Ramirez v. United States

• Citation: 294 F.2d 277
• Decision Date: 23 August 1961
• Docket Number: No. 16894.,16894.
• Parties: Miguel Moran RAMIREZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

294 F.2d 277 (1961)

Miguel Moran RAMIREZ, Appellant, v. UNITED STATES of America, Appellee.

No. 16894.

United States Court of Appeals Ninth Circuit.

August 23, 1961.

Miguel Moran Ramirez, Los Angeles, Cal., in pro. per., David Dooley (appointed attorney) San Francisco, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, J. Brin Schulman, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before HAMLEY and JERTBERG, Circuit Judges, and ROSS, District Judge.

ROSS, District Judge.

I. Background

On August 21, 1958, a jury found appellant guilty on three counts of an indictment charging him with having violated 21 U.S.C.A. § 174. He filed a notice of appeal, and this Court has jurisdiction by virtue of 28 U.S.C. §§ 1291 and 1294(1). Before turning to the points appellant has specified on this appeal, we deem it advisable to summarize certain portions of the testimony.

The principal government witness was Emory Slack, a Special Employee of the Bureau of Narcotics. During the evening of April 26, 1958, Slack had a telephone conversation with appellant's nephew about the possibility of purchasing narcotics from appellant, and, the following day, the nephew introduced appellant to Slack over the telephone. During the morning of April 28, 1958, appellant telephoned Slack and arranged a meeting place. Shortly thereafter, appellant and Slack met, drove in the latter's automobile, and finally began to discuss narcotics transactions. Slack testified that appellant told him that he could supply Slack with any amount of narcotics that Slack would need; that all he had to do was to telephone Mexicali, and "within a few hours a man would be on his way with the junk;" and that although he had to be very careful, because of prior deportations and a federal criminal record, he had been supplying narcotics for two years and "it had been quite a lucrative thing for him." Before parting company, appellant advised Slack that he would notify him as soon as his shipment of narcotics arrived.

On April 30, 1958, appellant telephoned Slack and arranged a meeting place with him. Slack then met with three Federal Narcotics Agents. The latter searched him and his automobile for narcotics, discovered none, gave him $425.00 in official advance funds and retained a list of the serial numbers of the bills. Slack then met appellant at an ice cream parlor. Appellant advised Slack that, after some delay, the narcotics had arrived and he was ready to make a deal. This conversation was overheard by a Federal Narcotics Agent, who purposefully had been sitting next to Slack, and who substantiated Slack's version of it. Appellant and Slack then left the ice cream parlor, drove around for awhile in Slack's automobile, went to Slack's home, and finally selected five "drop points" for narcotics. Later the same day appellant telephoned Slack and, by means of a prearranged code, informed him that he should pick up the narcotics at drop point number three. Slack then contacted the Federal Narcotics Agents, was searched, as was his automobile, and then drove to the designated point with a Federal Narcotics Agent. Slack picked up the receptacle containing the narcotics and turned it over to the Federal Agents. The same evening, appellant telephoned Slack to inquire if the latter had picked up the narcotics.

On May 1, 1958, appellant again called Slack and arranged a meeting place. Slack went to the Federal Narcotics Agents, who conducted the usual search and made the customary check of official advance funds. Slack met appellant and, under the surveillance of a Federal Narcotics Agent, handed the $425.00 in official advance funds to appellant.

On May 6, 1958, Slack received another telephone call, this time from a woman who identified herself as appellant's wife and who inquired whether Slack wanted more narcotics. The following day, appellant twice telephoned Slack, and during the second conversation arranged a meeting place. Before driving to the designated place, with a Federal Narcotics Agent hidden in the trunk of his automobile, Slack went through the usual procedures of being searched by Agents and receiving $500.00 in official advance funds, the serial numbers of the bills having been listed. Under the surveillance of a Deputy Sheriff and a Federal Narcotics Agent, Slack handed the money to appellant and then went to a newly-selected drop point to retrieve the narcotics, which he turned over to the Agent who all this time had been hiding in the trunk.

On May 11 and 13, Slack received telephone calls from appellant's wife. She inquired as to how much narcotics Slack next wanted and told him that she and her husband were expecting a new supply within a day or two. On May 14, 1958, appellant telephoned Slack and arranged to meet him at the latter's home.

Appellant arrived at Slack's home, then left and returned with his wife and children. A Deputy Sheriff, who had been hiding in the bedroom, came forward and advised appellant that he was under arrest for violation of federal and state narcotics laws. Appellant's wife was not in the room in which appellant's arrest was made, so the Deputy asked appellant to call her in. When appellant did, the Deputy advised her that she also was under arrest for violation of federal and state narcotics laws. After the arrests were made, the Deputy searched appellant for weapons and asked his wife to put her purse on the counter, which she did. The Deputy asked her if she had any money; she responded affirmatively; he asked her to open her wallet; she did; the Deputy looked inside, saw money, but did not touch it, and then searched the purse for weapons.

Shortly thereafter, three Federal Narcotics Agents arrived, and in the presence of one of them, the Deputy asked appellant's wife where she had obtained the money. She replied that it was hers and that it had been received from a sale of property in Mexico. A little later, she repeated her story to still another Federal Narcotics Agent, and when the Agent asked appellant if the money belonged to him, appellant replied that it belonged to his wife.

One of the Agents, who speaks Spanish, testified that he overheard appellant ask his wife: "What if they search?" and she responded: "It is well hidden." When Slack later arrived and was seated next to appellant's wife, she volunteered the same information to him.

In the early evening, appellant's wife requested that she be allowed to take her children home to change their clothes. Consequently, appellant, his wife, and the children were taken to their home by three officers. The officers made various unsuccessful searches of the home, and then appellant and his wife requested that they be allowed to converse privately. Permission was granted by the Agent then in charge, and a three or four minute conversation between appellant and his wife ensued. The Agent told appellant's wife that she should finish bathing the children, since they had to go downtown; she began to cry; and appellant asked to talk to the Agent alone. He told him that he would show the Agent where he had hidden some narcotics. Then, appellant, the Agent and the Deputy drove to Slack's home, where appellant dug up a caché of narcotics near the back steps. Appellant was taken to the Federal Building and was arraigned the following morning.

All of the substances which were picked up at the various drop points and at Slack's home were found to contain heroin. Appellant was convicted on two counts charging unlawful sales of heroin and on one count charging unlawful concealing, receiving and facilitating the transportation and concealment of heroin. His wife, charged in two of the counts, was acquitted.

II. Appellant's Specifications of Error

A. As we understand appellant, he complains that, in the first place, his wife's arrest was illegal. It needs no citation of authority for this Court to hold that he has no standing to complain of the alleged unlawfulness of her arrest as such. But, the appellant asserts, he should have standing in this particular case because, assuming his wife's arrest to have been unlawful, such fact vitiates the search for and seizure of the federal advance funds from her purse, and yet, he maintains, those advance funds were admitted into evidence against him. At the conclusion of the government's case, appellant moved to suppress the money which was obtained as a result of the search of his wife's purse. The motion was denied. Presumably, appellant was relying on Rule 41(e), Fed.R.Crim.Proc., 18 U.S.C.A., which provides that a "person aggrieved by an unlawful search and seizure" may move to suppress any evidence obtained thereby. It is clear that appellant had no standing to make such a motion, for in the recent case of Jones v. United States, 1960, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, the Supreme Court observed:

"In order to qualify as a `person aggrieved by an unlawful search and seizure\' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else."

In this connection, it is important to note that at all times both appellant and his wife have asserted that the seized money belonged to the wife, not to appellant. We cite, by way of example, the following cases which have held that in order to suppress evidence the movant must at least claim that he owned the seized property, that he had a proprietary or possessory interest in it, or that it "belonged" to him. Elkins v. United States, 9 Cir., 1959, 266 F.2d 588, 595, reversed on other grounds 1960, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669; United States v. Ponder, 4 Cir., 1956, 238 F. 2d 825, 829; Wilson v. United States, 10 Cir., 1955, 218 F.2d 754, 756; Reichert v. Commissioner, 7th Cir., 1954...