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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Snow, 363
Supreme Judicial Court of Massachusetts,
Argued
Decided
William A. Schroeder,
Robert Sinider, Asst. Dist. Atty., for the
Commonwealth.
Before [363
QUIRICO, Justice.
This is an
interlocutory report by a judge of the Superior Court under G.L. c. 278, s 30A,
inserted by St.1954, c. 528, ([FN2]) of five questions relating (a) to the
validity of a warrant for the search of the premises on which the defendants
were arrested, and (b) to the validity of the search and arrest of the
defendants. After holding a hearing on
the defendants' pre‑trial motions to suppress the evidence obtained in
the searches of the premises and of their persons, the judge made findings on
the factual issues raised by the motions.
He then reported his findings and five questions of law arising
therefrom for decision by this court. We
summarize the pertinent portions of the facts thus found and of the record.
On
February 20, 1970, Officer Thomas R. Matheson of the Boston Police Drug Control
Unit who had been involved in narcotics investigations for three years applied
to a District Court for a warrant to search the first floor and basement of a
building identified as the Sportsman Hair Styling Salon, situated and numbered
312 Blue Hill Avenue in the Dorchester district of Boston, for 'any narcotic
drug, article, implement or other paraphernalia used in, for, or in connection
with the unlawful possession or use of any narcotic drug,' believed to be there
'kept or deposited by Tony Biggs,' one of the defendants. [363
Officer
Matheson, together with Sergeant Doris and Officers Finnell, Cotter and
Montgomery of the Boston police, then went to the area of the premises in
question (barbershop) to execute the search warrant. They stopped within two blocks of the barbershop
and Sergeant Doris gave Officer Montgomery who was working 'undercover' two ten
dollar bills after making a note of their serial numbers. Officer Montgomery went alone to the
barbershop where he used the two bills to purchase two decks of heroin from the
defendant Biggs. Just after the purchase
Biggs went over to the defendant Snow who was in the barbershop, spoke with
him, and something passed between them.
Three or
four minutes after Officer Montgomery had left the other officers, they received
a call from him by 'walkie‑talkie' radio equipment telling them he had
just left the barbershop and describing what he had done and seen there. Sergeant Doris and the other officers went to
the barbershop and entered it within two or three minutes after receiving the
call. Officer Matheson entered first and
announced in a voice loud enough for all inside to hear that they were police
officers, that they had a search warrant, and that all persons in the place were
to remain where they were. There were
three barber chairs along the right side of the shop and six chairs for waiting
customers on the left side.
At the rear of the shop there was a stairway down to a lower level where
there were a ladies' hair salon, a coat rack and a toilet.
Before
they entered the barbershop the police knew that the defendants Biggs and Snow
were in the shop but did not know that any other persons would be there. There were approximately eight persons in the
shop at the time, including the four defendants. The defendant [363 Mass. 781] Marsh
was seated in the first barber chair and the defendant Biggs was standing at
the same chair. The defendant Snow was
seated in the first of the six chairs on the left side of the shop and the
defendant Herron in the fourth of those six chairs.
As the
police entered the barbershop, Herron ran to the rear of the shop with Sergeant
Doris in close pursuit, and while running he threw twenty‑one bags of
heroin to the floor just before the sergeant caught and arrested him. The sergeant also found eleven additional
bags of heroin in a wastebasket where Herron was standing when arrested, but he
did not see Herron put those bags there.
After
entering the barbershop the police officers allowed no one to leave and they
searched everyone present. On the
defendant Biggs's person they found three decks of heroin, and on the defendant
Snow's person they found the two ten dollar bills which Officer Montgomery had
previously used for his purchase of heroin from Biggs as described above. They founded a deck of heroin in a cost
hanging on a wall hook in the barbership and when they asked who owned the coat
the defendant Marsh admitted that it was his.
After the four defendants were arrested and taken to the police station,
the police made a further search and found six decks of heroin on Snow's person
and twenty‑four decks of heroin on Marsh's person.
As a
result of the events described above, the defendants have been charged in ten
separate indictments with the following crimes: each defendant has been charged
with the unlawful possession of heroin, each defendant has been charged with
having heroin in his possession with the intent unlawfully to seel it, the
defendant Biggs has been charged with unlawfully selling heroin to Officer
Montgomery, and the defendant Marsh has been charged with the unlawful
possession of marihuana, a narcotic drug.
([FN3])
[363 Mass. 782] We now consider the five questions of law which the judge
determined, after finding the facts described above, to be 'so important or
doubtful as to require the decision of the Supreme Judicial Court thereon prior
to trial in the interests of justice.'
Trial of the indictments was continued generally pending our decision on
the questions reported.
1. Question 1 asks whether 'the affidavit for
the search warrant . . . set forth sufficient facts to establish probable cause
for the issuance of a search warrant.'
The affidavit was signed by Officer Matheson and it includes the
following statements: 'I am a Police Officer of the City of Boston, Drug
Control Unit. . . . On 2‑‑17‑‑70 a
reliable informant who has proved reliable in the past in the arrest and
conviction of Pedro Pareda, Amado Duran, Erasmo Velasquez, Daniel Griffin and
Louis Jones. All for the sale of Heroin
and convicted within the past year. My
informant now tells me that at 312 Blue Hill Ave., Dorchester, Sportsman Hair
Styling Salon, that a man known to him as Tony Biggs is selling Narcotic Drugs,
to wit: Heroin, Marijuana, Cocaine and that Tony Biggs keeps the Narcotic Drugs
on his person or in his tool cabinet and that he also keeps a large amount of
Narcotic Drugs in the back room (first floor) and basement at the above
mentioned premises. On 2‑‑18‑‑70
and 2‑‑19‑‑70, Sgt. John Doris, Ptl. Dennis Casey and
Ptl. Thomas R. Matheson while at 312 Blue Hill Ave., observed numerous known
narcotic addicts entering and leaving the above premises. Tony Biggs is employed as a barber at the
above premises and works at the barber chiar located next to the front door at
312 Blue Hill Ave.'
The
defendants contend that the affidavit fails to meet the 'two‑pronged
test' of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, as
interpreted by Spinelli v. United States, 393 U.S. 410, 413, 89 S.Ct. 584, 21
L.Ed.2d 637, that it contain (a) a statement 'of the 'underlying circumstances'
necessary to enable the magistrate independently to judge of the validity of
the informant's conclusion' that drugs were kept unlawfully in the barbershop,
and (b) statements of the affiant officer to support[363 Mass. 783] his claim that his informant was 'credible'
or that his information was 'reliable.'
We reject both contentions.
[1]
Treating the second requirement first, '(t)he informant's reliability was
established by setting forth previous examples of his assistance in
apprehending drug offenders.'
Commonwealth v. Anderson, Mass.,[FNa] 284 N.E.2d 219, 220, and cases
cited. ([FN4])
[2] As to
the first requirement of the Aguilar and Spinnelli cases, the defendants argue
that the statements which are attributed to the unnamed informant in the
affidavit were insufficient as matter of law to constitute probable cause for
the issuance of the warrant. Such an
argument assumes, without legal foundation, that the sufficiency of the affidavit
rests entirely on the statements of the informant. It does not.
It is not necessary for this court to determine whether those
statements, standing alone, are sufficient because, even if they were
insufficient, '(i)t does not follow . . . that the search warrant was issued
without probable cause.' Commonwealth v.
Anderson, supra, at 221. ([FNB])
'The
sufficiency of the affidavit is to be decided on the basis of a consideration
of all of its allegations as a whole, and not by first dissenting it and then
subjecting each resulting fragment to a hypertechnical test of its sufficiency
standing alone.' Commonwealth v.
Stewart, 358 Mass. 747, 751, 267 N.E.2d 213, 216.
[3] The
allegation in the affidavit that on the two days preceding the application for
the search warrant three police officers had 'observed numerous known narcotic
addicts entering and leaving' the barbershop substantially corroborated the
statements of the informant. That
statement is entitled to weight in the decision of the magistrate to issue the
warrant. The statement in [363 Mass. 784] Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 588,
21 L.Ed.2d 637, that an 'allegation that Spinelli was 'known' to the affiant
and to other federal and local law enforcement officers as a gambler and an
associate of gamblers is but a bald and unilluminating assertion of suspicion
that is entitled to no weight in appraising the magistrate's decision' was
expressly rejected in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d
723. In the latter case, the court said,
at p. 583, 91 S.Ct. at p. 2081, 'We cannot conclude that a policeman's
knowledge of a suspect's reputation‑‑something that policemen
frequently know . . .‑‑is not a 'practical consideration of
everyday life' upon which an officer (or a magistrate)
may properly rely in assessing the reliability of an informant's tip. To the extent that Spinelli prohibits the use
of such probative information, it has no support in our prior cases, logic, or
experience and we decline to apply it to preclude a magistrate from relying on
a law enforcement officer's knowledge of a suspect's reputation.' In reliance on that statement in the Harris
case, we said in Commonwealth v. Anderson, supra,[FNc] 284 N.E.2d at 221, that
'we therefore perceive no reason why reliance cannot be placed on a policeman's
knowledge of the reputations as drug users of persons frequenting the
defendant's apartment in assessing the reliability of the informant's tip.'
[4] The
test of sufficiency of the allegations of the affidavit is not whether they
would justify a conviction for a crime.
Probable cause, by its very terms, deals with probabilities. It exists where the facts and circumstances
alleged in the affidavit are sufficient in themselves to warrant an impartial
magistrate to believe that an offence probably has been or is being committed.
[5]
Considering the affidavit in these cases in its entirety, and testing it by the
standards discussed above, we hold that it was legally sufficient to support
the issuance of the search warrant. We
therefore answer question 1 in the affirmative.
2. Question 2 asks whether 'the fact that no
name appears in the acknowledgment on the affidavit . . . invalidate(s) the
search warrant.
[363 Mass. 785] General Laws c. 276, s 2B, inserted by St.1964, c. 557, s 3, as
amended by St.1965, c. 384, requires a person seeking a search warrant to 'give
an affidavit in substantially the form hereinafter prescribed.' The prescribed form starts with the language:
'I, (name of applicant) being duly sworn, depose and say.' It continues with the text of the affidavit
and a line for signature by the applicant.
It then concludes with the following clause: 'Then personally appeared
the above named _ _ and made oath that the foregoing affidavit by him
subscribed is true,' and a provision for a date and the signature of the judge
or clerk of the court.
The
affidavit in these cases starts out with the statement, 'I, Thomas R. Matheson,
being duly sworn, depose and say.' This
is followed with the factual allegations and a request for the issuance of a
search warrant for the barbershop, all of which are in turn followed by the
signature of 'Thomas R. Matheson' over the printed words 'Signature of
Applicant.' It concludes with the
following clause: 'Then personally appeared the above named and made oath that
the foregoing affidavit by him subscribed is true.' Below that there is the date and the
signature of the clerk of the court issuing the search warrant.
[6] The
defendants contend that the entire search warrant is invalid because the name
'Thomas R. Matheson' was not inserted after the words 'Then personally appeared
the above named' in the clause last quoted above. Section 2B, as amended, requires only that
the affidavit be 'in substantially the form' reproduced with the statute. The affidavit in these cases is no less 'in
substantially the form' prescribed by s 2B than it would have been if the name
of the affiant had been inserted in the place suggested by the defendants. The defendants' argument on this point is
without merit. 'This is a triviality . .
. A conveyancer's precision of language
is not to be expected in the affidavit.'
Commonwealth v. Pellier, Mass.,[FNd] 289 N.E.2d 892, and cases cited
therein. The only possible reasonable
conclusion which can be drawn from [363
Mass. 786] a reading of the present
affidavit is that Thomas R. Matheson was the applicant for the search warrant,
that he signed the affidavit, and that he, as required by s 2B, as amended, appeared before the court clerk and swore
that the allegations by him subscribed were true.
We
therefore answer question 2 in the negative.
[7]
3. Question 3 asks whether 'the
provision contained in G.L. c. 94, section 213 and in the search warrant . . .
which commands officers executing a search warrant to search for 'any narcotic
drug, article, implement or paraphernalia' and if any such items are found to
seize the same 'and to arrest the person in possession thereof, together with
all persons present' . . . (violates) the Fourth and Fourteenth Amendment of
the United States Constitution and Article XIV of the Constitution of
Massachusetts as to its command that the officers 'arrest . . . all persons
present' where the place to be searched is a commercial establishment open to
the public.' ([FN5]) For the several reasons stated below, 'we
hold that this is not an appropriate case in which to require this court to
answer a question of constitutional proportions before the case has been
decided on its merits.' Commonwealth v.
Henry's Drywall, Inc., Mass., [FNe] 289 N.E.2d 852.
The first
reason is that G.L. c. 94, s 213, together with many other sections of the same
chapter dealing with drugs, was repealed effective on July 1, 1972 (see
St.1971, c. 1071, s 2; s 9, as amended by St.1972, c. 2), and a new chapter (c.
94C, sometimes referred to as the 'Uniform Controlled Substances Act') was
added. The new c. 94C does not appear to
contain any provision comparable to the language of the former c. 94, s 213,
which is involved in this question.
There is no indication in the record that there are any other cases
pending which [363 Mass. 787] might be affected by any answer we
might give to question 3.
The second
reason is that any answer which we might give to this question is not likely to
be material in the ultimate decision of these cases. John Gilbert Jr., Co. v. C. M. Fauci Co., 309
Mass. 271, 273, 34 N.E.2d 685. If we were
to hold that the portion of the now repealed s 213 which is quoted in the question
violated any or all of the cited constitutional provisions, it would not follow
that the arrest of any of the defendants would be unlawful. The reasons for this statement are evident in
the discussion of the next question below.
4. Question 4 asks whether 'the arrests made
pursuant to the search warrant of the defendants, William H. Snow, Curtis
Herron and Leon Marsh, whose names were not included in the affidavit or in the
search warrant, (were) in the facts of the instant case valid arrests.' It is not clear whether it is intended that
for the purpose of this question this court should assume that these three
defendants were arrested by the sole authority of the search warrant which did
not name them. Whether it was so
intended or not, we do not so assume. We
treat this question as asking generally whether, on the facts found and
reported by the judge, the arrests of the three named defendants were
valid. See Commonwealth v. Kelley, 358
Mass. 43, 45‑‑46, 260 N.E.2d 691.
[8][9] The
validity of the arrests did not depend solely on the validity of the search
warrant or of any particular language therein.
Each of the defendants was arrested for crimes punishable by
imprisonment in the State prison. See
G.L. c. 94, ss 205, 212 and 212A, for punishment for crimes of possession of a
narcotic drug, possession of heroin, and sale of heroin or possession thereof with intent to sell it. ([FN6])
A crime punishable by . . . imprisonment in the state prison is a
felony.' G.L. c. 274, s 1. [363
Mass. 788] If the arresting officers
in this case had sufficient information to constitute probable cause to
believe, and did believe, that any one of the defendants had committed a
felony, even though not in their presence, they had the right to arrest that defendant
without a warrant. Commonwealth v.
Phelps, 209 Mass. 396, 403‑‑406, 95 N.E. 868; Commonwealth v.
Holmes, 344 Mass. 524, 525‑‑526, 183 N.E.2d 279; Commonwealth v.
Lewis,346 Mass. 373, 382‑‑383, 191 N.E.2d 753; Commonwealth v.
Mayer, 349 Mass. 253, 255, 207 N.E.2d 686; Commonwealth v. Mitchell, 353 Mass.
426, 428‑‑429, 233 N.E.2d 205; Commonwealth v. Andrews, 358 Mass.
721, 723‑‑724, 267 N.E.2d 233.
The police were not required to possess information sufficient to
establish beyond a reasonable doubt that a defendant arrested by them had
committed a felony. It was enough if
they had information which reasonably permitted a conclusion that the defendant
had probably committed a felony.
Commonwealth v. Andrews, supra, at 723, 267 N.E.2d 233; Commonwealth v.
Pellier, Mass.,[FNf] 289 N.E.2d 892, and authorities cited.
[10] The
police had enough information to permit them reasonably to believe that all
four defendants had probably committed one or more felonies. We hold that the police had probable cause to
arrest all four defendants for such felonies without a warrant. It is not disputed that the police had
probable cause to arrest Biggs without a warrant. He had actually sold heroin to Officer
Montgomery. The other defendants contend
that there was no probable cause to arrest them without a warrant. We therefore consider their cases.
[11] After
Officer Montgomery purchased heroin from the defendant Biggs he saw the latter
go over to the defendant Snow, saw the two speak to each other, and saw something
pass between them. An illegal drug
transaction is commonly described by witnesses as including the passing of
something between two persons, with a small packet, usually called a deck,
going in one direction and money going in the other direction. Since such a transaction is illicit, the
movements are by nature furtive rather than like an open, across‑the‑counter,
commercial[363 Mass. 789]
sale of merchandise. Officer
Montgomery who had some special knowledge and experience with the unlawful drug
traffic could properly infer from what he saw in the barbershop that Snow was
probably participating in the drug sale which had just been concluded by Biggs
to Officer Montgomery.
[12][13]
The police saw the defendant Herron throw twenty‑one bags of heroin which
were in his possession to the floor while he was apparently in flight from the
barbershop. He first tries to justify
his attempted flight by claiming that the search warrant was invalid. If that argument were otherwise sound, it is
of no avail here because we have held that the warrant was valid. He then argues that the police had no right
to order persons not named in the warrant to remain on the premises. We hold that the police did have that
right. They had a warrant which
authorized them to search the barbershop for drugs and related contraband. They were entitled to take reasonable
precautions to prevent those present from attempting to conceal, destroy or
remove the contraband which was the object of the authorized search. Their requirement that all persons present
when they entered the barbershop remain where they were was a reasonable
step to insure the proper execution of the search warrant. The public right to the due and efficient
enforcement of law and execution of legal process outweighs the temporary
inconvenience to the individuals who were thus restricted in their movements in
or flights from the barbershop.
[14] In
executing the search warrant the police found a deck of heroin in the pocket of
a coat hanging on the wall of the barbershop.
The defendant Marsh admitted to the police that the coat was his. He now argues that the police had no right to
look into the coat pocket because it was in effect a search of his person which
was not authorized by the search warrant.
We reject any argument that the search of the coat hanging on the wall
was in effect a search of the person of Marsh.
United States v. Teller, 397 F.2d 494 (7th Cir.), cert. den. sub nom. Teller v.
[363 Mass. 790] United States,
393 U.S. 937, 89 S.Ct. 299, 21 L.Ed.2d 273; United States v. Johnson, 475 F.2d
977 (D.C.Cir.); United States v. Riccitelli, 259 F.Supp. 665 (D.Conn.). The warrant authorized a search of the entire
barbershop. It did not limit the police
to looking at what was in open view and thus obvious. They had the right to search anywhere within
the four walls of the barbershop where the contraband described in their
warrant might be located. They could
search the various rooms, closets or storage places, including possible
concealed storage places. They could
look on, under, behind and inside any piece of furniture, container or other
object in the described premises, lift or remove any object to facilitate their
search, and search the pockets, liners or any other parts of articles of clothing
where the objects of their search might be secreted. See Commonwealth v. Todisco, Mass.,[FNg] 294
N.E.2d 860; United States v. Teller, supra; United States v. Johnson, supra;
United States v. Riccitelli, supra.
Marsh's coat, while hanging on the wall, fell within the broad scope of
the premises permitted to be searched under the warrant. The finding of heroin in the pocket of
Marsh's coat and his admission of ownership of the coat gave the police
probable cause to arrest him without a warrant.
The fact
that heroin was found on the persons of Snow and Marsh after they were arrested
and were being searched at the police station plays no part in the
determination whether the police had probable cause to arrest them for a felony
without a warrant at the barbershop.
However, our holding that the arrests were lawful does have a bearing on
those parts of their motions to suppress which relate to the heroin found in
the police station search.
5. Question 5 asks whether the arrests of the
four defendants without a warrant were valid in the event we held the search
warrant was invalid. We have held that
the search warrant was valid and also that the arrests of the four defendants
without arrest warrants were valid. No
further answer is required to this question.
[363 Mass. 791] The cases are to stand for further proceedings in the Superior
Court consistent with this opinion.
So
ordered.
KAPLAN,
Justice (dissenting in part).
I think
the search of the overcoat of the defendant Marsh was illegal, though I must
own that the question is a close one on which there is not much cogent
authority. I would disregard the
language of the warrant about 'persons present' which is evidently a vestigial
remain of a repealed statute. Taken
merely to authorize a search of the described premises, the warrant does not
cover a search of the person of a customer sitting in a barber chair. This the court's opinion concedes. But then, I submit, the same immunity should
extend to that customer's briefcase within his arm's reach, and by reasonable
analogy,
his overcoat on a hook on the wall.
The overcoat should be considered within the customer's 'possession,'
which is to say within the ambit of his person.
Another way of looking at the case is to reason that if the warrant is
read to cover Marsh's overcoat, it was to that extent issued without probable
cause. I believe there was a breach of
Marsh's 'constitutionally protected reasonable expectation of privacy' (Harlan,
J., concerning in Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516,
19 L.Ed.2d 576), a conclusion strengthened rather than weakened by the fact
that the barbershop was a kind of public place; it invited transients who might
want a haircut rather than a 'fix.' The
nature of the locus may indeed serve to distinguish United States v. Teller,
397 F.2d 494 (7th Cir.), cert. den. sub nom.
Teller v. United States, 393 U.S. 937, 89 S.Ct. 299, 21 L.Ed.2d 273;
([FN1]) United States v. Johnson, 475 F.2d 977 (D.C.Cir.) (one judge concurring in part and dissenting
in part), and United States v. Riccitelli, 259 F.Supp. 665 (D.Conn.), cases
cited for sustaining the present search.
(FN1.)
One of the companion cases is against William H. Snow, Jr.; three are
against Tony C. Biggs (thus named in three indictments, but sometimes referred
to elsewhere in the record as 'Tony Biggs,' 'Tony Briggs,' or 'Tony C.
Briggs'); two are against Curtis Herron; and three are against Leon Marsh.
(FN2.)
Section 30A provides: 'If, prior to the trial of a person in a criminal case
in the superior court, a question of law arises which, in the opinion of the
presiding justice, is so important or doubtful as to require the decision of
the supreme judicial court thereon before trial, in the interest of justice, he
may report the case so far as necessary to present the question of law arising
therein; and thereupon the case shall be continued for trial to await the
decision of the supreme judicial court.'
(FN3.)
The judge's findings make no reference to marihuana. However, no part of the decision of these
cases turns on whether marihuana was found in the alleged illegal searches of
the premises or of the defendants.
FNa.
Mass.Adv.Sh. (1972) 1145, 1146.
(FN4.)
Footnote 1 of the Anderson decision indicates that the affidavit which
we there held sufficient for the issuance of a search warrant referred to '(a)n
informant who has proved reliable in the past in connection with the arrest and
conviction of Danny Griffin, Louis Jones . . . and others for the illegal sale
of Narcotic Drugs.' The affidavit in the
present cases describes the unnamed informant as one 'who has proved reliable
in the past in the arrest and conviction of . . . Daniel Griffin and Louis Jones' and three
other named persons.
(FNB.)
Mass.Adv.Sh. (1972) at 1146‑‑1147.
FNc.
Mass.Adv.Sh. (1972) at 1147.
FNd.
Mass.Adv.Sh. (1972) 1761, 1763‑‑1764.
(FN5.)
In Commonwealth v. Pellier, Mass.
(Mass.Adv.Sh. (1972) 1761, 1764‑‑1765, fn. 3), 289 N.E.2d
892, we said: 'The warrant in terms authorized search of 'any person or persons
present who may be found to have such property in his her or their possession
or under his her or their control or to whom such property may have been
delivered.' This lacks specificity and is
of dubious meaning.'
FNe.
Mass.Adv.Sh. (1972) 1689, 1693.
(FN6.)
All of these statutes were in effect on the date of the offenses charged
against the defendants, but they have since been repealed by St.1971, c. 1071,
s 2.
FNf.
Mass.Adv.Sh. (1972) 1761, 1765.
FNg.
Mass.Adv.Sh. (1973) 613.
(FN1.)
The Teller case rested in part on Harris v. United States, 331 U.S. 145,
67 S.Ct. 1098, 91 L.Ed. 1399, which was later qualified in Chimel v.
California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.