Knoch, Kiley and Cummings, Circuit Judges. Kiley, Circuit Judge (dissenting).
Melsia Delaney and appellant Homer Phillips were indicted for knowingly receiving and concealing a narcotic drug in Chicago on April 24, 1964, in violation of 21 U.S.C. § 174. A jury found Mrs. Delaney and Phillips guilty. Phillips was sentenced to imprisonment for 10 years. Mrs. Delaney's motion for a new trial was granted and she subsequently pled guilty to a lesser charge.
Pursuant to a search warrant, Federal Narcotic Agents seized a large quantity of narcotic drugs in the first floor apartment at 8004 South Yale Avenue, Chicago, Illinois, at 3:00 P.M. on April 24, 1964. These drugs were discovered in a telephone book there by Agent Hill in the presence of Mrs. Delaney. Homer Phillips was not in the apartment at the time of the search and seizure.
The evidence showed that at 2:00 A.M. on April 24, 1964, Federal Narcotic Agents Hill and Pringle observed Homer Phillips driving to South Yale Avenue.*fn1 Phillips parked his car on 80th Street and entered the first floor apartment at 8004 South Yale. Ten minutes later, he left the building and drove his car to the 7100 block of South Halsted Street. Agent Hill observed Phillips hand his brother Tommie an aluminum foil package, which Tommie put in his overcoat pocket. Shortly thereafter, Johnny Littleton drove Tommie from the tavern to the 4100 block of South Federal Street. The car was then curbed by Agents Hill and Pringle, who identified themselves as Narcotics Agents. At that point, Tommie jumped from the car and ran east through the Chicago Housing Project buildings at 4101 South Federal Street. Agent Hill pursued him and saw Tommie throw an aluminum foil package over a small fence surrounding the Edward Hartigan School. Hill apprehended Tommie in an alley in the vicinity and returned him to Littleton's car, where Agent Pringle was waiting with Littleton. Hill then returned to the place where Tommie had thrown the aluminum foil package and recovered it. The package contained a quantity of white powder.
Agent Pringle searched Tommie and found no other packages on his person. After Pringle and Hill brought Littleton and Tommie to the Bureau of Narcotics, the white powder in the aluminum foil package was tested and shown to contain an opiate. Tommie was subsequently indicted. This record does not show the disposition of his case.
At 8:30 A.M., Hill returned to 8004 South Yale and kept the apartment building under surveillance until Agent Pringle arrived at 3:00 P.M. with a search warrant. Pringle and Agent Prziborowski entered the front of the building. After no one answered the doorbell of the first floor apartment, Pringle knocked on the door and announced his office and intent. There being no response, Pringle forced the door open and entered. Mrs. Delaney was then walking toward Pringle from the kitchen of the apartment. At that time, Agent Hill entered the rear of the apartment. In searching the living-room, Hill picked up the Chicago telephone directory, and a manila envelope fell from it. The envelope contained a large quantity of white powder. Mrs. Delaney denied that the envelope belonged to her. She also denied knowing Homer Phillips. The white powder was later tested at the Bureau of Narcotics and was found to contain 126 grams of heroin.
Three days thereafter, Homer Phillips was arrested by these Federal Narcotic Agents at the New Bonneville Lounge in Chicago. Phillips admitted that the heroin in the manila envelope found at 8004 South Yale belonged to him. He also admitted that he had lived at the apartment, but not recently. With reference to the manila envelope containing heroin, Phillips told Agent Pringle "Well, you know, that wasn't her [Mrs. Delaney's] stuff that you got out of my pad. That was mine."
Necessity for Hearing on Motion to Quash
Phillips first asserts that it was mandatory for the District Court to hold a hearing on his motion to quash the search warrant and suppress evidence. The motion pointed out that Phillips, as Mrs. Delaney's "boy-friend", had full right of occupancy of the first floor apartment at 8004 South Yale Avenue. His June 2, 1965, motion adopted a May 19, 1965, motion to quash filed by Mrs. Delaney. The pertinent ground of her motion was that the search warrant was improperly executed. If the testimony of Agent Pringle is credited, the entry was valid. 18 U.S.C. § 3109; Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332.
Mrs. Delaney's motion was denied on May 24, 1965, "without prejudice". On June 4, 1965, the District Court continued the case until June 23, 1965, "for trial and ruling on motion of defendant Phillips to quash search warrant and suppress evidence". This contradicts Phillips' claim that he did not renew his motion to quash and suppress because Mrs. Delaney's similar motion had previously been denied. Also, Phillips' seasoned trial counsel would not have adopted her denied motion if he considered the denial to be a complete disposition of the matter. Under Rule 41(e) of the Federal Rules of Criminal Procedure, it was within the District Court's discretion to entertain the motion to suppress at the trial instead of passing upon it before trial. Since Phillips' counsel knew that the District Court had already denied Mrs. Delaney's identical motion to quash, it was Phillips' obligation to renew the motion at the trial. Di Bella v. United States, 369 U.S. 121, 129-130, Note 9, 82 S. Ct. 654, 7 L. Ed. 2d 614; cf. Cheng Wai v. United States, 125 F.2d 915, 916-917 (2d Cir. 1942).
Our examination of the transcript of the proceedings before the District Court reveals that defendant's counsel was fully aware that the District Court had denied the belated motion of Mrs. Delaney without prejudice and that it would be incumbent upon him to raise the point again if he wished to press it. For example, the following colloquy occurred on September 21, 1965, when the case was called for trial:
"THE COURT: There is a motion to suppress in this, isn't there, that I will have to hear? Has that been denied on the face of it?
MR. PINCHAM [attorney for Homer Phillips]: Your Honor denied the motion on the face of the petition.
THE COURT: Without prejudice to listen to it in the trial of the case?
MR. PINCHAM: That is right, yes.
THE COURT: So, actually it is just a matter of trying the case.
MR. PINCHAM: That is what it boils down to."
During the November 1965 trial, neither Homer Phillips nor Mrs. Delaney raised their motions to quash the search warrant and suppress evidence. We agree with the Government that Phillips waived his right to a hearing on this motion because of failure to renew it when the District Court had granted him permission to do so. Phillips' brief concedes that he did not pursue or develop the search warrant execution issue at the trial. It is now too late to present that issue. United States v. Chieppa, 241 F.2d 635, 637-638 (2d Cir. 1957), certiorari denied, Ivicola v. U.S., 353 U.S. 973, 77 S. Ct. 1057, 1 L. Ed. 2d 1136; Butler v. United States, 153 F.2d 993, 994 (10th Cir. 1946); Morton v. United States, 79 U.S.App.D.C. 329, 147 F.2d 28, 30, Note 4 (1945), certiorari denied, 324 U.S. 875, 65 S. Ct. 1015, 89 L. Ed. 1428. Furthermore, there was no showing to warrant the granting of a hearing on the motion to suppress inasmuch as the motion contained no ...