Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.
Defendant appeals from a conviction and sentence following a jury verdict of guilty on an indictment in fifteen counts charging violations, in five, of the purchase provisions of the Harrison Narcotic Act, 26 U.S.C. § 2553(a), in five others, of the sales provisions, 26 U.S.C. § 2554(a), and in the remaining five, of the Narcotic Drugs Import and Export Act, 21 U.S.C.A. § 174. He contends that evidence of damaging import, introduced over his motion to suppress, had been obtained in violation of the search and seizure provisions of the Fourth Amendment to the Constitution.
The indictment was returned on July 26, 1951, and a bench warrant for defendant's arrest issued immediately. At approximately the same time, Agent Fields, acting for the Bureau of Narcotics, procured a search warrant for a building located at 5420 Indiana Avenue, Chicago, which the government has, at all times, conceded to have been invalid.
Fields, accompanied by Kreiger, a "Treasury Enforcement Agent, assigned to the Bureau of Narcotics",*fn1 proceeded to the address specified. Neither of them and with him the warrant for defendant's arrest, but both were aware of its issuance and of the return of the indictment. Entering the building and observing defendant emerging from the first floor apartment, they approached him, notified him that he was under arrest upon the charges contained in the indictment and searched his person, finding a quantity of heroin hydrochloride and a number of bills identifiable by their serial numbers and, according to the government's evidence, used by an informer in the purchase of narcotics from defendant. Defendant stated that he was only a "roomer"; that his landlady was a respectable person and did not know his business and that, to prevent disturbance, he would show the agents where the "stuff" was, and led them to his room, pointing out a dresser drawer. There the agents found substantial quantities of heroin hydrochloride and paraphernalia usually employed by narcotic traffickers in weighing, measuring and packaging narcotics. The agents then left the premises with defendant in their custody.
Prior to trial defendant moved to suppress as evidence all articles taken from his person and his quarters on the grounds: (1) the "search warrant * * * was invalid," (2) the Agents "held no search warrant for a search of defendant's person"; (3) "the search warrant for the premises specifically excluded a search of defendant's person"; (4) the "Government Agents had no arrest warrant for defendant." In reply to the motion the government conceded that the search warrant was void but urged "that the evidence seized at the time of the defendant's arrest from his person and in the apartment * * * was seized incident to a lawful arrest."
It is well established that the insufficiency of a search warrant is immaterial when the search and seizure may be otherwise justified. Marron v. United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231; Vachina v. United States, 9 Cir., 283 F. 35, 36; Fryar v. United States, 6 Cir., 3 F.2d 598; Billingsley v. United States, 8 Cir., 16 F.2d 754, 756; Lee Kwong Nom v. United States, 2 Cir., 20 F.2d 470, 472; State ex rel. Merrell v. District Court, 72 Mont. 77, 231 P. 1107, Cf. Murby v. United States, 1 Cir., 293 F. 849, 852. "When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution." Carroll v. U.S., 267 U.S. 132 at page 158, 45 S. Ct. 280, 287, 69 L. Ed. 543. In the present case, the trial court found that the search had been made in pursuance of and as an incident to the arrest, overruled the motion and received in evidence the articles taken from defendant's person and those found in the room at 5420 Indiana Avenue.
In his argument before the trial court, counsel for defendant made no contention that the agents were not legally empowered to make an arrest but argued only that the search warrant was invalid and the search unlawful because the officers had no warrant. The contention now made is an obvious after-thought. In his statement of points relied upon on appeal, defendant, for the first time, raised the ground upon which he seeks reversal in the averment: "Narcotic agents have no authority to execute warrants of arrest." At no time prior to the trial, during its pendency, or, at its conclusion, by a motion for new trial or otherwise, was the contention presented to the trial court that such agents possess no power to arrest. Instead, after the government's concession of invalidity of the search warrant and its declaration that it was relying upon a search made in pursuance of and incidental to an arrest, defendant's position in the District Court was solely and specifically that the arrest was unlawful because the arresting officers were not in possession of the bench warrant at the time the arrest was made. At no time did he question the agents' statutory power to arrest persons charged with violation of the several acts relating to narcotic drugs.*fn2
Rule 9(c)(1) of the Federal Rules of Criminal Procedure provides, 28 U.S.C. that a warrant issued upon an indictment "shall be executed * * * as provided in Rule 4(c)(1), (2) and (3)." Rule 4(c)(1) that the "warrant shall be executed by a marshal or by some other officer authorized by law" and Rule 4(c)(3) that "the officer need not have the warrant in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible [and] * * * shall * * * inform the defendant of the offense charged and of the fact that a warrant has been issued." See United States v. Donnelly, 7 Cir., 179 F.2d 227, for application of these rules. Inasmuch as the testimony adduced during the hearing on the motion to suppress supported a finding that the requirements of Rules 4 and 9 had been complied with, i.e., that, at the time of his arrest, defendant was informed of the charges against him and advised that a warrant for his arrest had issued, and that he was, subsequently, shown the warrant and as no question of the power to arrest was raised, it is clear that the court, as apparently did defendant, assumed sub silentio that the agent's power to arrest was unquestioned.
Generally speaking, appellate courts will not recognize or determine assigned errors not previously brought to the attention of the trial court. This rule is, among other reasons, designed to effectuate the orderly administration of justice and is founded upon sound reasoning. It has been applied in a situation similar to the one before us. See Cromer v. United States, 78 U.S.App.D.C. 400, 142 F.2d 697, certiorari denied 322 U.S. 760, 64 S. Ct. 1274, 88 L. Ed. 1588. However, Rule 52(b) of the Federal Rules of Criminal Procedure provides that "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." By judicial interpretation this Rule has been read to mean not brought to the attention of the trial court. United States v. Raub, 7 Cir., 177 F.2d 312.
The application of Rule 52(b) rests, in large measure, upon the exercise of our sound judicial discretion. United States v. Jonikas, 7 Cir., 187 F.2d 240; United States v. Williams, 2 Cir., 146 F.2d 651. Even prior to the adoption of Rule 52(b), the Supreme Court gave some indication of when the discretion should be exercised in favor of review in these words: "In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, * * * notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings." United States v. Atkinson, 1936, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555.
In U.S. v. Raub, 7 Cir., 177 F.2d 312 at page 315, we said: "Such errors must, however, be substantial and capable of resulting in miscarriage of justice to warrant the reversal of a judgment of conviction based on ample evidence." We are of the opinion that the circumstances of this case are such that we are fully justified in refusing to review the alleged error. In view of the failure of defendant's counsel to advance the explicit contention here asserted, but "consciously failed to save the point" in the court below, we can not say that the error was obvious. Thus, where defendant failed to raise in the trial court the question relied upon on appeal, we refused to apply the rule inasmuch as there was no obvious error and no showing of mistake "seriously" affecting "the fairness, integrity, or public reputation of judicial proceedings." U.S. v. Jonikas, 7 Cir., 187 F.2d 240. There the evidence indicated guilt beyond all reasonable doubt. Here there was voluminous testimony of the repeated sales and possession of narcotics charged in the indictment, irrespective of the physical evidences obtained, subsequent to the indictment, in the search.
Nor can it be convincingly argued, that, in view of the overwhelming evidence over and above that of which complaint is made and defendant's failure to raise the point now relied upon below, the case is one seriously affecting the "fairness, integrity or public reputation of judicial proceedings." We shall not, in a flagrant case, give cognizance to a complaint first made to us and thus give defendant two bites at the same cherry, by declaring erroneous action of the trial court, the fault of which defendant did not see fit to make the court aware, when he had the opportunity to do so. In a similar situation the Supreme Court said: "Inasmuch as the issue would lead to exploration of the law * * * when the defense was not raised in either court below, * * * we do not undertake to determine on this record whether Di Re's arrest satisfied this provision of the New York law." United States v. Di Re, 332 U.S. 581, 588, 68 S. Ct. 222, 225, 92 L. Ed. 210. The rule that an appellate court will not notice errors not brought to the attention of the trial court is founded upon considerations of fairness to the court and to the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact. U.S. v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555. The court, in that case, after commenting upon the unusual cases where the exception to the rule (as expressed in Rule 52(b) will apply, said: "But no such case is presented here. The judgment must be affirmed for the reason that the error assigned was not made the subject of appropriate exception or request to charge upon the trial." We think the same result must follow here.
We should observe further that the evidence upon the hearing of the validity of the search was such that the trial court might very properly have believed that defendant consented to the search of the apartment and waived any objection to it, at the time it occurred. Under the Fourth Amendment the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, may not be violated. But a defendant can consent to a search of his property, and a search made as a result of such consent or with his acquiescence does not violate this amendment. Numerous instances of the application of this doctrine appear in the footnote.*fn3 Thus, in Stobble v. U.S., 7 Cir., 91 F.2d 69, 70, where defendant pointed out to the officers a box on a table and said: "There is the stuff", and picked up the box and handed it to the officer, who opened ...