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June 27, 1968


The opinion of the court was delivered by: YOUNGDAHL

 YOUNGDAHL, Senior District Judge.

 The defendant, Dan Perkins, is charged in a two-count indictment with violations of the narcotic laws. *fn1" This indictment arises out of the seizure of heroin capsules from the pocket of the defendant, found during a search at 941 M Street, N.W., incidental to Perkins' arrest on July 13, 1967. The defendant challenges the entry at 941 M Street, N.W., in the District of Columbia, and moves to suppress the evidence which the police obtained from the subsequent search.

 After an evidentiary hearing, Judge Murphy, of the Court of General Sessions, held the entry proper in connection with charges pending in that court. *fn2" The instant case against defendant was sent to District Judge Aubrey Robinson for trial on February 28, 1968. A full evidentiary hearing was held on the motion to suppress and Judge Robinson denied the motion, orally stating his findings for the record. Thereafter, however, the defendant requested new counsel and the trial was postponed pending appointment of new counsel and the preparation of transcripts requested by the defendant. The case came before this Court for trial on June 12, 1968, and defendant's new counsel renewed the motion to suppress.

 It was agreed by counsel that there was no need for further testimony in view of the February 28, 1968 hearing and this Court heard the arguments of counsel on the motion. The defendant waived a jury trial and it was stipulated that the defendant had committed the elements of the offenses alleged in the indictment.

 Three detectives participated in the arrests on July 13, 1967; Detective Hankins and Detective Sergeant Paul (both of the Narcotics Squad, Metropolitan Police Department) and Private Johnson (who was working with the Narcotics Squad on July 13.) About 8:00 or 8:30 A.M. on the morning of July 13, Detective Paul received information from a previously reliable informant that Warren Williams was at 941 M Street, N.W., in room number 5, and that Williams was selling heroin at that location. Paul's informant further stated that the room Williams was in was "just a room" occupied not by Williams but by another man who was allowing it to be used as a narcotics "shooting gallery" *fn3" and "that the junkies were running up and down in the place." Paul was also informed that 941 M Street was a rooming house and room 5 was on the second floor.

 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. *fn4" The detectives did not knock at the open front door. *fn5" 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. *fn6" 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.) *fn7"

 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 ...

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