Pauline Contreras Barrientes v. United States

235 F.2d 116

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 22, 1956
• Docket: 15935_1
• Status: Published

Opinions

PER CURIAM.

Found guilty by a jury of, and sentenced for, violations of the narcotics laws of the United States, the defendant is here assigning as error: (1) the admission of the narcotics into evidence over the objection of defendant that the search warrant was illegally served; and (2) the denial of her motion for an instructed verdict.

The ground of the first claim is that the officers who seized the narcotics under a search warrant did not serve it in accordance with, but in violation of, Section 3109, Title 18 U.S.C.,¹ in that, though they were not refused admittance, they nevertheless broke in the door and entered by force, and that, under Accarino v. United States, 85 U.S. App.D.C. 395, 179 F.2d 456, 465, and Gatewood v. United States, 93 U.S.App. D.C. 226, 209 F.2d 789, such service was illegal.

The ground of the second claim is that there was no evidence connecting her with possession of the narcotics, and that there was evidence: that she was not at home at the time when, according to her husband’s testimony, the package of narcotics was brought to the house; that she was not told that it was hidden in, and she did not know that it was in, the washing machine.

Of the first ground, it suffices, we think, to say that: the section invoked by defendant does not provide, the cases cited by defendant do not hold, and we have found none holding, that the use of excessive force in serving a search warrant, such as is claimed was used in this case, will invalidate a search and seizure made under it; and that, while the use of excessive, that is unnecessary, force is in any case to be deprecated, evidence obtained under a valid warrant is not thereby made inadmissible.

The second point is no better taken. The evidence shows without contradiction that when the officers pulled out of the washing machine, where the defendant was standing, the sack containing the narcotics, she told the officers, “That isn’t his, that’s mine”. It is significant, too, that it was she and not her husband who was the first to go to the washing machine, and that, as the officer walked over to the old washing machine, took the lid up, and started to reach in it, she started pulling the clothes out, and the officer said to her, “Just hold it, I will reach into the washing machine and pull the clothes out.” Upon this evidence and the other evidence in the case, including her own testimony that she claimed the narcotics to protect her husband, and that she was at the washing machine because her soiled clothes were in it and she didn’t want the officer to see them, the question of her guilt was certainly a question for the jury.

No reversible error appearing, the judgment is affirmed.

1 . “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” Section 3109, Title 18 U.S.C.