan only after he had seized the marihuana from his pocket. Furthermore, in our view the actions of Agents Greppin and Falbaum before the seizure of the marihuana cannot be considered to be an arrest. See Davis v. People of State of California, 341 F.2d 982 (9 Cir. 1965).

3 . In this Circuit we have held that in certain “Exigent circumstances” a search can be made prior to an arrest of a person. A prior search may be valid as incident to a substantially contemporaneous arrest without a warrant if the arresting officers had probable cause for the arrest at the time of the search, and the circumstances suggested that immediate search was necessary to preserve material subject to seizure. See discussion and collection of cases in Cipres v. United States, 343 F.2d 95, 98, n. 9 (9 Cir. 1965). Such circumstances certainly do not exist in this case.

4 . See Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Ventresca, 380 U.S. 102, n. 2, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

5 . See Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, (1948); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Go-Bart Importing Company v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931).