Fuller v. United States, 21729.
| Decision Date | 31 July 1970 |
| Docket Number | No. 21729.,21729. |
| Citation | 433 F.2d 533,139 US App. DC 375 |
| Parties | Morris FULLER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mrs. Jean F. Dwyer, Washington, D. C. (appointed by this court) for appellant.
Mr. Julius A. Johnson, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Nicholas S. Nunzio, Asst. U. S. Attys., were on the brief, for appellee. Mr. David G. Bress, U. S. Atty., at the time the record was filed, also entered an appearance for appellee.
Before McGOWAN, TAMM and MacKINNON, Circuit Judges.
This appeal from a conviction for narcotics offenses (26 U.S.C. § 4704(a) and 21 U.S.C. § 174) by the District Court, sitting without a jury, turns upon the validity of a search of appellant which revealed his possession of sixty heroin capsules. That search took place while appellant was under lawful arrest for driving a car without a permit and without lights, and while he was under overnight detention after booking. As an independent ground of decision, the court ruled that the police under these circumstances were privileged to search the person of appellant for dangerous contraband articles even though an earlier pat-down for weapons at the time of booking had elicited nothing. See Charles v. United States, 278 F.2d 386 (9th Cir. 1960). We find no error in this conclusion as applied to the facts found.1
Appellant had two prior felony convictions in the form of narcotics offenses, and received the mandatory minimum sentence of ten years. The sentencing transcript shows, however, that both defense counsel and court regarded appellant as ineligible, by reason of the two prior convictions, for consideration for disposition under Title II of the Narcotic Addict Rehabilitation Act. 18 U.S.C. §§ 4251-55. Although affirming the conviction, we vacate the sentence and remand to the District Court for resentencing in the light of our recent decision in Watson v. United States, No. 21,186, decided July 15, 1970.
It is so ordered.
1 It is argued that this second search was the fruit of an illegal search of the automobile which appellant was driving when arrested. The vehicle had been taken into the possession of the police, and the findings were that it was in the process of being made secure under police regulations, with no purpose on the part of the officer to search for criminal evidence, when there...
To continue reading
Request your trial
-
United States v. Mitchell
...United States v. Fuller, 277 F.Supp. 97 (D.D.C.1967); conviction affirmed, sentence vacated, case remanded for resentencing 139 U.S.App.D.C. 375, 433 F.2d 533 (1970). Defendant was arrested for operating a motor vehicle without running lights and without a valid driver's license. He was una......
-
State v. Goff
...United States v. Mitchell, 458 F.2d 960 (9th Cir. 1972); United States v. Fuller, 277 F.Supp. 97 (D.D.C.1967), conviction aff'd, 433 F.2d 533 (1970); Mozzetti v. Superior Court, 4 Cal.3d 699, 484 P.2d 84, 94 Cal.Rptr. 412 (1971); People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976); Sta......
-
South Dakota v. Opperman
...United States v. Smith, 340 F.Supp. 1023 (Conn.1972); United States v. Fuller, 277 F.Supp. 97 (DC 1967), conviction aff'd, 139 U.S.App.D.C. 375, 433 F.2d 533 (1970). These cases have recognized that standard inventories often include an examination of the glove compartment, since it is a cu......
-
People v. Robinson
...custodian from unfounded claims of loss of property.' In United States v. Fuller (D.C., 277 F.Supp. 97, affd. sub nom. Fuller v. United States, D.C.Cir., 433 F.2d 533) the taking of an inventory pursuant to a police regulation similar to the one before us was upheld and the denial of suppre......