Before GOODRICH, KALODNER and STALEY, Circuit Judges.
Following a jury trial, defendant Bernice Merritt, was found guilty and sentenced*fn1 for violation of the narcotic law.*fn2
She prosecutes this appeal on the ground that the evidence which established her guilt - possession of heroin - was obtained in an illegal search and seizure and that the District Court had erred in denying her motion to suppress the evidence, duly made prior to trial.
Critical to our disposition of this appeal are these facts:
On February 24, 1960, Federal Narcotics Agent Dillworth applied to a United States Commissioner for the issuance of a search and seizure warrant making affidavit at the time that he had reason to believe that defendant, a known narcotic violator who had made sales of narcotics on January 27th and 28th, 1960, had narcotics concealed in the apartment which she occupied on the second floor of 212 State Street, (rear), Clairton, Pennsylvania.
The Commissioner issued a search and seizure warrant which provided for its service and a search of defendant's apartment "in the daytime".
The District Court, in its Opinion*fn3 denying defendant's motion to suppress made the factual finding that the warrant was not served "until 7:30 P.M. at night."*fn4
The officers making the service,*fn5 members of the Pittsburgh police force and local county officers, broke open the door of defendant's apartment and when they entered she threw a package out of the window. The package, which landed on the top of an automobile outside the house, was immediately recovered by the police and found to contain heroin. In a search of defendant's apartment made during the following hour and half the officers found additional heroin and needles and syringes, which defendant concedes she owned.
The District Court in its Opinion found that "the search warrant was legally invalid" because it was served at night and not during daytime as provided by its terms. It, however, denied the motion to suppress for these stated reasons:
"I am satisfied that the circumstances underlying the facts of this seizure bring it within one of the exceptions to the rule that a search must rest upon a search warrant.
"In short, it appears that Government officers approached petitioner's premises with the view to interrogation and investigation. The petitioner, in the act of throwing a quantity of heroin out of the window, in the view and presence of Government officers, voluntarily revealed the package of narcotics to the officers' view which created the basis of a lawful arrest by the reasonable cause to believe that a felony was being committed in their presence. Jose Terrones Rios v. United States, No. 52, October Term 1959, decided June 27, 1960, officially unreported. [Rios v. United States, 364 U.S. 253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688]
"I am fully satisfied that probable cause was amply shown in support of the search."
The defendant on this appeal*fn6 urges that the District Court's fact-finding that the search warrant was not served until after nightfall and its "conclusion" that "the search warrant was legally invalid in view of the fact that the conduct of the searching officers was not within the authorization of the warrant" required the ...