Euziere v. United States, 6013.

Decision Date03 June 1959
Docket NumberNo. 6013.,6013.
Citation266 F.2d 88
PartiesRobert Leon EUZIERE, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Carmon C. Harris, Oklahoma City, Okl., for appellant.

George Camp, Asst. U. S. Atty., Oklahoma City, Okl. (Paul W. Cress, U. S. Atty., Oklahoma City, Okl., and Jack R. Parr, Asst. U. S. Atty., Edmond, Okl., on the brief), for appellee.

Before HUXMAN, MURRAH and BREITENSTEIN, Circuit Judges.

HUXMAN, Circuit Judge.

By this appeal, appellant challenges the judgment and sentence of the trial court imposed upon him as a result of a trial by jury in a consolidated trial of two indictments charging him with narcotic law violation.

He complains, (1) that the trial court erred in overruling his motion to suppress certain evidence obtained as a result of an illegal search by state officers; (2) that the trial court was without jurisdiction of one of the causes because it was pending on appeal in the Circuit Court at the time of the trial; and, (3) that the trial proceedings are void because he was denied the right of a speedy trial as guaranteed him by the Federal Constitution, Amend. 6.

A somewhat detailed statement of the facts is necessary to consider these assignments of error. Originally indictment Number 17,512 charged the defendant in six counts with violation of the Federal Narcotics Laws. Appellant filed a motion to suppress the evidence with respect to narcotics obtained as a result of a search by the State officers. The motion to suppress was overruled. Thereupon, counts 2, 3, 5 and 6 were dismissed and appellant entered a plea of guilty to counts 1 and 4, and received sentences of ten years on each count which were made to run consecutively. On appeal, the judgment was reversed and the case was remanded with directions to grant a new trial. On February 4, 1958, the trial judge vacated the original judgment and sentence and reinstated the case and assigned it to another judge for trial. From that order the defendant appealed to this court. On September 4, 1958, the appeal was dismissed without prejudice, the court holding that it was not an appealable order. On January 14, 1958, a new indictment of four counts (Indictment Number 17,920) was returned against defendant. These counts were the identical counts of Indictment Number 17,512 which had been dismissed. On February 28, 1958, the two indictments were consolidated for the purpose of trial. Thus, the defendant went to trial a second time on the same six counts which were originally contained in the original indictment. A motion to suppress the evidence, similar to the one in the original trial, was filed and overruled. Trial to a jury resulted in a verdict of guilty on all counts. The court sentenced the appellant to a cumulative sentence of forty years and imposed a fine of $700.

It is conceded that the search by state officers, which resulted in the discovery of the marijuana and heroin, was an illegal search under federal law. It is without dispute in the law that evidence obtained as a result of an illegal search by state officers may be used by the Federal Government in a prosecution, if its agents did not participate in the illegal search. In Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 249, 71 L.Ed. 520, the Supreme Court laid down the test to be applied as follows.

"While it is true that the mere participation in a state search of one who is a federal officer does not render it a federal undertaking, the court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods.1

The test in all cases is did the federal authorities participate in any way in the search? The answer in each case must depend on the facts of the particular case. We must be realistic in our approach to the problem. There may be participation although the federal agent was not present. There may be participation even though the federal agent did not know that a search was contemplated. So, likewise, there may be lack of participation even though the federal agent was present. There must in all cases be good faith conduct. If by tacit agreement or by a course of conduct, it is understood or becomes apparent that the result of a search by state officers is to be turned over to the federal agents, then they participate in the search as fully as though they actively participated therein.

What then are the facts of the case from which the answer must be sought? On December 17, 1955, an Oklahoma City detective, C. W. Roberts, was notified by Del City Police Department that a car belonging to appellant had been located in Del City. Del City is a suburb of Oklahoma City. The police officers of both Del City and Oklahoma City had been attempting for two or three days to locate the driver of appellant's Buick automobile as he was suspected of having been connected with an armed robbery of a supermarket in Oklahoma City. The local officers contacted an F. B. I. agent to ascertain if the defendant was wanted by that Agency. In checking their files, F. B. I. Agent Rawls found that defendant was not on their wanted list, but he did have a picture of the defendant and a girl as a result of a white slave traffic violation investigation previously conducted by the F. B. I. Upon learning that the Del City police had located the questioned automobile, Detective Roberts telephoned Rawls and arranged to meet him in order to obtain the picture before interviewing the defendant. Roberts took Rawls in the detective's police car and drove to Del City where they met with Del City officers who had temporarily lost the suspect's car. A short time later the automobile was...

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22 cases
  • U.S. v. Rumpf
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 8, 1978
    ...court of jurisdiction over the case, but that presupposes that there is a valid appeal from an appealable order." Euziere v. United States, 266 F.2d 88, 91 (10th Cir. 1959), vacated on other grounds, 364 U.S. 282, 80 S.Ct. 1615, 4 L.Ed.2d 1720 (1960) (emphasis added). See Arthur Andersen & ......
  • Stonehill v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 4, 1969
    ...Elkins majority did not quarrel with Justice Frankfurter's statement of the true limits of that doctrine. See also Euziere v. United States, 266 F.2d 88, 90 (10th Cir. 1959): "The test in all cases is did the federal authorities participate in any way in the search?" (emphasis 12 This is th......
  • Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 26, 1981
    ...writs to correct conflicting determinations of appealability by the district and appellate courts. See, e. g., Ruby; Euzuere v. United States, 266 F.2d 88 (10 Cir. 1959), vacated on other grounds, 364 U.S. 282, 80 S.Ct. 1615, 4 L.Ed.2d 1720 (1960); Hodgson v. Mahoney, 460 F.2d 326 (1 Cir.),......
  • Leonhard v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 28, 1980
    ... ... Infant, Plaintiffs-Appellants, ... The UNITED STATES of America; United States Department of ... Justice; Hon. Griffin ... denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967); Euziere v. United States, 266 F.2d 88, 91 (10th Cir. 1959), vacated on other ... ...
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1 books & journal articles
  • Dirty Silver Platters: The Enduring Challenge of Intergovernmental Investigative Illegality
    • United States
    • Iowa Law Review No. 99-1, November 2013
    • November 1, 2013
    ...Government, or whether it was conducted solely by state officers acting exclusively for state purposes.”); Euziere v. United States, 266 F.2d 88, 90 (10th Cir. 1959) (“The test in all cases is did the federal authorities participate in any way in the search?”). 212 . See supra Part II. 213.......

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