Mattus v. United States
| Citation | 11 F.2d 503 |
| Decision Date | 08 March 1926 |
| Docket Number | No. 4726.,4726. |
| Parties | MATTUS v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Edward A. O'Dea, of San Francisco, Cal., for plaintiff in error.
Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
The plaintiff in error brings for review the judgment rendered against him upon his conviction on two counts of an indictment; the first charging him with violation of the Act of December 17, 1914, as amended February 24, 1919 (Comp. St. Ann. Supp. 1919, § 6287g), in selling, dispensing, and distributing morphine not then and there in nor from the original stamped package; the other charging him with violation of the Act of February 9, 1909, as amended January 17, 1914, and May 26, 1922 (Comp. St. Ann. Supp. 1923, § 8801), in receiving, buying, selling, and facilitating the transportation and concealment after importation of morphine which he knew had been imported into the United States contrary to law.
Error is assigned to the denial of the defendant's motion, made before the trial, to return to him certain property and exclude the same from evidence on the trial, on the ground that it was taken without authority of law and in violation of the Fourth and Fifth Amendments to the Constitution. The court below held that the search warrant which had been issued was insufficiently supported by affidavit, but denied the motion to exclude the evidence. It was shown that officers had instructed an informer, whom they first thoroughly searched to ascertain whether he had narcotics on his person, to enter the defendant's house and with certain marked currency which was given him purchase morphine; that they saw him enter the house and in a few minutes return therefrom and hand to the officers four packages of morphine; that thereupon the officers entered the house and arrested the defendant, and at the same time seized two packages of morphine which the defendant's wife was attempting to conceal. It was also shown by the testimony of the officers that the defendant voluntarily and without any inducement or threat upon their part admitted that he had given morphine to the said informer, but stated that he did not get any money for it, but gave it to him as a friend. In view of those facts, there was no error in denying the motion to exclude from the evidence the morphine thus seized and the facts connected with its seizure.
Incident to the arrest the officers had authority, not only to search the defendant's person, but his premises. In Agnello v. United States, 46 S. Ct. 5, 70 L. Ed. ___, the court said: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize...
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