Garcia v. United States

• Decision Date: 20 May 1963
• Docket Number: No. 19455.,19455.
• Citation: 315 F.2d 133
• Parties: Ulfrano GARCIA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

315 F.2d 133 (1963)

Ulfrano GARCIA, Appellant, v. UNITED STATES of America, Appellee.

No. 19455.

United States Court of Appeals Fifth Circuit.

March 29, 1963.

Rehearing Denied May 20, 1963.

Wellington Y. Chew, Joseph A. Calamia, El Paso, Tex., for appellant.

Frederick J. Morton, Asst. U. S. Atty., El Paso, Tex., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.

Before CAMERON, WISDOM and GEWIN, Circuit Judges.

GEWIN, Circuit Judge.

The appellant, Ulfrano Garcia, was tried by a jury and found guilty under an indictment charging him with one narcotics violation of 26 U.S.C.A. § 4744(a) (1). The substance of the charge was that Garcia as transferee failed to pay the required transfer tax on marihuana as provided by 26 U.S.C.A. § 4741(a). Being a third offender, Garcia was sentenced to a term of ten years imprisonment.¹ Notice of appeal was timely filed and this appeal is in forma pauperis.

The facts are relatively simple. On January 24, 1961, Garcia was seen emerging from the Red Star Bar in El Paso, Texas, by two federal customs agents, William F. Hughes and G. L. Latimer. Garcia got into a taxicab, but then got out of the cab and went back into the bar and came back carrying an overcoat. The cab then proceeded, and the two customs agents followed. Garcia was sitting on the passenger seat in the front of the cab. No one else was in the cab but the driver. While the cab was moving through the streets of El Paso, Garcia placed, what appeared to one of the agents to be, a cigarette in his mouth, but did not light it. At this time Agent Latimer turned on his siren to stop the cab. Agent Latimer testified that Garcia then turned around and spit the cigarette onto the floor of the cab. Garcia also made a quick motion toward the bottom of the cab as though he were putting something underneath the seat.

The cab was stopped by Agents Latimer and Hughes. A brown cigarette containing marihuana was found on the floor still wet with saliva. Two newspaper wrapped packages containing more than an ounce of marihuana were found under the seat where Garcia had been sitting. Garcia's pockets were later swept and these sweepings also contained marihuana. He had not paid the transfer tax due on the narcotics.

Garcia was indicted on April 4, 1961, and his trial commenced on October 24, 1961, nine months after the seizure. At the trial, the Government introduced, without objection, oral evidence of the arrest, search and seizure and all the circumstances surrounding the same. The evidence included the manner in which the arrest was made and the proof that the substance involved was marihuana. After all the Government testimony had been concluded, the marihuana was offered in evidence as an exhibit and for the first time, Garcia's attorney objected on the theory of illegal search and seizure in violation of the Fourth Amendment and moved to suppress the evidence.

No pre-trial motion to have the evidence returned to its rightful owner or to suppress was made. Rule 41(e) F.R. Crim.P. provides that a motion to suppress evidence "shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion;" however, the court has discretion to entertain the motion at trial. Nine months passed between the seizure and the trial. There is nothing in the record nor in the brief of Garcia to show that opportunity did not exist for making the motion before trial; or that Garcia was unaware of the grounds for making the motion. We hold that he waived any right he might have had to assert that the evidence against him was obtained by illegal search and seizure.

In Segurola v. United States, 275 U.S. 106, 48 S.Ct. 77, 79, 72 L.Ed. 186 (1927), the defendant was convicted of unlawful transportation of intoxicating liquor and contended that the trial court erred in failing to sustain defendant's motion during the trial to suppress the use of the liquor as evidence. The Court said in disposing of that argument:

"The results of the search and seizure were shown by the testimony of the chief of police and of the other witnesses without any objection on behalf of the defendants; and thus was disclosed the fact that the defendants had been engaged in transporting a large amount of liquor in the Buick. No motion was made to strike that evidence out, and no evidence was introduced to contradict what was disclosed by the statements of the chief of police and other witnesses upon this point. The only objection made toward the close of the evidence for the Government was that, when it was proposed to introduce the liquor, it had not been properly identified, but there was ample evidence to show that it had. The motion made thereafter to suppress the liquor as evidence, on the ground that there had been an illegal search, did not include a motion to strike out the evidence of the witnesses as to what occurred when the car was stopped. The objection to the seizure was plainly an after-thought."

To the same effect is Belcher v. United States, 8 Cir., 1931, 50 F.2d 573, in which the Court said:

"Applying the principles of that case Segurola v. United States to the facts in this case, it is not perceived how any prejudice resulted to the appellant from the introduction in evidence of the can and its contents, over his objection to its alleged illegal seizure, when the uncontradicted testimony of the officer who seized the can, describing it and its contents, and given without objection, fully apprised the jury of all the facts that the introduction of the exhibits disclosed."

A situation somewhat similar to the instant case arose in United States v. Romero, 2 Cir., 1957, 249 F.2d 371. There the court held that in a prosecution for selling narcotics, a motion to suppress evidence not made until the second day of trial and three months after seizure of the evidence was untimely and a denial thereof was not an abuse of discretion. The same result was reached in the Second Circuit case of United States v. Di Donato, 2 Cir., 1962, 301 F.2d 383. This Court, in Rosen v. United States, 5 Cir., 1961, 293 F.2d 938, held that when no motion to suppress was made on behalf of defendant until after the Government had completed its testimony and rested its case, the motion is waived, in the absence of any showing of a lack of opportunity to...