
    UNITED STATES of America v. William P. GREGORY and Albert Sumpter, Defendants.
    United States District Court S. D. New York.
    Jan. 31, 1962.
    Charles B. Rangel, Asst. U. S. Atty., New York City, for the United States.
    La Muriel Morris, New York City, for William P. Gregory.
    Joseph I. Stone, New York City, for Albert Sumpter.
   WEINFELD, District Judge.

Upon the conclusion of the hearing on the defendants’ motion to suppress evidence, the Court denied that part which related to a paper bag and its contents found alongside of the car in which the defendants were seated immediately prior to their arrest in front of the hotel where the defendant Gregory resided.

Decision was reserved on the motion of Gregory, insofar as it related to the subsequent search of his apartment in the hotel and the seizure of heroin therein.

The parties are in agreement that the disposition of the motion turns on whether or not there was a valid consent to search the apartment, since no warrant therefor had been obtained. Such consent must be established by clear and convincing evidence and it must appear that there was no duress, actual or implied. Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Judd v. United States, 89 U.S. App.D.C. 64, 190 F.2d 649, 651 (1951); Bolger v. United States, 189 F.Supp. 237, 252-253 (S.D.N.Y.1960), aff’d, Bolger v. Cleary, 293 F.2d 368 (2d Cir. 1961).

Upon a review of all the testimony, the Court’s hearing notes, an appraisal of the witnesses’ demeanor, and based upon all the surrounding facts and circumstances, the Court is not persuaded that the Government has sustained its burden of proof that the defendant knowingly and voluntarily waived his constitutional right and consented to the search of his apartment. The alleged consent, according to the Government agents, was given by the defendant immediately after his arrest on the sidewalk outside the hotel, where he occupied a suite, the entrance to which had been plugged for nonpayment of rent. According to the agents, Gregory upon his arrest was asked if he had more “stuff” in his room, to which he responded in the negative, whereupon the agent said he would like to look and the defendant replied, “you can look if you like.” The defendant, in the custody of arresting agents, then entered the hotel where (still according to the Government agents) he asked the hotel clerk for the key to his apartment, paid something on account of the past due rent, and eventually a key was made available to open the plugged lock. The agents went upstairs with the defendant and made a search of the apartment and readily found heroin on a shelf in a closet. The agents’ version that they had informed the hotel clerk that they had permission to search Gregory’s apartment, and that they had asked Gregory to verify that in fact such permission had been granted, is not supported by the hotel clerk’s testimony. There are other variances as to material matters between the agents’ testimony and that of the hotel clerk — this apart from the fact that the defendant denies the conversation wherein it is alleged he consented to the search, and also disputes the circumstances under which entry was gained to the apartment.

Aside from the material variances as to what transpired before the hotel clerk, the alleged consent under the facts and circumstances here presented — a defendant at once denying that narcotics are in his room and at the same time agreeing to a search which obviously must yield narcotics — is not in accord with common experience. Cf. Nelson v. United States, 93 U.S.App.D.C. 14, 208 F.2d 505, 515 (1953); Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649, 651 (1951); Ray v. United States, 84 F.2d 654, 656 (5th Cir. 1936).

Further, even if the agents’ version be accepted, acquiescence which is resignation — a mere submission in an orderly way to the actions of arresting agents — is not that consent which constitutes an unequivocal, free and intelligent waiver of a fundamental right. Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819, 820 (1954); Catalanotte v. United States, 208 F.2d 264 (6th Cir. 1953); United States v. Gross, 137 F.Supp. 244 (S.D.N.Y.1956); United States v. Alberti, 120 F.Supp. 171 (S.D. N.Y.1954); United States v. Sully, 56 F.Supp. 942 (S.D.N.Y.1944); United States v. Hoffenberg, 24 F.Supp. 989 (E.D.N.Y.1938); United States v. Marra, 40 F.2d 271 (W.D.N.Y.1930).

Accordingly, the motion to suppress with respect to evidence obtained in the apartment of the defendant Gregory during the course of the search is granted. Since the property is contraband, it shall be disposed of in accordance with the law.  