Before BIGGS, Chief Judge, and McLAUGHLIN and O'CONNELL, Circuit Judges.
O'CONNELL, Circuit Judge.
Indicted and found guilty of a violation of Section 2 of the Narcotic Drugs Import and Export Act, 21 U.S.C.A. § 174, defendant has taken the instant appeal. The questions presented for our decision involve the scope of the Fourth Amendment to the Constitution of the United States.
The facts, stipulated for the purpose of this appeal, are substantially as follows: One Billie Holliday, an entertainer, passed a small package wrapped in white tissue paper to defendant, on one of the busier street corners of downtown Philadelphia. This occurred at 11"30 P.M. on May 15, 1947, in front of a theater at which Holliday had just completed a professional engagement. Neither Holliday nor defendant was aware that one Roder, an agent of the Federal Bureau of Narcotics, observed the transfer of the package. Directly thereafter, Holliday, her piano accompanist named Tucker, and defendant entered an automobile and rode to a hotel where the three were staying. Roder and two other federal agents followed them.
Upon arriving at the hotel, the federal agents secured the services of two uniformed Philadelphia policemen. These five officials proceeded to the room which defendant and the accompanist were occupying. The door of the room was open. Defendant and Tucker were packing travelling bags. Identifying themselves, the federal agents asked whether they could search the room. Defendant and Tucker told them they "could 'go ahead.'"
The search lasted several minutes. Roder found, under one of the beds, the identical package which Holliday had given defendant on the pavement about a half hour previously. The package contained capsules of heroin hydrochloride, two hypodermic needles, and other items, all wrapped in a silk stocking. At first denying all knowledge of the package, defendant later admitted that he had been in possession of it and had thrown it under the bed. He further asserted that he did not know the contents of the package until but a few minutes before the federal agents and city policemen arrived. The stipulation does not include information as to when defendant was placed under arrest.
At the time these events happened, defendant had been in Holliday's employ, as road manager, for about three weeks. He admitted knowing that she had been addicted to drugs, but maintained that he thought she had been cured as a result of treatment she had taken.
Defendant waived trial by jury. He made no motion to suppress the evidence seized by the federal agents as a result of the aforementioned search. He moved for a judgment of acquittal both at the close of the testimony presented by the government and after his defense rested; but neither of these motions referred to the failure of the government agents to obtain a search warrant before they entered his hotel room. Denying both motions, the trial judge found defendant guilty.
About three weeks thereafter, defendant moved for a new trial or judgment of acquittal. For the first time, he asserted that he "was illegally arrested as the Federal agents who made the arrest invaded his private room at the Attucks Hotel without a search or seizure warrant as is required by law." Five days later, denying this motion as well, the trial judge sentenced defendant to imprisonment for one year and one day.
The stipulation of facts concludes with the statement that "there was considerable more testimony adduced both by the Government and the defendant bearing on the guilt or innocence of the defendant with regard to the question of the defendant's guilty knowledge of the contents of the package, but counsel do not consider them essential to the questions raised upon this appeal."
Within the past eleven months, the Supreme Court of the United States has handed down three decisions of prime importance in interpreting the Fourth Amendment. In United States v. Di Re, 1948, 332 U.S. 581, 68 S. Ct. 222, 229, the Court, inter alia, held that submission to arrest and acceptance of a command to go to the police station is not a basis for inferring probable cause, and reiterated the principle that "a search is not to be made legal by what it turns up." In Johnson v. United States, 1948, 333 U.S. 10, 68 S. Ct. 367, 369, a case partially involving the same statute as that under which the instant defendant was convicted, the Court stressed that "when the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent," and that "an officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion." Finally, in Trupiano v. United States, 1948, 334 U.S. 699, 68 S. Ct. 1229, 1232, although holding that a warrant of arrest is unnecessary where a felony plainly occurs before the eyes of an officer of the law at a place where he is lawfully present, the Court nevertheless granted a motion to exclude and suppress contraband which was physically near the person properly arrested and which was seized without a warrant. Again in the Trupiano case the Court emphasized that the Fourth Amendment requires "adherence to judicial processes wherever possible," and pointed out that there was an abundance of time during which a search warrant could have been secured. The Court said, "Rather the test is the apparent need for summary seizure, a test which clearly is not satisfied by the facts before us." 334 U.S. at page 708, 68 S. Ct. at page 1234. Even the dissenting justices in the Trupiano case accented the fact that there had been a lawful entry and a valid arrest.
Applying these principles to the facts at bar, we cannot escape the conclusion that the search and seizure here involved fell within the ban of the Fourth Amendment. It is true that subsequent events indicated that Roder had witnessed the commission of an offense, when he saw Holliday hand the package to defendant; but it is equally true that the act which he observed was not, in and of itself, of a kind which would obviously give even a trained eye more than a suspicion that an offense was being committed. We think it is doubtful whether an appropriate judicial officer, informed that a former addict had been seen to hand a small package wrapped in white paper to her employee in front of a downtown theater, would have considered the circumstances sufficiently suspicious to warrant the issuance of a search warrant.
We shall, however, assume without so deciding that what Roder observed did constitute "reasonable cause" for the securing of a warrant.Instead of doing so, he chose to follow defendant to the hotel and institute a search without a warrant. We deem it plain that this course of action was not "adherence to judicial processes whereever possible." We have been given no reason to justify Roder's dispensing with the orderly procedure prescribed for searches and seizures. Even if Roder had known in advance that defendant was going to th hotel to pack the travelling bags, we have no intimation that defendant was preparing for flight from justice. Holliday's engagement at the theater had ended, and the preparation for departure was perfectly consistent with what one would expect of the road manager of a figure in the entertainment world. Moreover, it nowhere appears that the lapse of time necessary to obtain a warrant would have permitted defendant to depart before Roder could take effective action. The facts unmistakably indicate that the federal agents either deliberately or through inadvertence chose to by-pass the constitutional requirement.
On the oral argument before us, the government conceded, as indeed the Di Re and Johnson cases indicate, that defendant's "go ahead" cannot be construed as consent to the search. The federal agents and city policemen were a show of authority and force to which defendant merely submitted. As in the Johnson case, the arrest of defendant could be justified only by the search, and the ...