Detectives Paul, Hankins and Johnson responded to the vicinity of 941 M Street. They had no warrant. Hankins and Paul stayed in a cruiser a short distance away while Johnson (who was less likely to be recognized by the suspects) was sent to place the premises at 941 M Street under observation.
Johnson started his observation at 9:30 or 9:45 and maintained continuous observance for about 45 minutes to an hour. In that time he observed five or six people go into the premises. They approached the front steps, went up, and walked through the front door; no attempt was made to knock or call anyone to that outside door.
During his surveillance Johnson also saw several persons, known as narcotics users, leave and enter a station wagon. Johnson relayed this information to Hankins and Paul and the occupants of the car were subsequently arrested on a parking lot a short distance away. A search of those arrested revealed narcotics paraphernalia consisting of needles, syringes and cookers. At the time of this arrest one of the men told a detective that the group had come from room 5 at the 941 M Street premises, that Warren Williams was there selling heroin, and that Williams was getting ready to leave shortly. The prisoners were taken from the scene by other officers and the three detectives proceeded to 941 M Street.
The building at 941 M Street is a three story row house in which people rent rooms. A series of steps leads to a landing at the front door and the front door opens into a hallway. There are rented rooms with doors on the first floor, as well as rooms on each floor. A stairway leads to the second floor hallway. Room 5, so numbered on the door, is on the second floor. Another set of steps at the end of the second floor hallway leads to the third floor. The uncontradicted testimony at the evidentiary hearing was that a person called Shannon rented room 5.
As the three detectives together approached 941 M Street a man, known as a user of drugs, was sitting on the front steps. Other than this individual, no one else was seen near the front door at the time the officers entered. Detectives Johnson and Paul testified that the front door was standing open on this summer day.
The detectives did not knock at the open front door.
They went directly to the second floor, hearing conversation from the second floor as they were on the stairs. The door to room 5 was also standing open. From the second floor hallway the officers observed four persons in the room; Williams, Shannon, Parker and the defendant - Perkins. Perkins had a hypodermic syringe in his hand and a tourniquet on his arm; the others were watching him. One of the officers identified them as police and announced the arrest. Perkins looked up and dropped the syringe. One of the detectives walked over to Perkins, again told him he was under arrest, searched him, and recovered ten gelatin capsules containing white powder in a cigarette package.
In argument before this Court, defense counsel conceded that if the officers came lawfully to their position of view outside room 5 then the subsequent seizure of narcotics from the defendant's pocket during the search incidental to his arrest was valid.
The defendant's position raises a narrow legal issue for this Court: whether the officers' warrantless entry through the front doorway of the building without announcing authority and purpose contravened the Fourth Amendment or 18 U.S.C. § 3109 (1964 ed.)
The Government argues that the entry through the front doorway of the premises is not the crucial entry and that no announcement was required at that point. The Government relies on the fact that this was not a private home, but rather, a rooming house with rented rooms on each floor. The room in which defendant Perkins was found was located on the second floor and was rented by Shannon. The Government contends that the peaceable entry through the first floor doorway into the relatively public and common hallways without announcement violated no privacy which enured to Shannon and his guests in room 5. This Court agrees.
Although several cases have discussed the general legality of means by which officers have entered buildings, few opinions have directly mentioned Section 3109 on facts like those presented here. The section was specifically before District Judge Weinfeld in United States v. St. Clair, 240 F. Supp. 338 (S.D.N.Y.1965). In St. Clair, based on accumulated information and without any warrant, narcotics agents went to an apartment building which housed five apartments. Entrance to the building was through a vestibule at street level, and the door from the vestibule to the common hallway was kept locked. While the agents were talking to the landlord, who was refusing them entrance at that door, one of the agents slipped into the building and subsequently confronted the subject when he opened his apartment door; the agent announced his authority and purpose before entering the apartment, and narcotics were subsequently seized during a search. The Court held that the announcement at the threshold of the defendant's apartment was sufficient to comply with Section 3109. 240 F. Supp. at 340.
The Court of Appeals for the Second Circuit has also had occasion to pass on a related point. In United States v. Miguel, 340 F.2d 812 (2d Cir.), cert. denied, 382 U.S. 859, 86 S. Ct. 116, 15 L. Ed. 2d 97 (1965), narcotics agents, acting on information which would indicate that a suspect was going to certain premises to obtain narcotics in order to consummate a sale, followed the suspect to an apartment building. The agents entered the lobby of the apartment house and watched while the subject took an elevator to an upper floor and arrested him in the lobby when he returned. The subject moved to suppress the narcotics found on his person on the theory that the officers were improperly in the lobby, but the Court of Appeals upheld the refusal to suppress. The court noted:
"We have been cited no authority which would include the lobby of a multi-tenanted apartment house within the 'curtilage' of each tenant. Such authority as there is points the other way."
The Court of Appeals for this Circuit has highlighted the difference between an apartment or rented room itself and the corridors of a building housing such dwellings. In Whitley v. United States, 99 U.S.App.D.C. 159, 237 F.2d 787 (1956), narcotics officers entered a three story rooming house on information from an informant and went to the third floor. Through an open door they saw a woman in the bathroom and arrested her. Several of the officers went through the bathroom window onto a porch. From that vantage point they looked into a bedroom and saw a second woman (Meredith) preparing to give herself a hypodermic injection; they entered the bedroom and found narcotics there during a search. Holding that the police were not properly in their position of view, the court said:
"Since the porch from which the police saw Meredith was not open to the public and the police reached it through a window, they had no right to be on the porch, whatever may be thought of their previous presence in the relatively public corridors of the rooming house."