Jones v. United States, 21357.

• Decision Date: 09 February 1965
• Docket Number: No. 21357.,21357.
• Parties: Melvin JONES, Harold James Cutno and Clifford John Woods, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

339 F.2d 419 (1964)

Melvin JONES, Harold James Cutno and Clifford John Woods, Appellants, v. UNITED STATES of America, Appellee.

No. 21357.

United States Court of Appeals Fifth Circuit.

December 22, 1964.

Rehearing Denied February 9, 1965.

Adolph J. Levy, Milton P. Masinter, Bernard A. Horton, New Orleans, La., for appellant.

John C. Ciolino, Asst. U. S. Atty., Louis C. LaCour, U. S. Atty., New Orleans, La., for appellee.

Before JONES and BELL, Circuit Judges, and HUNTER, District Judge.

JONES, Circuit Judge:

The appellants and a codefendant, James Gary Martin, were charged in a two-count indictment with a violation of 21 U.S.C.A. § 174. The first count specified certain acts done in conspiracy with each other and the second count specified that the defendants "did unlawfully, wilfully, knowingly and feloniously receive, conceal and facilitate the concealment of 19.88 grams of heroin hydrochloride in 301 capsules, 110 milligrams of bulk heroin hydrochloride and 180 milligrams of heroin hydrochloride in 58 capsules, knowing the same heroin hydrochloride to have been imported in the United States contrary to law."

All defendants filed timely motions to suppress the evidence sought to be used in the trial of this matter. After a hearing on the motion to suppress, the court overruled appellants' motions to suppress. The case was tried and the jury found the three appellants guilty as charged. The defendant James Gary Martin had previously pleaded guilty to the indictment. The court sentenced each of the appellants to six years on each count, the sentences to run concurrently. On this appeal, we review the conviction and sentence.

During the trial the appellants reurged their objection to the admission of said evidence and moved for directed verdict of acquittal, both of which were overruled.

The undisputed facts are that Agent Chandler of the United States Bureau of Narcotics heard rumors that narcotics were available somewhere along Shrewsbury Road in Jefferson Parish, Louisiana, at which time he contacted a Mr. Marsalis, the owner and operator of the Marsalis Mansion Motel. Mr. Marsalis indicated suspicions that the occupants of Room 7 were engaged in illegal activity, the type of which was not known. On instructions from Agent Chandler the contents of the wastebasket in Room 7 were saved and shown to the agents. At the request of Agent Chandler, Mr. Marsalis permitted the agents to enter Room 6 of the motel, which is next door to Room 7.

The physical arrangement of the rooms is such that Room 6 and Room 7 have one common party wall. Built into this common wall and forming a part thereof is a dual gas heating unit, designed to warm both rooms. Near the base of this unit is a control panel which lifts out by using a finger in a hole in the panel. The unit as a whole protrudes into each room a few inches. With the panel in place one cannot see or hear into the adjoining room. With the panel removed some vision and hearing are possible. During their vigil the agents removed the panel in Room 6. The corresponding panel in Room 7 had been removed previously by some unknown person.

After the agents had waited about an hour Martin and Cutno arrived in Room 7, followed five minutes later by Jones and Woods. Through the space in the common wall where the heating unit had been located before the removal the agents overheard a conversation among the four occupants of Room 7 concerning the price of heroin, discussion of a place...