476 F.2d 5 (5th Cir. 1973), 72-2737, United States v. Saunders

• Citation: 476 F.2d 5
• Date: 02 April 1973
• Docket Number: 72-2737.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mansfield SAUNDERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 5

476 F.2d 5 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mansfield SAUNDERS, Defendant-Appellant.

No. 72-2737.

United States Court of Appeals, Fifth Circuit.

April 2, 1973

Page 6

J. V. Eskenazi, Federal Public Defender (court appointed) Miami, Fla., Richard M. Dunn, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before BELL and THORNBERRY, Circuit Judges and GROOMS, District Judge.

THORNBERRY, Circuit Judge:

Appellant was convicted below after a non-jury trial of possessing approximately eight grams of marijuana in violation of 21 U.S.C.A. § 844(a). On appeal he contends that the warrantless search which produced the marijuana was constitutionally invalid because it was not incident to a valid arrest. We affirm.

On August 5, 1971, agents of the Bureau of Narcotics and Dangerous Drugs (BNDD) set out to arrest one Brinson pursuant to an arrest warrant. Guided by an informant's tip, they located him at about noon near a sea-going boat, the RICKI, in Dania, Florida, in the company of Patricia Manchester and appellant Saunders. According to the informant, the three planned to depart that night on the RICKI for Jamaica. The agents kept Brinson, Manchester, and Saunders under surveillance for approximately ten hours, and during this period they decided that, in addition to executing the arrest warrant for Brinson, they would arrest Manchester and appellant Saunders as well for harboring or concealing a fugitive in violation of 18 U.S.C.A. § 1071. At about 10:30 p.m. they boarded the RICKI and made the arrests as planned. In the process of boarding the boat and securing the arrestees, they saw about four grams of apparent marijuana lying in plain view on the galley table and perceived the smell of marijuana smoke. The district court determining that, although the agents had originally intended to arrest Saunders for harboring or concealing only, they were aware of the marijuana on the galley table at the time, of the arrest. Immediately after the arrest, Saunders, Manchester, and Brinson were taken to the BNDD Regional Office, where search of appellant Saunders' pockets produced the eight grams of marijuana which ultimately led to his conviction below. This search of Saunders' person is the object of challenge.

The Government contends on this appeal, as it did below, that the warrantless search was valid because it was incident to a valid arrest. Saunders concedes that the search was "incident" to the arrest, United States v. Gonzalez-Perez, 5th Cir. 1970, 426 F.2d 1283, 1287, but contends the arrest was not a valid one because it was not based on probable cause. The district court held that although there was no probable cause to arrest Saunders for harboring or concealing, ¹ there was probable cause to arrest him for possessing the marijuana on the galley table, so that the arrest

Page 7

and the incident search were valid. ² We agree that the marijuana in plain view on the galley table supplied probable cause for the arrest. We need not, and do not, reach the question of probable cause to arrest for harboring or concealing.

We note that appellant's challenge to the validity of his arrest is quite limited in scope. He does not argue that BNDD agents were aboard the RICKI wrongfully or without justification when they saw...