Johnson v. United States

• Decision Date: 17 September 1959
• Docket Number: No. 16457.,16457.
• Citation: 270 F.2d 721
• Parties: Robert JOHNSON and Dona Johnson, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F.2d 721 (1959)

Robert JOHNSON and Dona Johnson, Appellants, v. UNITED STATES of America, Appellee.

No. 16457.

United States Court of Appeals Ninth Circuit.

September 17, 1959.

Morris Lavine, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert D. Hornbaker, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before MARTIN, CHAMBERS and BARNES, Circuit Judges.

MARTIN, Circuit Judge.

Appellants, husband and wife, were convicted on charges of transferring marijuana and of its concealment in violation of the anti-narcotic laws of the United States. The statutes charged as violated were Title 26, section 4742(a), and Title 21, section 176a, of the United States Code. The husband drew a total sentence of ten years and the wife received a sentence of five years.

Briefly stated, the background facts are that two persons, who were arrested for the sale and possession of marijuana, stated to federal agents that their source of supply was appellant Robert Johnson, whom they correctly described. Robert and Dona Johnson lived together in an apartment in Malibou, California. In conformity with arrangements made by a special employee of the Federal Bureau of Narcotics, Adrienne Simmrin and the special employee drove together to the Johnsons' apartment. Miss Simmrin went into the apartment for a few minutes and met Robert Johnson there. She received two envelopes containing 690 grains of marijuana, for which she paid the appellant, Robert Johnson, twenty dollars. The money had been supplied her by the special employee. This transfer of narcotics on November 14, 1957, constituted that upon which appellant Robert Johnson was convicted under Count One of the indictment.

After this transaction involving Robert Johnson, Miss Simmrin was driven back to her apartment by the special employee in his automobile. He later turned the marijuana over to two federal narcotic agents, Lang and Jackson.

Twelve days later, on November 26, 1957, Agent Katz of the Bureau of Narcotics furnished the special employee with twenty dollars in marked currency. The special employee again carried Miss Simmrin from her apartment to the address of the Johnsons on Pacific Coast Highway, arriving there around one o'clock in the afternoon. She went to the apartment; and, receiving no answer to her knock on the door or to her ringing of the bell, she returned to the special employee's car. In another hour, she went again to the Johnsons' apartment. For the second time, she received no answer to her knock on the door. She drove away with the special employee again, to return in half an hour. On the third trip of the day, appellant Dona Johnson answered the knock.

Miss Simmrin entered the apartment and remained some ten minutes before going back to the special employee's car. The special employee gave a pre-arranged signal to narcotic agents that Miss Simmrin had bought some marijuana and drove away with her in his car.

When the special employee and Miss Simmrin had driven approximately a half mile, the narcotic agents arrested Adrienne Simmrin. They found in her possession two plastic packages of marijuana, which she had bought from Dona Johnson. The agents testified that they had no advance knowledge that Miss Simmrin and the special employee were going to the Johnsons' apartment on November 26, but that they had kept the employee's car under surveillance. About an hour's time was required to reach the apartment from the Federal Building.

Immediately after Miss Simmrin's arrest, several narcotic agents went to the Johnson apartment. When they knocked, or rang the door bell, they were met at the door by Dona Johnson. Government testimony was to the effect that, before entering the apartment, Agent Lang showed Dona Johnson his credentials, informed her that he was a federal narcotic agent, and told her that she was under arrest for selling marijuana to Adrienne Simmrin. Search of the apartment occurred between 3:45 and 4:50 P. M.

Soon after the apartment was searched, with Dona Johnson present, appellant Robert Johnson drove up in a Cadillac automobile and while still in the car, was arrested by one of the agents. Four agents then searched the car in the presence of appellant; and one of the agents found under the front seat of the automobile an envelope containing marijuana. This was the marijuana charged in Count Four as having been "concealed" by Robert Johnson.

That a person knowingly concealed narcotics may be proved by circumstantial evidence. Mullaney v. United States, 9 Cir., 82 F.2d 638; Rosenberg v. United States, 9 Cir., 13 F.2d 369. The circumstantial evidence relating to the knowing-concealment charge against Robert Johnson in Count Three is evinced by the fact that he lived in the apartment where marijuana was found and that he had sold marijuana to Adrienne Simmrin in that apartment on November 14, 1957. The knowing concealment, as charged in Count Four, is evinced by Robert Johnson's ownership of the Cadillac car in which marijuana was found and by the fact that he had been driving the automobile immediately before the search. Circumstantial evidence against Dona Johnson relating to knowing concealment, as charged in Count Three, is supported by the fact that she lived in the apartment and was there when marijuana was found both in the bedroom and the kitchenette of the apartment.

Appellants contend that there is insufficient evidence to support the verdicts and the judgments of conviction entered thereon. It is well established that a conviction should be upheld if there is substantial evidence to support the verdicts, considering the evidence in the light most favorable to the Government. United States v. Glasser, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Arena v. United States, 9 Cir., 226 F.2d 227, 229, certiorari denied 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830; Schino v. United States, 9 Cir., 209 F.2d 67, 72, certiorari denied 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087; Woodard Laboratories v. United States, 9 Cir., 198 F.2d 995, 998; O'Leary v. United States, 9 Cir., 160 F.2d 333.

Appellants charge that there was unlawful search and seizure by the narcotic agents contrary to the Fourth and Fifth Amendments to the Federal Constitution. A search of the person and of the place where an arrest is made — if under the control of the person arrested and where the crime is being committed — is valid without a search warrant, where the search is incident to a lawful arrest. Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145; Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543; Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652; United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 94 L.Ed. 653.

Section 104(a) of the Narcotic Control Act of 1956, 70 Stat. 570, 26 U.S.C.A. §§ 7607, 7608, provides that narcotic agents may make arrests without warrants where violations of the anti-narcotic laws are committed in the presence of an arresting officer, or where the officer has reasonable ground to believe that the person arrested has committed or is committing such violation.

Upon the authority of Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879, and Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327, we are of opinion that the narcotic agents in the instant case had probable cause and reasonable grounds to arrest both Robert Johnson and his wife, Dona Johnson. The entire apartment was under the control of Dona Johnson. See Hamer v. United States, 9 Cir., 259 F.2d 274, certiorari denied 359 U.S. 916, 79 S.Ct. 592, 3 L.Ed.2d 577, petition for rehearing denied 359 U.S. 962, 79 S.Ct. 799, 3 L.Ed.2d 769; Harris v. United States, 331 U.S. 145, 151, 152, 67 S.Ct. 1098, 91 L.Ed. 1399. The search of Robert Johnson's Cadillac, incident to his arrest, was in our judgment also valid. There was adequate probable cause to believe that the automobile was being used in the commission of a crime. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

We find no merit in the contention of appellants that the district court erred in declining the request of defendants' counsel...