author: OAKES, Circuit Judge:

text:
    William RIVERA, Appellant, v. FARRELL LINES, INC., Appellee.
    No. 346, Docket 72-1202.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 17, 1973.
    Decided Feb. 15, 1973.

      Charles Sovel, New York City (Abraham E. Freedman, New York City, on the brief), for appellant.
    Robert A. Lilly, New York City (Lilly, Sullivan & Purcell and Steven L. Bar-kan, New York City, of counsel), for ap-pellee.
    Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.
   OAKES, Circuit Judge:

This appeal is from an order of the district court denying appellant’s post-trial motion for a new trial on the issue of damages or, in the alternative, on all issues. We agree that it was error for the district court to deny the motion and we reverse and remand for a new trial on all issues.

Appellant was employed as a mess man on the S.S. African Sun, an American flag merchant ship owned and operated by appellee. His duties included serving meals to the vessel’s crew. This work often took him to the crew pantry, which was located on the main deck between the crew mess hall and the ship’s main galley and in which desserts and other items needed during the course of a meal were stored.

From at least one previous voyage on the African Sun appellant was aware of an ever present difficulty working in the crew pantry. An inch or so of soapy water would back up from the floor drains, making the floor wet and slippery. The back-up resulted from water draining from the officers’ pantry directly overhead and then filling the drains in the pantry below. The condition had often been reported to the ship’s officers but had gone uncorrected.

During the evening meal of September 9, 1969, one of the crew members asked for ice cream for dessert, and appellant went to the pantry to fetch it. As he returned to the mess hall he slipped and fell on the wet pantry floor. The fall resulted in injury to his back.

Appellant brought suit under the Jones Act, 46 U.S.C. § 688, to recover for his injury. The defense was that appellant was injured as a result of his own contributory negligence, principally consisting of his continued work in the pantry despite his being well aware of the dangerous condition of the floor. To appellant’s counsel this defense, although named contributory negligence, sounded suspiciously like the defense of assumption of risk, long eliminated from maritime injury law by statute. At the conclusion of the evidence he therefore moved to strike the defense but his motion was denied.

The court then submitted the case to the jury which returned a general verdict and answered four special interrogatories. The interrogatories revealed that the jury found that an unseaworthy condition existed in the ship’s pantry; that appellee was negligent on the day of the accident; that the unseaworthiness and negligence played a part in bringing about appellant’s injury; and, most important for present purposes, that appellant was contributorily negligent. Under the applicable comparative negligence doctrine, see 35 Stat. 66 (1908), 45 U.S.C. § 53 (1946), incorporated by reference in 41 Stat. 1007 (1920), 46 U.S.C. § 688 (1946), the finding of contributory negligence went to reduce appellant’s recovery. Since no specific finding was made as to the total amount of damages that would have been awarded appellant absent any contributory negligence on his part, it is impossible to know how much appellant’s general verdict of $15,000 was affected by the finding.

Following the verdict, appellant moved for a new trial on the ground that there was no evidence of contributory negligence and the issue was thus improperly submitted to the jury. This appeal followed the denial of that motion.

The distinction between assumption of risk and contributory negligence is well established. In common law days the knowledgeable acceptance by an employee of a dangerous condition when and if such acceptance was necessary for the performance of his duties was assumption of risk. 2 F. Harper & F. James, The Law of Torts, § 21.4 (1956). Contributory negligence, on the other hand, connotes some careless act or omission on the part of the employee over and above that knowledgeable acceptance. Mumma v. Reading Co., 247 F.Supp. 252, 256-257 (E.D.Pa.1965). As the defense of assumption of risk has been abolished by statute — indeed, “every vestige” of the doctrine “obliterated,” Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 58, 63 S.Ct. 444, 87 L.Ed. 610. (1943) — the first issue before us is whether the charge permitted assumption of risk to go to the jury in the guise of contributory negligence.

The only theory of contributory negligence the record reveals that was both argued by appellee’s counsel in summation and charged to the jury by the court was the argument that appellant was careless in moving in and about the pantry, knowing the sloppy condition of the floors. This theory, however, was really assumption of risk masquerading under another name, because it allowed a finding of contributory negligence on the strength of appellant’s knowledge that a dangerous condition in his line of duty existed and his working in that line of duty. Evidence of an act of negligence other than appellant’s knowledge of the dangerous condition in the pantry was not, though it should have been, required by the court’s charge in this ease. DuBose v. Matson Navigation Co., 403 F.2d 875, 878 (9th Cir. 1968); Smith v. United States, 336 F.2d 165, 168 (4th Cir. 1964); Mumma v. Reading Co., supra. See also Restatement (Second) of Torts § 496A, comments d and e at 562-65 (1965). Thus the verdict must be set aside since the finding of contributory negligence may well have been based on this error in the charge.

The court also charged the jury that appellant might have been contributorily negligent by not having “the common sense to go and say to somebody in charge, ‘Look, this has got to be cleaned up; I won’t work there until it is done.’ ” There have been holdings that failure to warn a superior officer of a dangerous condition can constitute contributory negligence on the part of a seaman and diminish his recovery for injuries suffered. Mroz v. Dravo Corp., 429 F.2d 1156, 1164 (3rd Cir. 1970); DuBose v. Matson Navigation Co., supra, 403 F.2d at 879. But those cases involved conditions which almost imperceptibly and over a long period of time led to an illness suffered by a single seaman. The danger they presented was not immediately obvious to superiors. See Mroz v. Dravo Corp., supra, 429 F.2d at 1164 (gas and smoke gradually leading to breathing defects); DuBose v. Matson Navigation Co., supra, 403 F.2d at 876-877 (light bumps on leg from kitchen workers leading to a cyst). Here, the danger from the wet and sloppy floor was open and obvious to anyone — including officers — who cared to look. Furthermore, unrebutted evidence presented at trial established that prior to the accident numerous complaints about the situation in the pantry had been made to no avail — -though not necessarily by appellant. See Mumma v. Reading Co., supra, 247 F.Supp. at 254. It cannot be known whether further complaint by appellant would have resulted in correction of the drain defect in time to avoid the accident or might on the other hand have provoked retributive treatment from his superior officers. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 430, 59 S.Ct. 262, 83 L.Ed. 265 (1939). If this theory of contributory negligence is submitted to the jury on retrial at all, it should be done so only with a caveat that the appellant was not duty bound to perform a futile act.

A third theory of contributory negligence was that appellant should have mopped up the wet pantry floor before crossing it. This theory was, however, neither argued by appellee in summation nor specifically mentioned in the court’s charge. There was evidence that appellant or another seaman cleaned up the pantry floor. But there was also unrebutted evidence that even after the pantry floor was mopped the back-up from the defective drain would simply recreate slippery ooze. Appellee, who had the burden of establishing appellant’s contributory negligence, made no showing that the floor in fact had not been mopped by appellant on the day of the accident or that the wet, sloppy condition would not quickly reoccur after it was cleaned up. It is our view that there was not enough evidence on this theory of contributory negligence to create a jury question.

The final theory of contributory negligence urged by appellee to support the jury’s verdict is that appellant unreasonably went to the pantry to get the requested ice cream when he could have gone around the pantry and to the galley and thereby avoided the accident. To support this, there was evidence that ice cream was stored in the galley as well as the pantry. But this alternate route theory, while relied on by the trial judge in denying appellant’s post-trial motion, was not argued by the appellee in summation nor specifically charged to the jury. Had appellant been given some notice of this theory, he points out, he would have presented evidence showing that mess men were not allowed to go into the galley during meals for fear that they would interfere with the work of the cooks and that this is the very reason desserts were stored in the pantry. He might also have shown how difficult this would have been in connection with the performance of his work under the circumstances. To allow a finding of contributory negligence on the basis of evidence which was at best incomplete and on a theory of which there was no real notice to the appellant could substantially prejudice him. On remand, doubtless the evidence of both sides of this issue will be fully presented.

A question remains, however, whether the new trial should cover all issues or be limited to the issues of contributory negligence and damages. Fed.R.Civ.P. 59(a) permits a remand for a partial new trial. Cf. Mason v. Mathiasen Tanker Industries, Inc., 298 F.2d 28, 32-33 (4th Cir.), cert. denied, 371 U.S. 828, 83 S.Ct. 23, 9 L.Ed.2d 66 (1962). Since we are left in the dark as to what the total award would have been absent the finding of contributory negligence and the extent to which that finding affected the verdict, as well as to whether there will be such a finding on a proper charge, we remand for a new trial on all issues. Caskey v. Village of Wayland, 375 F.2d 1004, 1009-1010 (2d Cir. 1967); 3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1307 at 386 (Wright ed. 1958).

Reversed and remanded for a new trial on all issues.

      . 35 Stat. 66 (1908), 45 U.S.C. § 54 (1946) (railroad employees), as amended 53 Stat. 1404 (1939), 45 U.S.C. § 54 (1946), made applicable to seamen by 41 Stat. 1007 (1920), 46 U.S.C. § 688 (1946); cf. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265 (1939); Carter v. Schooner Pilgrim, Inc., 238 F.2d 702, 705 (1st Cir. 1956). In The Arizona v. Anelich, 298 U.S. 110, 122, 56 S.Ct. 707, 80 L.Ed. 1075 (1936), the Court pointed out that assumption of risk had not been a defense in maritime law even prior to the Jones Act. See G. Gilmore & C. Black, The Law of Admiralty 299 (1957).

        . Although Mumma arose under the Federal Employers’ Liability Act, the provisions of the FELA abolishing defenses formerly available to employers are applicable to seamen by virtue of the Jones Act. See generally G. Gilmore & G. Black, supra note 1, at 296-98. Thus, Mumma’s distinction between contributory negligence and assumption of risk is applicable to this case.

      . “If he knew the conditions which he claimed two inches of water, an inch and a half of water on the deck, did he take extra care?' (Emphasis supplied.)

      . The court charged that if the jury accepted the appellee’s contentions the appellant “was guilty of carelessness in persisting in moving in and out of this pantry without more caution as to where he walked and how he walked and how he handled himself.”

      . Special interrogatories that — properly explained — would eliminate some of the confusion for a reviewing court or the trial court determining post-trial motions might include:
      1. Do you find that plaintiff has established his claim that the defendant was negligent and that its negligence was a proximate cause of plaintiff’s accident? (Answer yes or no.) ........
      2. Do you find that plaintiff has established his claim that the ship African Sun was in an unseaworthy condition and this unseaworthiness was a proximate cause of plaintiff’s accident? (Answer yes or no.) ........
      3. If the answer to either Question 1 or 2 above is “yes,” what is the total amount of damages to plaintiff? Answer in dollars and cents. $........
      4. If the answer to both Questions 1 and 2 is “no,” your verdict is for the defendant, and you should put an “X” here, and you need not answer any further questions.........
      5. In the event you have found above that the plaintiff is entitled to recover, do you find that the defendant has established its claim that plaintiff was himself negligent and that negligence was a proximate cause of the accident. (Answer yes or no.) ........
      6. If the answer to Question 5 is “yes,” what percentage did plaintiff’s fault so contribute? ........ (If the answer to question 5 is “no,” do not answer this question. If you entered a percentage on this question, fill in its equivalent dollar amount here: $.........)
      7. Subtract the dollar amount stated in Question 6 from the total amount of damages stated in Question 3 and enter here the difference, which will be the net amount of damages you find plaintiff is entitled to recover.
      Question 3 total $........
      —Question 6 amount $........
      Net recovery $........


source: Caselaw Access Project

author: LUMBARD, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America ex rel. Milton RIVERA, Relator-Appellant, v. Charles L. McKENDRICK, as Warden of Wallkill State Prison, Ulster County, New York, Respondent-Appellee.
    No. 306, Docket 72-1701.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 12, 1973.
    Decided Feb. 15, 1973.

      John R. Hupper, New York City (J. Barclay Collins, New York City, on the brief), for appellant.
    Lillian Z. Cohen, Asst. Atty. Gen. (Louis J. Léfkowitz, Atty. Gen. of State of New York, and Samuel A. Hirshow-itz, First Asst. Atty. Gen., on the brief), for appellee.
    Before LUMBARD, KAUFMAN and MANSFIELD, Circuit Judges.
   LUMBARD, Circuit Judge:

Milton Rivera appeals from an order of the Southern District, dated April 19, 1972, which denied, after a hearing, his petition for habeas corpus. We affirm.

Rivera was convicted of robbery, assault, and possession of a dangerous weapon after trial before a jury in Kings County in 1965. On October 21, 1969 Rivera filed a petition for habeas corpus, alleging that his state court conviction, “which was based solely on the identification testimony of two victims of the crimes, was obtained in violation of due process of law, because the victims’ in-court identification of Rivera was tainted by impermissibly suggestive pretrial identification procedures used by the police.” U. S. ex rel. Rivera v. McKendrick, 448 F.2d 30, 31 (2d Cir. 1971), cert. denied 404 U.S. 1025, 92 S.Ct. 678, 30 L.Ed.2d 675 (1972). See Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970). Judge McLean denied the petition without holding an evidentiary hearing. Rivera appealed from this summary denial and we reversed, finding that “the totality of circumstances surrounding the out-of-court confrontations in this case — the photographs and then the one-man show-up twelve days after the crime— lead us to conclude that the pre-trial identification procedures used here were unnecessarily suggestive and conducive to mistaken identification.” United States ex rel. Rivera v. McKendrick, supra at 34.

Because the record was inadequate for a determination of whether the witnesses’ in-court identification was irreparably tainted by these procedures, we remanded the case to the district court for an evidentiary hearing on this matter.

As a full statement of the facts is contained in our opinion on the prior appeal, see United States ex rel. Rivera v. McKendrick, supra, we here repeat only so .much as is necessary: On March 5, 1965, two men, one dark-skinned and the other light-skinned, robbed a grocery store in Brooklyn. Two people were in the store at the time: Vega, an employee, and Vargas, a customer. The dark-skinned man, who held a gun on the two victims while the light-skinned man emptied the cash register, was later identified as Torres, Rivera’s co-defendant. As the light-skinned man attempted to take Vega’s wallet, a struggle broke out during which Vargas was shot twice. The light-skinned accomplice fled after the first shot and Torres followed soon after. The length of time that the two men spent in the store was estimated at three minutes. Torres was quickly arrested. Three days later an alarm was sent out for Rivera.

According to the trial testimony, both Vega and Vargas were subsequently shown a group of photographs of different men, including one of Rivera, for purposes of identification. There was also some suggestion that Vega may have been shown Rivera’s picture alone, either before or after the showing of the group of photographs. However, because New York has a rule which prohibits a witness from testifying about prior photographic identifications of a defendant, there was no testimony at the trial as to whether Vega or Varga’s picked out Rivera’s photographs, and the photographs which were shown to the victims were not offered in evidence.

Rivera was finally arrested in his attorney’s office on March 17, 1965. Detective Maxwell, the police officer investigating the case

. first took Rivera to the station house, and he then called Vega and instructed him to come to the hospital where he was “going to have someone down for him [Vega] to identify.” Maxwell presented Rivera to Vega in the hospital waiting room and asked Vega whether he “knew the guy.” Vega said “yes” and Rivera remained silent. Maxwell then took Rivera into Vargas’ hospital room, but there was no testimony as to whether Vargas identified him there. Maxwell never took either witness to the police station to identify Rivera in a lineup.
Both Vega and Vargas testified at trial in the Kings County Supreme Court, and both made an in-court identification of Rivera as the light-skinned man involved in the robbery.

United States ex rel. Rivera v. Mc-Kendrick, supra, 448 F.2d at 31-32.

The jury returned a verdict of guilty against both Rivera and Torres and the Appellate Division, Second Department, affirmed. People v. Rivera, 28 A.D.2d 687, 280 N.Y.S.2d 749 (2d Dept. 1967). Thereafter, the New York Court of Appeals (4-3) also affirmed. People v. Rivera, 22 N.Y.2d 453, 293 N.Y.S.2d 271. 239 N.E.2d 873 (1968).

We instructed the district court to inquire on remand into the circumstances surrounding the photographic sessions and the hospital confrontations, as well as the question of whether the victims had an adequate opportunity to observe Torres’ accomplice — all with a view to making a determination of the presence or absence of taint. Pursuant to our mandate Judge McLean conducted a thorough hearing on the question of taint in which all these matters were fully explored. Detective Maxwell and the two victims, Vega and Vargas, testified about events on the night of the robbery and about the subsequent pretrial identifications. Judge McLean found that the victims had had ample opportunity during the robbery to get a good look at the second man. The delicatessen was “a very small, narrow slot of a” store where “anybody in it could get a reasonably good idea of what was going on in any part of the establishment.” During the approximately three minutes that the robbery was in progress, Vega was able to get a “good look” at Torres’ accomplice, and Vargas, though slightly further away, also had “a good look at” the dark-skinned robber.

Immediately after the robbery Vega described the second robber “as being a light skinned Puerto Rican of about 21 years of age, thin faced” — a description which matches Rivera’s physical appearance. The evidence which was absent from the trial record but developed at the hearing concerning the two photographic identifications indicates that both Vega and Vargas positively selected Rivera’s photograph as that of the accomplice from a group of photographs that were presented to them. Similarly, not only Vega, but also Vargas unhesitatingly identified Rivera as Torres’ accomplice during the hospital show-up. Judge McLean stated that:

[b]oth these men testified before me that they knew all the time from the very beginning that this was the man who had robbed Vega and participated in the holdup . . . I accept their testimony. I find that they did know from the very • beginning that Rivera was the man, as I have no doubt he was.

Judge McLean concluded, therefore, that the victims’ in-court identifications were not tainted by the prior identifications which we thought had been impermissi-bly suggestive. United States ex rel. Rivera v. McKendrick, supra, 448 F.2d at 32. This finding of the absence of taint is fully supported by the record at the hearing. We therefore affirm Judge McLean’s denial of the petition.

We again commend assigned counsel, John R. Hupper and J. Barclay Collins, for their diligent and expert exposition of Rivera’s claims.

Affirmed.

      . Detective Maxwell testified at the hearing before Judge McLean that Rivera came under suspicion after an investigation of Torres’ background and the places that Torres frequented in the Bronx revealed that Rivera fit the description of the accomplice and was known as an associate of Torres.

      . Judge McLean’s findings were made orally at a hearing held on April 17, 1972. The language quoted here and later in the text comes from Judge McLean’s findings at this hearing.

      . Despite the suggestion in the trial testimony that Vega may have been shown a single photograph of Rivera for identification purposes, no evidence as to this matter was developed at the hearing. It appears that both victims were presented with a group of photographs. Although the specific photographs which were used could not be located, Detective Maxwell testified that it was his practice at that time to select pictures of people from the same age and ethnic group as the suspect.


author: ROSENN, Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. Paul Gary RUBIN et al. UNITED STATES of America, Appellant, v. Louis Martin AGNES a/k/a Louis Martin.
    Nos. 72-1689, 72-1690.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 15, 1972.
    Decided Feb. 13, 1973.

      Jeffrey M. Miller, Asst. U. S. Atty., Philadelphia, Pa., for appellant.
    Jonathan W. Miller, Defender Assoc, of Philadelphia Federal Court Division, Philadelphia, Pa., and Robert F. Simone, Philadelphia, Pa., for appellee.
    Before SEITZ, Chief Judge, and AL-DISERT and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal deals with the nettlesome question of whether there were exceptional circumstances present to justify a warrantless search of a dwelling.

United States Customs agents entered a house and garage in Philadelphia without a warrant on July 28, 1971, and seized 90 pounds of hashish. Appellees Agnes and Agran, indicted for various offenses connected with importation of the hashish, successfully moved to suppress the seized evidence in the District Court for the Eastern District of Pennsylvania. The Government has appealed the suppression pursuant to 18 U.S.C. § 3781. We vacate the order and remand.

The facts surrounding the warrantless search are set out in the district court opinion:

Sometime during the month of July, 1971, federal customs agents received reliable information that a bronze statue containing a large shipment of illicit drugs, from a point somewhere in Europe, would be shipped to a hospital in this area. As a result of this information, agents or ‘look-outs’ were posted at the Philadelphia International Airport and the waterfront. On or about July 26, 1971, a crate, answering the general description given to the agents by the informant, was delivered to the Airport. Thereafter, Federal customs agents inspected the crate and statue; they then removed a small sample of the contents for chemical analysis. This sample was confirmed to be ‘hashish’, a controlled substance under Title 21, United States Code, Section 841(a)(1). The statue contained approximately ninety (90) pounds of ‘hashish’; it was addressed to Dr. Daniel Sill of the Board [sic] Street Hospital; Dr. Sill is not a co-defendant to this action. Thereafter, the crate was resealed and placed under constant surveillance. Subsequently, and as expected, a pickup was made on July 28, 1971, at approximately 4:00 p. m., by two men, one of whom was identified as Louis Martin Agnes (A/K/A Louis Martin), a defendant herein. The crate was taken from the Airport by defendant Louis Agnes, by car, to 1819 S. 9th Street in Philadelphia, where it was unloaded at about 5:00 P.M. Shortly thereafter, a custom’s agent was dispatched at approximately 5:10 P.M. on July 28, 1971, to prepare and procure a search warrant. Subsequently, defendant Agnes left the South Ninth Street address at about 6:00 P.M., without the crate, but in his car. He was, of course, placed under surveillance. During this surveillance, Agent Bergin testified that ‘it appeared to us that the vehicle [Agnes’ car] was becoming evasive and aware we were behind it, áhd we stopped it and took the operator in custody.’ The actual arrest occurred at a gasoline station (some six blocks from Agnes’ home), between 6:20 and 6:30 p. m. As he was being taken into custody, Agnes yelled to the gas station attendants and spectators, ‘Call my brother’. The agents testified that at this point they reasonably believed that there existed the ‘threat of destruction’ to the ‘hashish’, which had been delivered to defendant Agnes’ home. Thus, the agents proceeded to enter defendant’s home in order to preserve the evidence contained therein. Once inside, the officers found the co-defendants, Earl Melvin Agran, Paul Gary Rubin, and Jan Massaar, in the process of packing the ‘hashish’ for possible distribution; all were arrested and the ‘hashish’ seized. Of course, the search was made without a warrant, and subsequent to the arrest of defendant Agnes. Upon the arrest of Agnes, Agent Moss abandoned his efforts to procure a search warrant.

The district court rejected the Government’s argument that the warrantless search of 1819 South 9th Street was permissible because of the so-called “emergency doctrine.” The court, apparently construing a long line of Supreme Court opinions to require that Government officials have knowledge that evidence is actually being removed or destroyed, ordered the seized evidence suppressed.

On appeal, the Government argues that the district court applied too severe a standard in reviewing the warrantless search and that the evidence should be admissible because the agents had a reasonable belief that the hashish they knew was in the residence was about to be destroyed or removed.

Appellees Agnes and Agran maintain that the strict standard applied by the district court was correct. Agnes argues further that he was arrested without a warrant or probable cause, and that this fact also necessitates suppression of the seized evidence. Agran also argues that the evidence must be suppressed because entry first into the front door of 1819 South 9th Street and then into the rear garage door was made without announcement of purpose, in violation of 18 U.S.C. § 3109. Although this issue was not ruled on by the district court, Agran and Agnes had raised it as part of their original suppression motions.

The fourth amendment protects the right of the people to be secure in their homes by providing that search warrants shall not issue “but upon probable cause, supported by Oath or affirmation.” Although inferences may be drawn to support the need for a reasonable search, the amendment’s protection

consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Despite the clear preference of the law for searches authorized by warrants, the Supreme Court has recognized several “exceptional circumstances”

in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with.

Johnson v. United States, 333 U.S. at 14-15, 68 S.Ct. at 369. The Court noted that it might consider “exceptional circumstances” by stating that the circumstances in that case were different from one in which “evidence or contraband was threatened with removal or destruction.” 333 U.S. at 15, 68 S.Ct. at 369.

Subsequent to Johnson, the Supreme Court has in at least two cases noted that belief that evidence is being destroyed or removed might create an exceptional circumstance justifying a war-rantless search. In each, the Court, nonetheless, suppressed the evidence after finding no such circumstances. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). In neither case did the Court find any surrounding circumstances indicating to police officers that the evidence was “likely to be destroyed,” McDonald v. United States, 335 U.S. at 455, 69 S.Ct. 191, or faced “imminent destruction, removal, or concealment,” United States v. Jeffers, 342 U.S. at 52, 72 S.Ct. 93.

The three recent Supreme Court cases which have sustained use of evidence obtained through warrantless searches offer little guidance as to the exact parameters of the emergency exception. Both Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), setting guidelines for permissible “stop and frisk” procedures, and Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), involving search of the premises into which a felon under “hot pursuit” had fled, were premised on the “exceptional circumstance” that police officers must be able to protect themselves from bodily harm, rather than any Government claim that evidence would be removed or destroyed. Only Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), involved the removal or destruction exception. The Court approved in Schmerber a warrantless blood test performed on an automobile driver who had been in an accident and was suspected of drinking. Although the Court found the administration of a blood test was within the area of privacy intrusions protected by the fourth amendment, it said a search warrant was not required because :

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.

384 U.S. at 770, 86 S.Ct. at 1835. Although, if scientific knowledge were imputed to the officer in Schmerber, it could be said he had knowledge that evidence was actually being destroyed, the Court spoke of “threatened” destruction. It would seem unwise to put undue emphasis on use of the word “threatened” in Schmerber. At the same time, however, it cannot be said that the Court was requiring the officer have knowledge evidence was in the process of destruction before any warrantless search could be approved.

The district court relied on three recent Supreme Court opinions, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), in suggesting that actual knowledge that evidence was being destroyed or removed was required under the emergency exception. Although we recognize that each of these cases speaks of the high standards of exigency which must be present to justify warrantless searches, we cannot agree with the district court that these cases allow “emergency” justification only when the searching officers have knowledge that evidence is actually being removed or destroyed.

Three police officers arrived at petitioner’s home in Chimel, armed with an arrest warrant based on the burglary of a coin shop. Chimel was arrested when he returned from work, and, despite his objection, the officers conducted an extensive search through the house seeking the stolen coins. In finding this search incident to an arrest unjustified, the Court said:

The search here went far beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. . . . The scope of the search was, therefore, ‘unreasonable’ under the Fourth and Fourteenth Amendments, and the petitioner’s conviction cannot stand.

395 U.S. at 768, 89 S.Ct. at 2043.

Chimel’s wife was present at the time of the arrest and search. Dissenting, Justice White therefore argued that exigent circumstances justifying a war-rantless search existed because of the combined facts of an arrest and the risk that evidence could be destroyed by the wife before a search warrant could be procured. In light of the dissent, it may perhaps be argued that Chimel can be read to reject the contention that war-rantless searches are justified to prevent a threatened destruction or removal of evidence. Such a reading, however, would misconstrue both the facts present in, and the rationale behind, the majority decision of Chimel. In Chimel the police had had time to obtain an arrest warrant. There was no showing that it would have been “unduly burdensome” for the police to have also obtained a search warrant. 395 U.S. at 768 n. 16, 89 S.Ct. 2034. No emergency had occurred during the arrest to indicate to the'officers that removal or destruction of evidence was imminent or threatened. The Court recognized the exceptions allowing warrantless searches, but found that none of them applied. 395 U.S. at 763 n. 8, 763 n. 9, 89 S.Ct. 2034. The thrust of Chimel was that the arrest of a man at home could not justify a search of his entire house. Nowhere in the majority opinion does the Court suggest that the emergency exception for the threatened destruction of evidence was not still recognized as sound law.

A search warrant was found invalid by the Court in Coolidge. The Court thus measured the validity of three searches of an automobile, which had been parked in defendant’s driveway and was then towed to the police station, by the standards for warrantless searches. One of the state’s theories for upholding the validity of the search was that an automobile may be searched without a warrant anytime there is probable cause, because of the danger that it will be removed. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The Court rejected this contention because the facts made it clear that there was no reason to believe the automobile would be moved before a warrant could be obtained. Coolidge v. New Hampshire, 403 U.S. at 460-464, 91 S.Ct. 2022. . The defendant was in custody; his wife, the only other adult occupant of his home, was not at home, and was, in fact, in the company of two policemen until after the time when the car was towed away. The Court was careful to note that under different facts, a warrantless search might have been justified:

Of course, if there is a criminal suspect close enough to the automobile so that he might get a weapon from it or destroy evidence within it, the police may make a search of appropriately limited scope. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

403 U.S. at 461 n. 18, 91 S.Ct. at 2035. The holding in Coolidge therefore was that when there is not even a reasonable threat that evidence could be destroyed, a warrantless search cannot be justified. There is, however, no requirement that officers have knowledge of destruction taking place to justify a warrantless search.

The district court relies most heavily on Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L.Ed.2d 409 (1970), in suggesting that knowledge of the actual destruction or removal of evidence is required to sustain a warrantless search. Although the Court had always spoken of “threatened” destruction or removal of evidence in previous cases involving the emergency exception, in Vale, 399 U.S. at 35, 90 S.Ct. 1969, it spoke for the first time of goods “in the process of destruction.” Although the language might suggest that the emergency exception must be construed to require knowledge that the evidence is actually béing removed or destroyed, the omission of a single word should not be given such significance, especially in light of the facts in Vale. Officers with two warrants for Vale’s arrest were watching his house when they saw him perform various acts that appeared to the officers to involve sales of narcotics. They arrested Vale on his front steps and proceeded to search his house. The Louisiana Supreme Court had found the seized narcotics admissible evidence because such evidence is so easily removed or destroyed. The United States Supreme Court rejected this reasoning, stating:

[B]y their own account the arresting officers satisfied themselves that no one else was in the house when they first entered the premises.

399 U.S. at 34, 90 S.Ct. at 1972. The facts did not support a belief by the arresting officers that there was even a “threatened” destruction or removal of the narcotics. No exigent circumstances justifying the search existed. Further supporting suppression of the evidence in Vale was the lack of any evidence suggesting that “it was impracticable for them [the officers] to obtain a search warrant as well” as the arrest warrants which they did obtain. 399 U.S. at 35, 90 S.Ct. at 1972.

We have extensively reviewed the Supreme Court cases dealing with the emergency circumstances exception allowing warrantless searches to prevent removal or destruction of evidence. We find no requirement that officers must know of the removal or destruction in order to make the search. We are nonetheless obliged to explore the standard by which warrantless searches under emergency circumstances should be judged.

The fourth amendment does not forbid all searches and seizures but only such as are unreasonable. The Supreme Court in Schmerber observed that the fourth amendment’s proper function is “to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” 384 U.S. at 768, 86 S.Ct. at 1834. Thus, judging the legality of warrant-less searches involves, as emphasized in Johnson, a delicate- question of balancing the rights of the individual to be secure in his home against the interest of society in preventing the disappearance of evidence necessary to convict criminals. The strong individual interest has demanded there be “only ... a few specifically established and well delineated exceptions” to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. at 455, 91 S.Ct. at 2032. The emergency circumstances exception is “established,” but it has not been “well delineated.” The Supreme Court has never spoken in a case such as this one where the searching officers know there is in fact a large quantity of contraband narcotics in a dwelling, and they are apprehensive that it may be removed or destroyed.

Many lower federal courts have, however, grappled with the problem of whether warrantless searches were justified by emergency circumstances. From their rulings, a framework within which to evaluate the circumstances in the present case can be established. Probable cause to believe contraband is present is necessary to justify a warrantless search, but it alone is not sufficient. Probable cause must exist to support any search; the role of the warrant-issuing magistrate is to determine whether probable cause exists. Mere probable cause does not provide the exigent circumstances necessary to justify a search without a warrant.

When Government agents, however, have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant, compare United States v. Pino, 431 F.2d 1043, 1045 (2d Cir. 1970), with Niro v. United States, 388 F.2d 535 (1st Cir. 1968); (2) reasonable belief that the contraband is about to be removed, United States v. Davis, 461 F.2d 1026, 1029-1030 (3d Cir. 1972); Hailes, v. United States, 267 A.2d 363 (D.C.C.A.1970); (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, United States v. Pino, 431 F.2d at 1045; (4) information indicating the possessors of the contraband are aware that the police are on their trail, United States v. Doyle, 456 F.2d 1246 (5th Cir. 1972); and (5) the ready destructibility of the contraband and the knowledge “that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic,” United States v. Manning, 448 F.2d 992, 998-999 (2d Cir. 1971); United States v. Davis, 461 F.2d at 1031-1032. In most cases where warrantless searches were not suppressed, a warrantless arrest was also involved. The present case is unique because the customs agents had no intention of making arrests when they entered the Agnes house, and the Government does not attempt to justify the search as incident to an arrest. The relevant criteria in determining whether the entry was constitutional, however, are similar.

A review of the facts surrounding the entry into the house and garage at 1819 South 9th Street convinces us that the customs agents “might reasonably have believed that [they were] confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ ” Schmerber v. California, 384 U.S. at 770, 86 S.Ct. at 1835. The agents possessed more than enough information to establish probable cause that hashish was on the premises. Their inspection at the airport revealed hashish in the life-sized bronze bust statue, and the close trailing of the statue from the airport to the garage attached to Agnes’ home established its presence there. The agents also possessed information that the statue had been broken open by the time of the search, as “kief,” a form of hashish, was found all over Agnes’ clothes when he was arrested. They therefore could reasonably conclude that distribution of the hashish was in progress.

Although the agents conducting surveillance of the Agnes house had no information connecting the subsequently arrested defendants found in the garage with the narcotics trade, the agents were aware that men were in the Agnes household at the time the decision to search was made. At least one of them had been seen with Agnes at the time he backed his automobile into his garage with the crated statue in the trunk. The agents therefore could reasonably conclude that at least this person was involved in the narcotics operation.

Agnes intentionally pulled into a gasoline station a half dozen blocks from the searched premises, where it appeared to the agents he was known to some of the persons present. When arrested, he yelled, “Call my brother.” It was not unreasonable for agents to believe that this might well be a signal to alert persons still at 1819 South 9th Street of Agnes' arrest and of imminent police intervention into their activities, even though the agents did not see a telephone call made and had no knowledge of the existence of any brother of Agnes. The nature of the narcotics business necessitates rapid distribution of goods in order to prevent apprehension. Hashish is easily destroyed. Agnes was apprehended in the neighborhood of his home and 'apparently in the presence of people whom he knew. Earlier in the day other individuals had been observed entering and leaving his home. The delivery at the airport of the bronze bust filled with hashish had all the characteristics of a sophisticated operation. Although the agents had been watching both doors of the Agnes home, they could not be certain of how quickly the contraband could be destroyed or what surreptitious means might be available for its removal. The agents had reasonable grounds to conclude that in light of the emergency, it was necessary to enter the premises without awaiting the search warrant.

Appellees argue that the search was unreasonable because the agents at the house did not find out from Agent Moss, who had been sent to obtain a warrant, how soon he would accomplish his task. When Agnes was arrested about an hour later, Agent Moss had not yet returned. Appellees argue that Moss could have returned with a warrant within a short time, thus preventing the need for a warrantless search. Considering all the circumstances, however, the agents could reasonably have concluded that even a short wait might have been too long. An urgent emergency had arisen due to Agnes’ arrest and apparent signal. Warrantless searches have been struck down when the police have without justification not used the time available to seek a warrant. That was not the case here. When the crate was picked up at the airport, the agents were uncertain as to its destination. As soon as it did reach 1819 South 9th Street, they began the process of seeking a warrant. Only because exigent circumstances developed about an hour later did it seem necessary to act without awaiting the delivery of the warrant.

We do not minimize the historic and essential importance of the fourth amendment’s protection in shielding the citizen from unwarranted intrusions into his privacy. The strong preference of the Constitution for searches pursuant to warrants is clear. Only the emergency circumstances here justified the entry into Agnes’ house. These circumstances were sufficiently compelling in tipping the delicate balance in favor of protecting societal interests. Our vigilance in protecting the privacy of the individual in his home must not absolutely preclude officers of the law, when they are confronted with exigent circumstances, from effective criminal investigation and law enforcement in curbing illegal narcotics traffic. We therefore vacate the district court’s holding that the evidence seized at 1819 South 9th Street must be suppressed because of an unconstitutional search.

Although we vacate the district court’s order, we cannot finally dispose of appellees’ contentions. Both in the district court and here, appellees have also claimed that the entry into both house and garage were illegal because of the failure of the agents to announce their purpose and because of their forcible entry without a prior refusal of entry by the occupants, in violation of 18 U.S.C. § 3109. The district court, however, did not rule on this issue; and the Government has not briefed the issue on appeal. We therefore remand the case to the district court for a ruling on this issue and its effect on the admissibility of the seized evidence. Appellee Agnes’ further claim that his warrantless arrest was made without probable cause is without merit.

The order of the district court will be vacated and the case remanded for further disposition consistent with this opinion.

       It should be noted at this juncture that the agents involved had prior to the pick-up of the statue identified Louis Martin Agnes as a possible suspect and had placed the house under complete surveillance on the date in question, at approximately 10:30 A.M., some 5 hours before the statue arrived at the South Ninth Street address. [District court’s footnote 2.]

      . The opinion is reported at 343 P.Supp. 625 (E.D.Pa.1972). Our statement of facts omits the district court’s references to the notes of testimony page numbers.

      . In Johnson police had smelled opium fumes outside a hotel room door. The Court noted that they might disappear, but stated such disappearance would be insignificant:
      But they [the fumes] were not capable at any time of being reduced to possession . . . The evidence of their existence before the search was adequate and the testimony of the officers to that effect would not perish from the delay of getting a warrant.
      333 U.S. at 15, 68 S.Ct. at 369.

      . Vale is read the same way in Note, Police Practices and the Threatened Destruction of Tangible Evidence, 84 Harv.L.Rev. 1465, 1468 (1971).

      . It might be noted that the agents could have seized the contraband and arrested Agnes at the airport, when he picked up the statue. No warrant would have been necessary at that time.

      . 18 U.S.C. § 3109 provides :
      The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.