
    UNITED STATES v. SMITH.
    Criminal No. 77757.
    District Court of the United States for the District of Columbia.
    Nov. 27, 1946.
    Curtis P. Mitchell, of Washington, D. C., for defendant, for the motion.
    George Morris Fay, U. S. Atty., and Edward Molenof, Asst. U. S. Atty., both of Washington, D. C., opposed.
   HOLTZOFF, Justice.

This is a motion to suppress evidence obtained by a search and seizure alleged to have been unlawful. The evidence consists of stolen linens belonging to the Pullman Company.

It appears that a police officer saw the defendant, the moving party on this motion, standing on a street corner known to be a place where criminals of certain types congregate. The officer recognized the defendant as a man whom he had previously arrested on a criminal charge. He saw money passed between the defendant and two other unknown persons. There was a suitcase lying on the sidewalk at the defendant’s feet.

As the officer’s suspicions were aroused by these circumstances, he approached the defendant and asked him to whom the suitcase belonged. He was informed that it was the property of the defendant’s sister. In reply to the officer’s further inquiry, the defendant stated he did not know the contents of the suitcase and, apparently, offered no explanation as to what he was doing with it at that particular time and place. The suitcase was unlocked. The officer opened it without permission and saw a quantity of linen with the Pullman Company mark. The officer knew that the defendant worked at the railroad yards at Union Station. The officer then seized the property,- which quite apparently had been stolen, and took the defendant into custody. The defendant was subsequently indicted on a charge of theft from a railroad car of the Pullman Company. He now moves to suppress the evidence, claiming that the search and seizure were illegal.

The Fourth Amendment prohibits only unreasonable searches and seizures. The question is, ” therefore, whether this search and seizure was unreasonable. The history of the Fourth Amendment and of this branch of the law generally shows that the particular abuse and the specific evil to which the Fourth Amendment was very largely directed consisted of exploratory domiciliary searches which had been conducted by the British and Colonial Governments prior to the Revolution. *Searches of this type were very oppressive. The purpose of the framers of the Amendment was to eliminate tyranny of this kind. It is readily realized, however, that all searches should not be banned and consequently the Fourth Amendment was directed only at those that were unreasonable.

It has been well established that a search pursuant to a search warrant is legal. A search incidental to a lawful arrest is also reasonable. These two categories, however, do not exhaust all possible types of reasonable searches. They merely represent two of the commonest classes of lawful seizures. Traditionally at common law a search for stolen goods was permissible.

In this case we have nothing that savors of oppression. There is no invasion of any premises, or any interference with the person. ***The police officer merely opened a suitcase lying on the sidewalk, because he was suspicious of the defendant’s activities and knew that the defendant was far away from his place of employment as well as a considerable distance away from his residence. The defendant disclaimed ownership of the suitcase. It would seem absurd under the circumstances of this case to suppress this evidence and' to direct that the stolen property be returned to the defendant.

I do not believe that the Fourth Amendment was intended to ban a search and seizure of this type, because I consider this search and seizure reasonable. Modern urban life presents problems different from those confronting the Founding Fathers in 1789. As the Constitution is a permanent and enduring document, it must be broadly construed in order to be adjustable to changing conditions.

I shall deny the motion to suppress the evidence. 
      
       Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746; Nueslein v. District of Columbia, 73 App.D.C. 85, 87, 115 F.2d 690; Entick v. Carrington, 19 Howell’s St.Trials 1029.
     
      
       Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543, 39 A. L.R. 790; Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409.
     
      
       Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543, 39 A. L.R. 790; Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 29 L.Ed. 746.
     
      
       Cf. In United States v. Derman, D.C., 66 F.Supp. 511, there was an invasion of the defendant’s home, while in United States v. Lagow, D.C., 66 F.Supp. 738, there was an invasion of the defendant’s place of business.
     