Symons v. United States

Decision Date16 January 1950
Docket NumberNo. 11866.,11866.
Citation178 F.2d 615
PartiesSYMONS v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Morris Lavine, Los Angeles, Cal., for appellant.

James M. Carter, U. S. Atty., Norman W. Neukom, Cameron L. Lillie and Tobias G. Klinger, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge, and HEALY and BONE, Circuit Judges.

BONE, Circuit Judge.

Appellant, having waived jury trial, was convicted before a United States District Judge of offenses as charged in two counts of an indictment. Count one charged defendant with acquiring (in violation of 26 U.S.C.A. § 2593(a)) marihuana without having paid the transfer tax imposed by 26 U.S.C.A. § 2590(a), he being a transferee required to pay such tax. Count two charged him with concealing (in violation of 19 U.S.C.A. § 1593(b)*) the marihuana knowing it to have been imported into the United States contrary to law.

The Government concedes error as to count two and we agree that the judgment cannot be sustained on that count. There was no evidence that the marihuana had been imported into this country and that appellant knew this. The judgment and sentence on count two is therefore reversed.

Appellant assigns as error failure of the trial court, upon motion timely made, to suppress certain evidence (the marihuana) and failure to suppress the arrest. He alleges that both the evidence and the arrest resulted from an illegal search and seizure in violation of the Fourth and Fifth Amendments of the Constitution of the United States. Appellant also assigns as error the admission, over objection, of certain statements made to Federal narcotic agents by the defendant prior to his being taken before a commissioner. Finally, appellant contends that the evidence was insufficient to support the verdict.

A brief review of the facts appears necessary to an understanding of the questions involved. From a careful consideration of the testimony (some of which is disputed) we believe that the trial judge was justified in believing, beyond a reasonable doubt, that the evidence established the following facts to be true:

On Friday, December 5, 1947, the proprietress of a motel in Manhattan Beach, California called the local police. At her request they searched one of the motel units and found there particles of marihuana. A Cadillac automobile, which had been used by occupants who had just left the motel unit wherein the marihuana was found, was traced through its license number to a street address in El Segundo, California where appellant lived. This automobile was owned by appellant. Three Manhattan Beach police officers (in uniform) and a detective from the Los Angeles Police Department Narcotics Division (one Sgt. Barr, who had been called down from Los Angeles) proceeded to the El Segundo address arriving there at about 12:30 or 1:00 o'clock a. m. on Saturday, December 6, 1947. At the time they were following this marihuana trial they did not have a search warrant or warrant of arrest.

The officers knocked on appellant's door and during a short conversation with the occupants identified themselves as police officers and demanded entrance. Upon the occupants' refusal to open the door, and after hearing a "scurrying around" inside, Sgt. Barr threw a flower pot through a window by which means he and the other officers were able to unlock the door. They then entered the house. Appellant and his brother were there apprehended and handcuffed. The officers then searched the house and in the attic found a shopping bag which contained several "Prince Albert" tins filled with bulk marihuana and 213 marihuana cigarettes. Appellant and his brother were questioned by the local officers but denied any knowledge of the marihuana. Appellant at that time requested that he be allowed to call his lawyer but the request was refused.

Thereafter and at about 2:00 a. m. these local officers decided to call in the Federal agents here concerned. Sgt. Barr telephoned to the Federal Building in Los Angeles and obtained the residence phone number of one William Kraig, a Federal narcotics agent whom he knew, after which he called Kraig at his residence. Kraig (and Heine, another Federal agent) arrived at appellant's house between 3:00 and 4:00 a. m. on Saturday. Prior to their arrival, the local officers had dumped on the floor the contents of the shopping bag and two of the officers had "initialed" (for identification purposes) each package or aggregate of marihuana included in the tins and bunch of cigarettes found in the shopping bag.

Upon the arrival of the two Federal agents, Sgt. Barr handed over to Kraig the marked (initialed) packages or parcels of the marihuana advising Kraig that these had already been initialed for identification by the local officers. Kraig then suggested that the remaining two local officers also add their initials to the previously marked packages since these two officers had witnessed the seizure of the marihuana. This was done.

After the occurrences above noted, Kraig apparently then "took charge." He questioned appellant and his two brothers briefly (another brother had arrived at the house in the meantime) but without success. About 5:00 a. m. appellant and his two brothers were taken to the Manhattan Beach Police Station and were there questioned intermittently until about 7:00 a. m. at which time they were taken by Kraig to his offices in the Federal Building in Los Angeles. They arrived there about 8:00 a. m. of Saturday, December 6, 1947. After about two minutes interrogation, during which time Kraig informed appellant that his brothers were going to be released without charge, appellant admitted to Kraig (in the presence of Heine) that the marihuana was his.

Kraig thereafter left the building for the purpose of taking the two brothers back to their home and Heine then had a conversation with appellant in which appellant also admitted to Heine that the marihuana here involved belonged to appellant; also that three days prior to his arrest, appellant had purchased two pounds of bulk marihuana from a Mexican called Chungo.

Thereupon appellant was booked in jail for violation of the Internal Revenue Act.

Motion to Suppress the Evidence.

In light of the facts above narrated which we think were clearly established in the evidence, we need not consider whether the search and seizure of the marihuana by the municipal police was legal under the laws of California. The trial court found: "that there was no cooperation between the federal officers and the local officers * * * until after the defendant had been placed under arrest and until after all of the marihuana had been found and after that was completed. There is no evidence that the federal officers knew anything about the connection of these defendants with this offense until they were advised by the state officers. * * * As I see it, everything was accomplished without any aid or assistance or cooperation from the federal officials until they were advised of an offense. Then they went to this home and took custody of the defendant and also of the exhibits that have been introduced in this case."

The undisputed evidence fully sustains these findings. We think the facts of this case squarely meet the test recently announced by the Supreme Court in Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1374, "It is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter." Here the federal officials did not instigate the search; they did not join it while it was in progress, and they did not participate in the search.

The denial of appellant's motion to suppress the evidence and the subsequent admission of the marihuana as evidence was proper and the denial did not violate appellant's rights under the Fourth and Fifth Amendments.1

Appellant contends that the local police were acting as "agents" for the Federal Government but the evidence wholly fails to support this allegation and the court so found. These state officers were fully aware that possession of marihuana constitutes an offense against the laws of the State of California amounting to a felony.2 For us to say that under the circumstances here shown the federal officers had no lawful right to accept this marihuana from the state officers and that by accepting it they somehow violated the "constitutional rights" of a willful law violator, would delight those who profess to see nothing but evil and sinister design in efforts of law enforcing agencies to protect organized society against the criminal activities of men engaged in a vicious and degrading traffic. As respects this phase of the case the record provides no indication or evidence whatever that the local police had decided (to employ their vernacular) to "take it federal" until after the arrest was made by them and after the completion of their search and seizure and careful marking of the seized marihuana, for identification.

Motion to Suppress the Arrest.

Here again we suggest that it is unnecessary to decide whether the arrest of the appellant by the local police was lawful. Certainly appellant's subsequent arrest by the federal agents, even though made without a warrant, was lawful. The powers of special agents of the Bureau of Narcotics to arrest without warrants have not been clearly defined or limited by statute. See United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210, which appears to lay down the rule that the validity of an arrest without a warrant depends, (in the absence of an applicable federal statute) upon the law of a state in which the arrest takes place. The California law of arrest does not differ essentially from the usual rule derived from the common law.3

It is well settled that an officer may arrest without warrant one believed by him, upon reasonable cause, to have...

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