and his wife with harboring a criminal, F.B.I. agents placed his
wife under arrest and searched their apartment here. In the
course of this search, a machine gun (the evidence here sought to
be suppressed) was found in a locked suitcase in a closet in the
apartment. The complaint charging defendant and his wife with
harboring a criminal has been dropped. Several days after the
search, defendant was charged in Florida with the illegal
possession of the gun, and it is this indictment which is now
The Government relies on the rule that a reasonable search of
the person and premises of the person arrested may be made in the
course of a lawful arrest. Defendant urges that the arrest of
defendant's wife was not a lawful one. I do not find it necessary
to rule on this point, since in my opinion the search was an
unreasonable one, even assuming for the sake of argument that the
arrest was lawful.
Since the decision of United States v. Rabinowitz, 1950,
339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the reasonableness of a
search does not depend on any one criterion, but on what the
Supreme Court there described as the "total atmosphere of the
case". The opinion declined to set forth any one test, and
remarked that "The recurring questions of the reasonableness of
searches must find resolution in the facts and circumstances of
One of the facts here is that the agents in charge of the
arrest of defendant's wife and the search of his apartment knew
that defendant was being held in Florida. The conclusion that the
arrest of his wife, lawful or not, was a mere pretext to search
for some sort of evidence against defendant is inescapable, and
is confirmed by the subsequent dismissal of the harboring charge
and the bringing of the present indictment. It is further
substantiated by the general and exploratory nature of the
search, which could have had no relationship to the harboring
charge, and which was apparently made "in the hope that evidence
of crime might be found." Go-Bart Importing Co. v. United States,
1930, 282 U.S. 344, 358, 51 S.Ct. 153, 158, 75 L.Ed. 374. The use
of an arrest as a pretext for a general exploratory search is of
course one to be condemned. Go-Bart Importing Co. v. U.S.,
supra; United States v. Lefkowitz, 1932, 285 U.S. 452, 52 S.Ct.
420, 76 L.Ed. 877.
The motion to suppress the evidence will be granted.
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