The opinion of the court was delivered by: HIGGINBOTHAM
HIGGINBOTHAM, District Judge.
The instant case presents a classic dilemma of balancing a citizen's right from unreasonable searches and seizures against a law enforcement officer's fervent intent to apprehend those persons actually dealing in substantial quantities of hashish. For here, literally, the defendants were "caught with the goods" -- 90 pounds of hashish. The issue is raised by a motion to suppress the seizure of the aforementioned "hashish" which was found at defendant Agnes' home where the other codefendants were in the process of packaging it. As noted below, the ultimate issue is whether this search falls within one of the recognized exceptions which precludes the necessity of obtaining a search warrant. It is indeed a close case.
At approximately 6:20 p.m., on the date in question, the officer in charge had to make an instant decision as to (1) whether he would risk losing the evidence while waiting for the preparation and procurement of a search and seizure warrant, or (2) whether he would attempt to seize the evidence and thereafter risk losing that which was seized, by way of a motion to suppress. I cannot be critical of the judgment exercised; I believe that under the exigencies of the hour many fair-minded law enforcement officers would have chosen the same option. However, my role is quite remote from the dilemmas facing the officer who must make a split-second decision. For I have had several weeks to review the most careful distinctions articulated in Supreme Court decisions, thoughtful Law Review articles, and the extensive arguments of counsel. After this lengthy review, I have concluded that in this extremely close case the motion to suppress should be granted -- particularly in view of the Supreme Court's opinions in Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); and Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). But for the aforementioned Supreme Court opinions I would have concluded that the instant search and seizure (without a warrant) was permissible under the so-called "emergency doctrine".
On September 30, 1971, the above named defendants were indicted for conspiracy and possession of a controlled substance with intent to distribute,
that is, ninety (90) pounds of "hashish", all in violation of Title 21, United States Code, Section 841(a)(1).
Sometime during the month of July, 1971, federal customs agents received reliable information that a bronze statue containing a large shipment of illicit drugs, from a point somewhere in Europe, would be shipped to a hospital in this area. (N.T. 7-8). As a result of this information, agents or "look-outs" were posted at the Philadelphia International Airport and the waterfront. On or about July 26, 1971, a crate, answering the general description given to the agents by the informant, was delivered to the Airport. (N.T. 9). Thereafter, Federal customs agents inspected the crate and statue; they then removed a small sample of the contents for chemical analysis. This sample was confirmed to be "hashish", a controlled substance under Title 21, United States Code, Section 841(a)(1). (N.T. 12-13). The statue contained approximately ninety (90) pounds of "hashish"; it was addressed to Dr. Daniel Sill of the Board Street Hospital (N.T. 10); Dr. Sill is not a co-defendant to this action. Thereafter, the crate was resealed and placed under constant surveillance. Subsequently, and as expected, a pick-up was made on July 28, 1971, at approximately 4:00 p.m., by two men, one of whom was identified as Louis Martin Agnes (A/K/A Louis Martin), a defendant herein. (N.T. 13). The crate was taken from the Airport by defendant Louis Agnes, by car, to 1819 S. 9th Street in Philadelphia, where it was unloaded at about 5:00 P.M.
(N.T. 40-41). Shortly thereafter, a custom's agent was dispatched at approximately 5:10 P.M. on July 28, 1971, to prepare and procure a search warrant. (N.T. 106). Subsequently, defendant Agnes left the South Ninth Street address at about 6:00 P.M., without the crate, but in his car. He was, of course, placed under surveillance. During this surveillance, Agent Bergin testified that "it appeared to us that the vehicle [Agnes' car] was becoming evasive and aware we were behind it, and we stopped it and took the operator in custody." (N.T. 63). The actual arrest occurred at a gasoline station (some six blocks from Agnes' home), between 6:20 and 6:30 p.m. (N.T. 43, 85). As he was being taken into custody, Agnes yelled to the gas station attendants and spectators, "Call my brother". (N.T. 66, 67, 86). The agents testified that at this point they reasonably believed that there existed the "threat of destruction" to the "hashish", which had been delivered to defendant Agnes' home. (N.T. 67-69). Thus, the agents proceeded to enter defendant's home in order to preserve the evidence contained therein. Once inside, the officers found the co-defendants, Earl Melvin Agran, Paul Gary Rubin, and Jan Massaar, in the process of packing the "hashish" for possible distribution; all were arrested and the "hashish" seized. (N.T. 71-73). Of course, the search was made without a warrant, and subsequent to the arrest of defendant Agnes. Upon the arrest of Agnes, Agent Moss abandoned his efforts to procure a search warrant. (N.T. 105-108).
The government argues, on the other hand, that there was probable cause to arrest defendant Agnes when they did, and the subsequent warrantless search of his home was justified under the so-called "emergency doctrine", to prevent the destruction of incriminating evidence.
Before discussing, at length, the major contentions of the government and the defendants, as to the "reasonableness" of the instant search, I must rule on some subsidiary contentions raised by both parties. These issues must be preliminarily disposed of before adjudicating the validity of the search.
First, it is clear that all defendants were on the premises either at the request or acquiescence of the defendant Agnes; thus, each has standing to suppress any illegally obtained evidence that may be used against them. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); United States v. West, 453 F.2d 1351 (3d Cir. 1972). See Note, Standing to Object to an Unreasonable Search and Seizure, 34 U. Chi. L. Rev. 342 (1967).
Secondly, since the arrest of Agnes was at least six blocks away from the place of actual seizure of the hashish, it is apparent that in terms of time and place the subsequent search of Agnes' home could not be justified on the rationale of a search incident to an arrest. This search lacked that element of being "substantially contemporaneous" with the arrest of Agnes. Agnello v. U.S., 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
At the time of the search, Agnes' home apparently was not being lived in though some painters and craftsmen were present for the purpose of remodeling it. The government argues that since the "house" was not a "home" in the usual sense, this Court should "grant greater latitude to the instant search than would be afforded a home." This argument is patently without merit, and as such is untenable. The test of any search, anywhere, any time, is the Fourth Amendment. This Constitutional mandate is premised, not upon the general character of the place searched, but whether or not the individuals had a reasonable expectation of privacy. The Supreme Court stated in Katz v. United States, 389 U.S. 347, 351, 352, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967):
"What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. (Citations omitted). But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." (emphasis added).
Thus, it is clear the house, home, or residence, used by defendants to carry on their illegal activity is protected from an "unreasonable search and seizure", and that the premises in question, though not occupied as a dwelling, has the same Fourth Amendment safeguards as a fully occupied home.