Jack v. United States

• Decision Date: 28 November 1967
• Docket Number: No. 20983.,20983.
• Citation: 387 F.2d 471
• Parties: Richard JACK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

387 F.2d 471 (1967)

Richard JACK, Appellant, v. UNITED STATES of America, Appellee.

No. 20983.

United States Court of Appeals Ninth Circuit.

November 28, 1967.

David H. Bowers, G. Michael Priest, San Jose, Cal. (argued), for appellant.

Cecil F. Poole, U. S. Atty., San Francisco, Cal., William B. Shubb, Sp. Asst. to U. S. Atty., Sacramento, Cal. (argued), for appellee.

Before HAMLEY and MERRILL, Circuit Judges^*.

MERRILL, Circuit Judge:

Appellant, following jury trial, was found guilty on two counts of narcotics violations designated as counts 1 and 3. He was sentenced to imprisonment for terms of 20 years on each count, the sentences to run concurrently. Upon this appeal error is assigned in four respects.

1. Assignment of error is not available to appellant as to the instruction of which he complains, since no objection was interposed at trial. Rule 30, F.R.Cr.P. Moreover, we recently upheld a similar instruction in Robison v. United States, 379 F.2d 338 (9th Cir. 1967).

2. There is no merit in appellant's contention, as to count 1, that it was error to receive evidence of a conversation transmitted to a state narcotics agent by means of a Fargo device concealed on an informer who was purchasing narcotics from appellant. Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); Todisco v. United States, 298 F.2d 208 (9th Cir.), cert. denied, 368 U.S. 989, 82 S.Ct. 602, 7 L.Ed.2d 527 (1962). Here the testimony of the officer who overheard the conversation was used solely to corroborate the informer's testimony, as were the recordings in Lopez and Todisco. That the conversation took place in appellant's home does not distinguish this case from those previously cited. His home was, at the time, being used as a place of business and the recorded conversation concerned solely the specific business transaction for which the informer had been invited into it. As the Supreme Court said recently in Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966):

"When * * * the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street."

3. Appellant contends as to count 3 that it was error to deny suppression of heroin obtained as the result of what he asserts was an unlawful search. The search was without warrant but was incident to an arrest. Appellant's first challenge to the search is an attack upon the validity of the arrest to which it was incident.

The arrest was pursuant to a warrant. At the time of trial the warrant and the affidavit on which it was based had been lost. However, the incident on which this count was based followed by some three months that which was the basis for count 1. Clearly appellant was then subject to arrest for the count 1 violation. Since the police were in possession of the information given by the informant-purchaser and the agent who overheard his conversation with appellant, there can be no question but that probable cause for the arrest existed.

This does not, however, establish that the warrant was validly issued and that an arrest pursuant to the warrant was valid. We do not have testimony that information as to the count 1 offense was communicated to the magistrate who issued the arrest warrant and that the count 1 offense was the basis for the warrant. Nor can we assume that such was the case.

The Government, however, contends on appeal that the count 1 offense constituted sufficient grounds for arrest without a warrant, presumably under 26 U.S.C. § 7607 or California law. This contention was not made at trial. Where such failure has prejudiced the defendant by denying him opportunity to rebut the contention of probable cause, the Supreme Court has held the contention barred on appeal. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

We do not find such prejudice here. All the evidence upon which appellant's conviction on count 1 was based was in the hands of the Government prior to the arrest. Evidence which supports a conviction a fortiori constitutes probable cause for an arrest without warrant. Appellant had ample opportunity to attack this evidence at trial, and did so, albeit in an attempt to show its insufficiency for conviction. We fail to see how he was prejudiced by not being allowed to attack the same evidence separately as insufficient to support his arrest in the absence of a valid warrant.

The arrest, then, was valid as a warrantless arrest for the count 1 offense.

Appellant further challenges the search upon the ground of unlawful entry into his home by the arresting officers. The record contains testimony that the officers had knocked, announced their identity and the fact that they had an arrest warrant, heard movement within the apartment, and, being denied admittance, had entered by means of a passkey secured from the landlord. Entry by a passkey obtained without permission of the tenant constitutes a "breaking." Munoz v. United States, 325 F.2d 23 (9th Cir. 1963). As such, it must be tested by federal standards under which such a "breaking" is allowed for the purpose of making an arrest, embodied in 18 U.S.C. § 3109. See Sabbath v. United States, 380 F.2d 108 (9th Cir. 1967). Viewing the evidence in the light most favorable to the Government, Cognetta v. United States, 313 F.2d 870 (9th Cir. 1963), we find those requirements met here.

Appellant finally challenges the search itself as unreasonably broad under United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), has obliterated the former distinction between searches for "mere evidence" and those for "fruits or instrumentalities" of crime. We do not, however, read Hayden as sanctioning, without a warrant, an unbounded search of an entire apartment for evidence of any crime. "General exploratory searches" of the type condemned in United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932), must still be suspect.

The search incident to arrest is a narrow exception to the warrant requirement which must still meet the Fourth Amendment test of reasonableness. See Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). If a search for evidence of crime is justified as incident to an...