Defendant was tried and convicted on a two-count indictment charging housebreaking and larceny. He was acquainted with the complaining witness, and lived in a roominghouse adjacent to her home. Returning thereto after a short absence, she discovered that certain of her personal property had been removed. She notified the police. During their investigation they observed jimmy marks on her door, and later went to defendant's room. This they entered and searched with only the consent of his landlord, and took possession of the alleged stolen articles, one a radio and the other an electric iron. Defendant was thereafter arrested, and denied his guilt, explaining that he had purchased the articles from an unknown man who had accosted him on the street.
Rule 41, Federal Rules of Criminal Procedure, 18 U.S.C.A. provides that a person aggrieved by an unlawful search and seizure may move to suppress for use as evidence anything so seized, but provides that such motion shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. If further provides that the Court, in its discretion discretion, may entertain the motion at the trial. In this case, opportunity to make the motion did exist before trial, and defendant was aware of the factual grounds for the motion; and I find herein no justification for the exercise of the discretion provided by the rule.
Defendant, however, contends that I am required to exclude the unlawfully seized evidence when objection is made for the first time at the trial, notwithstanding the plain terms of the rule to the contrary. This rule is but a codification of preexisting law and practice, Notes of the Committee, page 32, and refusal to exclude the evidence on the ground of defendant's failure to make seasonable objection thereto is fully supported in the following cases in the Supreme Court of the United States, United States Courts of Appeals for this and other jurisdictions, and this court: Adams v. New York, 192 U.S. 585, 24 S. Ct. 372, 48 L. Ed. 575; Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Segurola v. United States, 275 U.S. 106, 107, 48 S. Ct. 77, 72 L. Ed. 186; Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307; Bennett v. United States, 70 App.D.C. 76, 104 F.2d 209; Cromer v. United States, 78 U.S.App.D.C. 400, 142 F.2d 697, certiorari denied 322 U.S. 760, 64 S. Ct. 1274, 88 L. Ed. 1588; Moore v. Aderhold, 10 Cir., 108 F.2d 729; Taylor v. Hudspeth, 10 Cir., 113 F.2d 825; United States v. Lewis, D.C.D.C., 87 F.Supp. 970, reversed on other grounds, 87 U.S.App.D.C. 274, 184 F.2d 394. Amos v. United States, 255 U.S. 313, 41 S. Ct. 266, 65 L. Ed. 654; Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647; and Cogen v. United States, 278 U.S. 221, 49 S. Ct. 118, 73 L. Ed. 275, are not to the contrary.