Davida v. United States

• Decision Date: 20 April 1970
• Docket Number: No. 304-69.,304-69.
• Citation: 422 F.2d 528
• Parties: Charles DAVIDA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

422 F.2d 528 (1970)

Charles DAVIDA, Appellant, v. UNITED STATES of America, Appellee.

No. 304-69.

United States Court of Appeals, Tenth Circuit.

February 10, 1970.

Rehearing Denied April 20, 1970.

George S. McCarthy, Amarillo, Tex., for appellant.

Hubert A. Marlow, Asst. U. S. Atty., for the Northern District of Oklahoma, for appellee.

Before HICKEY and HOLLOWAY, Circuit Judges, and EUBANKS, District Judge.

EUBANKS, District Judge.

Appellant, Charles Davida, was convicted in a jury trial of passing a counterfeit $5.00 federal reserve note at a service station in Tulsa, Oklahoma and was sentenced to five years imprisonment. The prosecution was under Title 18, United States Code, Section 472. This is a direct appeal from that conviction and sentence.

Evidence presented at the jury trial revealed that the Appellant had passed a counterfeit $5.00 note in Webb City, Missouri prior to the Tulsa offense. This evidence is not attacked by Appellant. After the Tulsa offense, the evidence revealed that Appellant passed a counterfeit $5.00 note at a service station in Amarillo, Texas. This evidence is not attacked by Appellant. However, very shortly after the $5.00 counterfeit note was passed in Amarillo, the service station attendant receiving the note discovered it was counterfeit and notified the Amarillo City Police, giving them a description of the Appellant and the Cadillac car he was driving. Shortly thereafter Amarillo police spotted the car at a restaurant and observed the Appellant enter the same and drive away. They then stopped the Appellant in the car, took him to the City Jail and took his Cadillac car to a garage where the same was impounded. There were no United States Secret Service Agents situated in Amarillo but agents located in Dallas had jurisdiction over the Amarillo area. The Amarillo police called the Secret Service in Dallas and reported the incident. After this call, the Amarillo police obtained a state search warrant from a Texas Justice of the Peace and searched the Appellant's Cadillac car. Thirty counterfeit $5.00 notes were found under the floor mat of the car. The result of this search was admitted in evidence by the trial court over the objection of the Appellant.

Appellant cites Navarro v. United States, 5 Cir., 400 F.2d 315, in support of his claims that the said search and seizure was illegal as Rule 41(a), Federal Rules of Criminal Procedure, requires that a search warrant issued by a judge of a state court, in order to be valid, must be issued by a state court of record. It is agreed that a Texas Justice of the Peace is not a court of record.

However, the Government urges that the said search and evidence seized therefrom did not require a search warrant and that the cautionary use of one, even if deemed to be contrary to Rule 41(a), Federal Rules of Criminal Procedure, did not serve to make the search invalid and the evidence seized therefrom inadmissible in court. In this connection, the Government relies on 49 U.S.C. § 783, which makes it the duty of an officer authorized by law, whenever he shall discover a vehicle which has been or is being used in violation of the law in the transportation of a contraband article, to seize the same. Said statute reads:

§ 783. Designation of officers by Secretary of Treasury; duties of officers

The Secretary of the Treasury is empowered to authorize, or designate, officers, agents, or other persons to carry out the provisions of this chapter. It shall be the duty of any officer, agent, or other person so authorized or designated, or authorized by law, whenever he shall discover any vessel, vehicle, or aircraft which has been or is being used in violation of any of the provisions of this chapter, or in, upon, or by means of which any violation of this chapter has taken or is taking place, to seize such vessel, vehicle, or aircraft and to place it in the custody of such person as may be authorized or designated for that purpose by the Secretary of the Treasury, to await disposition pursuant to the provisions of this chapter and any regulations issued hereunder.

Counterfeit federal reserve notes are contraband. 49 U.S.C. § 781(b) (3). The Amarillo police officers involved were authorized by law and fully empowered to enforce a federal criminal statute involving a felony when they had probable cause to believe that the same had been or was being violated. Articles 14.04 and 14.05, Vernon's Ann.Texas Code of Criminal Procedure; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Whitlock v. Boyer, 77 Ariz. 334, 271 P.2d 484 (1954); Rent v. United States, 209 F.2d 893 (Fifth Cir. 1954); Buick v. United States, 396 F.2d 912 (Ninth Cir. 1968); Marsh v. United States, 29 F.2d 172 (Second Cir. 1928); Dorsey v. United States, 174 F.2d 899 (Fifth Cir. 1949). Here, the Amarillo police had probable cause to believe that the Appellant had violated federal law in passing a $5.00 counterfeit note at an Amarillo service station and was using his Cadillac car in doing so. This probable cause was obtained from the Amarillo victim of Appellant, the service station attendant, who provided a description of the Appellant and also the Cadillac car in which he drove into and out of the service station in connection with his passing the $5.00 counterfeit note. Thus, the Amarillo police had probable cause to believe that federal law had been violated with reference to the passing of a $5.00 counterfeit note in Amarillo and they were authorized to enforce said law by arresting the Appellant and seizing his Cadillac car used in the commission of the offense.

Several courts, including our Circuit, have held that a vehicle which has been lawfully seized because of use in transporting contraband may be searched without a search warrant or the consent of the possessor owner, and evidence so discovered may be properly admitted in a contraband prosecution. This is pursuant to the Contraband Seizure Act, 49 U.S.C. § 781 et seq. Sirimarco v. United States, 315 F.2d 699 (Tenth Cir. 1963); Drummond v. United States, 350 F.2d 983 (Eighth Cir. 1965); ...