The search was not unreasonable because the officers had waited to make the arrests when the defendants left the rooming house, rather than breaking in and looking through the building for James' room, a course of action which might have given the defendants an opportunity to destroy the contraband or to escape.
It has been argued by the defense that the officers and agents had ample opportunity to obtain a search warrant because they had received, many hours prior to the arrests, information as to the expected importation of narcotics into the District of Columbia by Ernest and that James maintained the Ninth Street room for the purpose of storing narcotics. It must be pointed out that until the officers knew Ernest had returned to the District from New York, they had no ground to believe he was presently in possession of narcotics in the District of Columbia or that there were presently narcotics in the Ninth Street room or in Ernest's car in the District of Columbia. They were not aware of Ernest's return until approximately 3 a.m., and the arrests were made about 4:20 a.m.
It is the view of this court that the hour of the early morning, the type of evidence involved, which was susceptible of quick disposal, the fact that James' room was in a rooming house, with a number of people residing therein, who had possible access to the room, all made it unreasonable and possibly ineffective to attempt to secure a search warrant.
Furthermore, assuming the officers had time to procure a search warrant, they were not bound to do so, if the search was otherwise reasonable. As stated in United States v. Rabinowitz, supra, 339 U.S. at page 65, 70 S. Ct. at page 435:
'A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystallized into a sine qua non to the reasonableness of a search. It is fallacious to judge events retrospectively and thus to determine, considering the time element alone, that there was time to procure a search warrant. Whether there was time may well be dependent upon considerations other than the ticking off of minutes or hours. The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential.'
As to Count 1, relating to the defendant James Earl Jackson alone, I find the government has proved beyond a reasonable doubt that such defendant was in possession of the narcotics described in that count, in the District of Columbia, that they were not in or from the original stamped package, and that there was no legal explanation of such possession. Upon the statutory presumption arising from possession of such narcotics, I find the government has proved beyond a reasonable doubt the defendant James Earl Jackson guilty of facilitating the concealment of the same heroin hydrochloride, knowing it to have been illegally imported into the United States, as charged in Count 2.
As to Counts 3 and 4, relating to the defendants James Earl Jackson and Ernest J. Jackson, I find the government has proved beyond a reasonable doubt that said defendants were in constructive possession of the narcotics described in those counts, that they were not in or from the original stamped package, that there was no legal explanation of such possession, and that the defendants facilitated the concealment of the heroin hydrochloride, knowing it to have been illegally imported into the United States.
I therefore find each defendant guilty as charged, and said defendants will stand committed. Their respective cases will be referred to the Probation Officer for presentence report.
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