Morales v. United States

• Decision Date: 01 May 1965
• Docket Number: No. 19441.,19441.
• Parties: Fred Rose MORALES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

344 F.2d 846 (1965)

Fred Rose MORALES, Appellant, v. UNITED STATES of America, Appellee.

No. 19441.

United States Court of Appeals Ninth Circuit.

May 1, 1965.

H. Hal Visick, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Richard A. Murphy, Asst. U. S. Atty., Chief, Crim. Sec., Robt. H. Filsinger, Asst., U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, DUNIWAY and ELY, Circuit Judges.

ELY, Circuit Judge:

Fred Rose Morales was charged, in three counts, with concealment and facilitation of concealment of certain quantities of heroin in violation of Section 174, Title 21 United States Code. In a jury trial, Morales was found guilty of the charges preferred in the three separate counts, and this appeal is from the judgment of conviction.

Morales and his wife, Patricia, resided in a dwelling located in Whittier, Los Angeles County, California, and it was in that dwelling that Morales was arrested. Prior to his arrest, the office of the Sheriff of Orange County, California, had, for some time, been in possession of two valid warrants calling for the arrest of Patricia. One of the warrants had been issued because of her failure to report to the California Youth Authority and the other because of her failure, after she had been released on her own recognizance, to make a timely appearance for answer to a charge of violating Section 11721 of California's Health and Safety Code. See Footnote #1, infra.

The arrest of Morales occurred at approximately 10 p. m. on February 6, 1964. Four days before, a Sergeant of the Orange County Sheriff's Department had been informed as to the residence of Patricia in the Whittier house. The Sergeant contacted the Sheriff's office of Los Angeles County and arranged to meet with officers from that office and arrest Patricia. At approximately 8:00 or 8:30 p. m. on the night of the arrest, the Orange County Sergeant, with an investigator, had, from the outside of the Whittier dwelling, observed Patricia on the inside but did not, at that time, attempt to take her into custody. At 10 o'clock p. m., an hour and one-half or two hours later, the Sergeant returned to the Whittier house with four officers, two of whom were stationed at the rear of the house to prevent escape, and, in company with two of the officers, entered the house without the consent of the occupants and arrested Patricia upon the warrants. At the time of her arrest, Patricia was in the living room of the home with her husband and a number of relatives who were being entertained.

Morales was known to have been a user of narcotics and, in the past, to have offended the law in respect to illicit drugs. Immediately after the arrest of Patricia, one of the entering officers approached Morales and asked him whether or not he was then using narcotics. Morales replied that he was "dirty," a description which characterized him, in the vernacular commonly employed by drug addicts, as one using narcotics at the time. At the request of one of the officers, Morales displayed his arms, and on both of them appeared recent puncture wounds which, according to the testimony of one of the experienced officers, evidenced recent injection of narcotics. It was also noted, by at least one of the officers, that the movements of Morales were slow and that his eyes were constricted. From this, the officers concluded that Morales was "slightly" under the influence of narcotics, and he was placed under arrest for violation of Section 11721 of California's Health and Safety Code.¹

Patricia had expressed unwillingness to converse with the arresting officers in the presence of her relatives and requested two of the officers to accompany her into the bedroom. There, with the bedroom door closed, she admitted that she, too, was using narcotics and displayed her arms marked with punctures. Upon inquiry, Patricia denied the presence of narcotics in the house and told the officers that they might conduct a search. Immediately the bedroom and adjoining closet were searched, and in a man's coat, packages of heroin, together with narcotics paraphernalia, were discovered. Morales was then brought into the bedroom and, upon being confronted with the packages, admitted their ownership while protesting that his wife was unaware of their existence.

Thereafter, Morales was held in the custody of State officers until around noon of the following day, at which time he was transferred to the custody of Federal authorities. From approximately 1:30 or 2:00 p. m. on February 7, 1964, until approximately 3 p. m. on the same day, Morales was interviewed by Federal narcotics agents in an office located in the Federal Building in Los Angeles. During the interview, the Federal agents questioned Morales concerning the confiscated packages of heroin and told Morales that "any cooperation he gave the Government would be reported to the United States Attorney's office." Morales then admitted, according to the testimony given by one of the interviewing Federal officers during the trial, that he had purchased the narcotic in Mexico and transported it into the United States.

Morales has been ably defended by court appointed counsel, both here and in the Court below. It has been insisted, first in a motion to suppress evidence, second by timely objection, and third in contentions made here, that Morales was illegally arrested and that his home was illegally searched. We must reject these contentions. The officers entered the house armed with valid warrants directing them to apprehend one of the joint permanent residents of the dwelling. Once they were lawfully inside, Morales freely advised them, upon inquiry being made, that he was then using narcotics. Moreover, his physical appearance furnished evidence of the use, and he voluntarily exposed his puncture-marked arms for examination. It then became the right, as well as the duty, of the officers to arrest him for violation of Section 11721, California Health and Safety Code.² He was, according to his uncoerced admission and his appearance, under the influence of narcotics in the presence of the officers. No warrant is required for the arrest by California officers of one whose arrest is made during his violation of the law in the presence of the arresting officers. Section 836, California Penal Code. Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876 (1952), People v. Russell, 196 Cal.App.2d 58, 16 Cal.Rptr. 228 (1961). See also, Rodgers v. United States, 267 F.2d 79, 85 (9th Cir. 1959).

Morales contends that entrance to his home was illegally gained through sham. He claims that the avenue of legal entry which was furnished by warrants running to Patricia was actually taken for the purpose of arresting him. He urges that we should reason that if Patricia were the person whose arrest were really sought, she would have been arrested when observed by the two officers an hour and one-half or two hours before the entry into the home was made. He urges, further, that it was unnecessary to employ the combined force of five officers to arrest the twenty year old Patricia and that the whole circumstances disclose, not a legitimate aim to arrest Patricia, but on the contrary, an illegal scheme to search for evidence which would incriminate him when there existed no evidence which would justify the issuance of a warrant for such search.

These contentions, while imaginative, have no substantial merit. It would be unique and improper for this court to concern itself with the precise timing of arresting action taken under warrant. The record does not disclose that the officers had any knowledge whatsoever of the temperaments, dispositions, or characters of those who, other than the permanent occupants, were present in the home at the time the entry was made. It would be grave, indeed, for this court, or any court, to make a pronouncement which might influence police officers further to imperil themselves in their hazardous duty by reducing the number of participants in an arresting party obliged to move into the company of two persons thought to have used narcotics in the past and other adult persons who might possibly offer resistance and even violence.

The receiving into evidence of the admissions made by Morales immediately before and after his arrest is challenged upon the assertion that since Morales was under the influence of narcotics, it necessarily follows that his faculties were impaired to an extent such as to compel a conclusion that the admissions were made involuntarily. The record does not support the factual premise upon which the point is based. While there was evidence, as stated above, that Morales appeared to be "slightly under the influence of narcotics," there was also evidence that during the time of the conversations at the place of arrest, the speech of Morales was not impaired and that he answered questions in such a manner as to negate the then existence of drug induced mental disability. In this state of the record, there is no justification for disturbing the determination of the trial judge as to the propriety of receiving the incriminating admissions into evidence. United States v. Page, 302 F.2d 81, 85 (9th Cir. 1962), Chessman v. People, 205 F.2d 128, 129 (9th Cir. 1953), cert. den., 1953, 346 U.S. 916, 74 S.Ct. 278, 98 L.Ed. 412, rehear. den., 1954, 347 U.S. 908, 74 S.Ct. 430, 98 L.Ed. 1066.

It is urged that, assuming the lawful arrest of Morales, the officers, in searching the bedroom and adjoining closet, unconstitutionally extended the scope of the search beyond permissible limits. We do not agree. The Fourth Amendment of the Constitution prohibits "unreasonable searches and seizures", but, as was said in Go-Bart Importing Co. v. United States, 1931, 282 U.S. 344, at 357, 51 S.Ct. 153, at 158, 75 L.Ed. 374, at 382, "There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances." In a later opinion, the...