Elkanich v. United States

• Decision Date: 27 April 1964
• Docket Number: No. 18702.,18702.
• Citation: 327 F.2d 417
• Parties: Joseph ELKANICH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

327 F.2d 417 (1964)

Joseph ELKANICH, Appellant, v. UNITED STATES of America, Appellee.

No. 18702.

United States Court of Appeals Ninth Circuit.

January 13, 1964.

Rehearing Denied February 18, 1964.

Certiorari Denied April 27, 1964.

John J. Fahey and Herbert Chamberlin, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., and James F. Hewitt, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS and HAMLEY, Circuit Judges, and MURRAY, District Judge.

Certiorari Denied April 27, 1964. See 84 S.Ct. 1182.

MURRAY, District Judge.

Appellant appeals his conviction, after a jury trial, on three counts of fraudulently and knowingly selling and concealing and facilitating the sale and concealment of heroin, in violation of 21 U.S.C. § 174. Jurisdiction of this appeal is conferred on this court by 28 U.S.C. §§ 1291 and 1294.

Appellant was arrested by federal narcotic agents without a warrant on July 20, 1962, in an apartment on Hyde Street, San Francisco. Found and seized in the search of the apartment which followed the arrest were $1,550 of official advance funds previously used in the purchase of heroin on July 13, 18 and 19, 1962, from one Albert Rios, and a plastic bag enclosed in a large manila envelope. This money, plastic bag and envelope were received in evidence at the trial over appellant's timely objection, after his pre-trial motion to suppress made pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure had been denied.

The sole question presented by this appeal is whether the arresting officers had "probable cause" within the meaning of the Fourth Amendment to the Constitution,¹ and "reasonable grounds" within the meaning of § 104(a) of the Narcotic Control Act of 1956, 70 Stat. 570, 26 U.S.C. (Supp. V), § 7607² to arrest appellant without a warrant, for if the arrest were lawful, the search and seizure made in connection with the arrest were likewise lawful, and the evidence which was the product of the arrest and the search and seizure was properly admitted. Draper v. United States, 358 U.S. 307, 310, 314, 79 S.Ct. 329, 3 L.Ed.2d 327. "Probable cause" as used in the Fourth Amendment, and "reasonable grounds" as used in § 104(a) of the Narcotic Control Act, are substantial equivalents of the same meaning. Draper v. United States, supra; United States v. Walker, 7 Cir., 246 F.2d 519, 526.

To resolve this problem a somewhat detailed statement of the circumstances surrounding the three narcotic sales charged in the indictment is necessary. All three sales were made by one Albert Rios, a narcotic addict, to one Leonard Lang, an undercover Federal Narcotic Agent. In each instance the purchase was made with "official advance funds", that is, money supplied by the government in currency, the serial numbers of which had been recorded on a money list.

The first sale was made July 13, 1962. At 9:30 that evening, pursuant to previous arrangements between them, Lang met Rios at a telephone booth on the highway near a shopping center at Pacifica, a suburb of San Francisco. They drove in Rios' car to San Francisco where Rios parked in the 600 block on Larkin Street, across the street from the Marlow Hotel or Apartments. At that time and place, in Rios' car, Lang gave Rios $700 in official advance funds for the purchase of one ounce of heroin. Rios left the car, crossed the street and entered the Marlow Hotel. He remained in the hotel for about 30 minutes, and then returned and reentered the automobile and handed Lang a small brown paper sack containing a plastic envelope with heroin inside. They returned to Pacifica where Lang picked up his car and drove back to San Francisco with the heroin.

The second sale was made July 18, 1962. On that date, at about 3 o'clock P.M., Lang met Rios at a bowling alley in the 2900 block on Mission Street in San Francisco, and from there they drove to a bar at 11th and Mission Streets, where, at approximately 4:15 P.M., Lang delivered to Rios $600 in official advance funds, and Rios departed. Lang remained in the bar for about an hour and a half until he received a telephone call from Rios, and then he went to a parking lot of the Safeway Store at Market and Duboce Streets, where he met Rios again. They entered the Safeway Store, and at a phone booth in the store Rios delivered to Lang a paper sack containing a plastic envelope with heroin inside.

The third sale was on July 19, 1962. Lang again met Rios at the bowling alley and they arranged a subsequent meeting. At 4:00 P.M. that same day, Rios picked up Lang in his car and drove to the vicinity of 14th and Belcher Streets in San Francisco, where Rios parked his car. Lang then gave Rios $1,200 in official advance funds, and Rios left the car and disappeared. He returned to the car in about 30 minutes and delivered to Lang a brown paper sack containing 4 plastic envelopes with heroin inside. Lang then picked up his own car and returned to his office, and Rios was arrested by other Federal Narcotic Agents on his way home to Pacifica, at about 6:00 P.M. on July 19, 1962, at which time, $200 of the official advance funds was found in his car.

At the time of his arrest on the evening of July 19th, Rios had in his possession two keys and an address book. When questioned as to his source of supply of heroin at that time, Rios stated his source was a Chinese seaman named "Charlie", but that he had no address or telephone number for this person. When questioned by agent Lang again on the afternoon of July 20, the day following his arrest, Rios informed Lang that the keys found on his person were to room 30 in the Marlow Hotel, where he had met "Charlie" the Chinese seaman on the evening of July 13th and purchased the heroin he sold to Lang on that date.

On checking at the hotel after receiving this information, Lang was informed by the landlady that she had been managing the hotel for three months and that no Chinese had been in the hotel during that time to her knowledge. Upon examining the rent receipts, she informed Lang that room No. 30 had been rented on July 13, 1962, to a "Slovakian-looking fellow," whom she described in detail, and she furnished a rent receipt indicating that the name of the occupant of room 30 on the evening of July 13th was Joseph Elkanich. She further advised Lang the room had not been slept in that night and she had found two empty beer cans when she cleaned the room.

Armed with this information, Lang returned to his office and checked Bureau of Narcotics files and discovered four or five memorandum reports dating back to 1951,...