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April 4, 1957

Ernest J. JACKSON, James Earl Jackson

The opinion of the court was delivered by: KEECH

This case was tried by the court without a jury, the defendants and their counsel having, in open court, waived trial by jury. A pre-trial motion to suppress was heard and denied by Judge Tamm, but the motion was renewed at time of trial and forms the principal basis of the defendants' motion for a judgment of acquittal.

The court is aware that there is a difference of opinion as to whether a ruling on a motion to suppress prior to trial is binding upon the trial court. Our Court of Appeals had not ruled squarely on this point. In Gatewood v. United States, 93 U.S.App.D.C. 226, 230, 209 F.2d 789, 793, the Court stated, 'Were it necessary to a decision here, we should be inclined to hold, as we intimated in the Cefaratti case, that under Rule 41(e) a pretrial denial of a motion to suppress, made after indictment, is not binding on the trial judge.'

 The trial court held to the contrary in United States v. Jennings, D.C., 19 F.R.D. 311, 312, quoting from Waldron v. United States, 95 U.S.App.D.C. 66, at page 70, 219 F.2d 37, at page 41, in which it is said:

 'It seems clear to us that a ruling on a motion to suppress evidence becomes a controlling rule in the case just as does a ruling made during a trial. * * * Once the court has disposed of a point concerning the admission or exclusion of evidence, litigants must proceed to try the case accordingly.'

 This statement, however, does not deny the right of a trial judge to reverse another judge's pre-trial denial of a motion to suppress when, upon the evidence adduced at the trial, he finds that there has been an unconstitutional invasion of the defendant's rights by the search and seizure. In the Waldron case, the Court held merely that a defendant does not waive his objection to the admission of evidence obtained by an illegal search by failing to object again when the evidence is offered at the trial, if a pre-trial motion to suppress has been made and denied. At page 70 of 95 U.S.App.D.C., at page 41 of 219 F.2d, the Court stated further:

 '* * * Of course a trial court may reverse itself on a point during trial, but that possibility does not create an obligation on the part of counsel constantly to renew their contentions.'

 It would appear to this court that the rule is no different where the pre-trial motion to suppress and the trial are before different judges.

 In the instant case, however, whether the pre-trial ruling be held binding upon the trial court, or whether the trial court be permitted to rule again on the legality of the search and seizure, the result is the same.

 Briefly stated, the evidence disclosed the following facts: The narcotics agents for some months prior to the arrest had been observing the activities of the two defendants at various addresses in the District of Columbia, including premises 23 Ninth Street, N.E. Both defendants had been observed frequently in the company of known addicts and persons known to be in the narcotics traffic. The agents had information that James maintained the room at 23 Ninth Street, N.E., for the purpose of storing narcotics, and Ernest had been seen entering the premises.

 Some time during the morning of October 5, 1956, Detective Panetta of the Narcotics Squad of the Metropolitan Police Department, received information from a reliable informer, Doris Suter, who was then living with the defendant James at 1443 Girard Street, N.W., that Ernest J. Jackson had gone to New York to procure narcotics, and that James was waiting at 1443 Girard Street for Ernest to call him on his return from New York. This information was relayed to Agent Wilson of the Federal Bureau of Narcotics. Thereafter, Ernest was kept under observation in New York City by Agent Dukas, from about 4:30 to 7 p.m., when the agent lost the car operated by him in the vicinity of the Lincoln Tunnel. Agent Dukas then informed the Washington Field Office that Ernest had left New York, en route back to the District of Columbia. About midnight Agents Wilson, Gabrys, Andrews, and Thompson, accompanied by Detectives Panetta and Holcomb, went to Chillum, Maryland, where the Baltimore-Washington Parkway enters the District of Columbia, in order to intercept Ernest upon his return to Washington. They remained there until about 2:30 a.m., October 6, separating to go to different points in the District where Ernest might be expected. Agent Andrews, on his way to check Ernest's home, was passed by him, driving a Ford automobile bearing the license numbers which the agents had been given. He followed the car to near Ninth and A Streets, N.E., where Ernest parked it, observed Ernest go inside premises 23 Ninth Street, N.E., at about 2:54 a.m., and a few minutes later saw James enter the building.

 The other officers and agents joined Agent Andrews and kept the house under observation. While they were waiting, Detective Panetta, one of the arresting officers, telephoned the informer and was advised by her that James had received a call from Ernest to meet him at the Ninth Street room, where they could 'cap up', that is, put the heroin in capsules for retail sale. At about 4:20 a.m. the two defendants came out and got into Ernest's car. As soon as they started off the agents and detectives followed in two automobiles, closing in on the defendant's car when it had gone about half a block. The two defendants were placed under arrest, removed from the car, and searched briefly. James had in his possession 130 capsules containing a heroin hydrochloride mixture. Ernest on being arrested exclaimed: 'I'm clean. I'm clean. You haven't got anything on me.' The initial search revealed that each of the defendants had a key to the front door of 23 Ninth Street, Ernest's door key being recovered from the key ring in the ignition of his car. The officers and agents then returned immediately to the Ninth Street premises with the defendants, unlocked a padlock on the door of the room rented by James, for which both defendants had keys, and upon a search of the room found in a television set an additional 244 capsules also containing a heroin hydrochloride mixture. The officers had neither arrest nor search warrants.

 As to the validity of the arrests: The rule is that a police officer may arrest without a warrant one believed by him on reasonable cause to have committed a felony. Carroll v. United States, 267 U.S. 132, 156, 45 S. Ct. 280, 69 L. Ed. 543; McQuaid v. United States, 91 U.S.App.D.C. 229, 231, 198 F.2d 987, certiorari denied 344 U.S. 929, 73 S. Ct. 499, 97 L. Ed. 715. 'Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trust-worthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.' Brinegar v. United States, 338 U.S. 160, 175-176, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879. Probable cause may be based in part upon hearsay, Seymour v. United States, 85 U.S.App.D.C. 366, 177 F.2d 732, or wholly upon hearsay if the information is received from a known informer, reasonably believed to be reliable, Wrightson v. United States, 98 U.S.App.D.C. 377, 236 F.2d 672.

 In the instant case, Doris Suter, the informer, although known to be a narcotic addict, was also known to be living with one of the defendants, and she had upon prior occasions furnished reliable information upon which other police officers had acted. Her information as to Ernest's presence in New York, his return therefrom by automobile, and his arrangement to meet James at the Ninth Street room upon his return, all had proved true, to the officers' knowledge prior to the arrests. Hence, her information that Ernest was bringing back narcotics was reasonably to be relied upon, and that hearsay information, plus the agents' own observation of the activities of Ernest and James over a period of months, constituted probable cause for the ...

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