Schnackenberg, Castle and Swygert, Circuit Judges. Castle, Circuit Judge (dissenting).
SCHNACKENBERG, Circuit Judge.
Johanna Rachel, defendant,*fn1 appeals from a judgment of the district court based upon a finding of guilty of violation of 26 U.S.C.A. §§ 4741(a) and 4744(a) (1), as charged in an indictment, following a trial without a jury.*fn2
At the appropriate time defendant filed a petition in the district court to suppress certain evidence on the ground that, on May 9, 1964, she was arrested and a search made of the bedroom which she shared with one Louis Bartemio, in a house in Melrose Park, Illinois, all without warrant, in violation of the fourth amendment to the constitution of the United States. A hearing was conducted on this petition, which the court denied.
It appeared from the testimony of defendant that at the relevant time she was 24 years old and had been employed since she was 12 or 13 years of age; that on May 9, 1964 she was living at 1314 Broadway, Melrose Park, in the home of Mr. and Mrs. Powers, whom she had known since the age of 9 years. She was there temporarily, because her landlord in a Melrose Park apartment made her elect to give up her dog or leave. She and Bartemio had been living together.
According to the testimony of narcotics agent Voll and secret service special agent Plichta, they, in company with another narcotics agent and a number of secret service agents, went to the Powers home at 6 A.M. on May 9, 1964, on the supposition that they were to assist in arresting Bartemio for a violation of counterfeiting laws there being no warrant issued at that time for the arrest of defendant. They gained access to the house. Voll testified that when he entered through a side door he walked through the living room and there saw defendant, Bartemio and Mr. and Mrs. Powers, from whom Bartemio and defendant were subletting a bedroom.
Voll said he had gone out to arrest Bartemio on a suppressed indictment for counterfeiting. He was seated in the living room, wearing trousers, but no shirt. Voll believed that Bartemio was not handcuffed "at that time". Defendant wore a house robe over her pajamas.
The other four agents were in the house, but not all in the living room. Some were searching for counterfeiting paraphernalia. Reduced to narrative form, Voll testified:
"* * * We had been told at our briefing meeting that after the persons were arrested to look for anything pertaining to counterfeiting matter. I was not looking for anything. I relieved the agent that was in the front room, and the Secret Service agent so that he could search. I was standing in the front room with the four people under arrest and watching them. I was in the living room with these four people a few minutes, at which time Agent Plichta called me into the bedroom which is right off the living room. I believe the other agents were conducting a search of the remainder of the house. They may have looked in the basement. I believe they looked in the other rooms of the house. They may have been opening drawers. I did not see any drawers being opened. I also searched for counterfeiting paraphernalia. I searched, the bedroom, and the immediate area, the dining room and the living room. I saw one bedroom but I think there were two or three. I saw and searched one. * * * (Emphasis supplied.)
Voll added that " I had originally been assigned to watch the prisoners." (Emphasis supplied.)
Referring to special secret service agent Plichta, Voll testified that Plichta called him into said bedroom about ten minutes after he had gone into the living room to watch the prisoners, and he searched it and determined that the clothing in the closet belonged to defendant. He testified that he believed another agent came back to watch the prisoners. In the bedroom Plichta showed Voll a newspaper containing marijuana. Voll did not at that time call in any of the people seated in the living room. A few minutes lated he called Bartemio "in from the other room". He then called the landlord in, spoke to him and "let him go back into the living room". He added:
"* * * We talked with the women out in the front room, both of them. At that point, I retrieved the marihuana in the paper bag, the shopping bag with the articles of clothing that were in the bag. * * * I then helped Plichta search the bedroom. * * * We searched the room thoroughly. * * * We were in there quite a while. It may have been an hour."
The district court in finding 7 found that defendant was arrested after the search of the bedroom had been made and a secret service agent saw the bag containing women's clothing and a purse, there being beneath the clothing a package containing marijuana. In finding 8 it found that officers entered the premises with the intention of arresting Bartemio and the search was incidental thereto.
Defendant however contends that she was arrested immediately upon the entry of the agents to the premises and that the ...