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LEWIS v. UNITED STATES

decided: December 12, 1966.

LEWIS
v.
UNITED STATES



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Fortas

Author: Warren

[ 385 U.S. Page 206]

 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

The question for resolution here is whether the Fourth Amendment was violated when a federal narcotics agent,

[ 385 U.S. Page 207]

     by misrepresenting his identity and stating his willingness to purchase narcotics, was invited into petitioner's home where an unlawful narcotics transaction was consummated and the narcotics were thereafter introduced at petitioner's criminal trial over his objection. We hold that under the facts of this case it was not. Those facts are not disputed and may be briefly stated as follows:

On December 3, 1964, Edward Cass, an undercover federal narcotics agent, telephoned petitioner's home to inquire about the possibility of purchasing marihuana. Cass, who previously had not met or dealt with petitioner, falsely identified himself as one "Jimmy the Pollack [ sic ]" and stated that a mutual friend had told him petitioner might be able to supply marihuana. In response, petitioner said, "Yes. I believe, Jimmy, I can take care of you," and then directed Cass to his home where, it was indicated, a sale of marihuana would occur. Cass drove to petitioner's home, knocked on the door, identified himself as "Jim," and was admitted. After discussing the possibility of regular future dealings at a discounted price, petitioner led Cass to a package located on the front porch of his home. Cass gave petitioner $50, took the package, and left the premises. The package contained five bags of marihuana.*fn1 On December 17, 1964, a similar transaction took place, beginning with a phone conversation in which Cass identified himself as "Jimmy the Pollack" and ending with an invited visit by Cass to petitioner's home where a second sale of marihuana occurred. Once again, Cass paid petitioner

[ 385 U.S. Page 208]

     $50, but this time he received in return a package containing six bags of marihuana.*fn2

Petitioner was arrested on April 27, 1965, and charged by a two-count indictment with violations of the narcotics laws relating to transfers of marihuana. 26 U. S. C. ยง 4742 (a). A pretrial motion to suppress as evidence the marihuana and the conversations between petitioner and the agent was denied, and they were introduced at the trial. The District Court, sitting without a jury, convicted petitioner on both counts and imposed concurrent five-year penitentiary sentences. The Court of Appeals for the First Circuit affirmed, 352 F.2d 799, and we granted certiorari, 382 U.S. 1024.

Petitioner does not argue that he was entrapped, as he could not on the facts of this case;*fn3 nor does he contend that a search of his home was made or that anything other than the purchased narcotics was taken away. His only contentions are that, in the absence of a warrant, any official intrusion upon the privacy of a home constitutes a Fourth Amendment violation and that the fact the suspect invited the intrusion cannot be held a waiver when the invitation was induced by fraud and deception.

Both petitioner and the Government recognize the necessity for some undercover police activity and both concede that the particular circumstances of each case govern the admissibility of evidence obtained by stratagem ...


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