Rocha v. United States, 21111.

• Citation: 387 F.2d 1019
• Decision Date: 18 January 1968
• Docket Number: No. 21111.,21111.
• Parties: Charles Frederick ROCHA, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

387 F.2d 1019 (1967)

Charles Frederick ROCHA, Appellant, v. UNITED STATES of America, Appellee.

No. 21111.

United States Court of Appeals Ninth Circuit.

December 12, 1967.

Rehearing Denied January 18, 1968.

Edward L. Cragen (argued), San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty. (argued), San Francisco, Cal., for appellee.

Before POPE, HAMLEY and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge:

Charles Frederick Rocha appeals from his conviction on a charge of concealing and facilitating the concealment of heroin in violation of the Narcotic Drugs Import and Export Act, 35 Stat. 614 (1909) as amended, 21 U.S.C. § 174 (1964).

Rocha's only point on appeal is that the trial court should have granted his pretrial motion to suppress certain evidence and therefore erred in admitting the evidence at the trial. The evidence in question consists of 57.585 grams of heroin which was found at Rocha's service station as a result of a search made immediately after his arrest at the service station on September 23, 1965.

Rocha made a pretrial motion to suppress the evidence. Three grounds for such relief were asserted, namely: (1) the evidence was seized under color of a search warrant issued by a California state magistrate, and the state warrant is illegal under California law because the supporting affidavit is inadequate; (2) the issuing state magistrate having granted a motion to suppress the evidence on the ground that the affidavit supporting the warrant is inadequate, it was unlawful for state officers to thereafter turn over the evidence to federal officers and it was improper for federal officers to receive the same; and (3) the affidavit supporting the search warrant is insufficient under federal law.

A hearing was had on the pretrial motion to suppress, and the motion was denied. The court held that the affidavit was sufficient and, furthermore, the arrest was based on probable cause and the search incident thereto. The motion to suppress was renewed during the trial and again denied. The evidence was thereafter admitted over Rocha's objection.

On this appeal Rocha asks us to limit our review of the testimony bearing on the search and seizure to that which was received during the hearing on the pretrial motion. The Government, on the other hand, invites us to also consider all evidence received at the trial which is relevant to the search and seizure question.

In determining whether a district court erred in admitting evidence claimed to have been seized as the result of an unreasonable search, an appellate court will not ordinarily limit itself to the testimony received at a pretrial motion to suppress, but will also consider pertinent testimony given at the trial. See Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543; Rent v. United States, 5 Cir., 209 F.2d 893.

In this case, however, when the motion to suppress was renewed during the trial, the trial court inquired whether the parties desired to submit additional evidence as to the reasonableness of the search. Upon being advised that no additional testimony was to be offered, the court suggested that, in deciding the renewed motion to suppress, only the transcript of the pretrial motion be considered. Both counsel agreed to this procedure. Later in the trial, when the seized article was offered in evidence, counsel for Rocha objected on the grounds stated in his prior motion to suppress. As before stated, the objection was overruled.

Under these special circumstances, and without deciding whether we are required to do so, we will confine ourselves to the facts as revealed by the record on the pretrial motion to suppress.

At the pretrial hearing only one witness was called, Sergeant Stanley E. Shaver of the Santa Clara County Sheriff's Department. His testimony revealed that in November, 1965, his office, along with the Federal Bureau of Narcotics and the city police, was engaged in the investigation of narcotics traffic in the Santa Clara area. A federal undercover agent, Rustam Aruslan, had penetrated a small narcotics ring and, between November 16 and November 23, 1965, had made three purchases of heroin through one Frank B. Ram.

In an attempt to reach Ram's source of supply, a listening device was placed on the undercover agent. Through this means Sergeant Shaver and another federal agent were able to overhear Ram tell the undercover agent that his source of supply was of Mexican descent, operated a service station in the city of Santa Clara, and kept narcotics in the service station's safe. On the three occasions when the undercover agent gave Ram money to purchase heroin from his source, a surveillance team of federal and state agents followed Ram and his girl friend, Lavina Medina, to a service station owned by the defendant Rocha. On each occasion the middleman, Ram, later returned to the undercover agent with the requested heroin.

On the last of the three purchases, Ram and Miss Medina were arrested by the federal agent, Aruslan, when they returned with the heroin. Under questioning by federal and state officers, both named Rocha as their source of supply. Ram voluntarily agreed to telephone Rocha at the service station to ascertain if Rocha had more narcotics in his safe. Sergeant Shaver testified that federal officers monitored the conversation and someone answering as "Fred" stated that he had only "a couple of pieces or two left." At the same time an agent watching Rocha's service station reported that Rocha answered the telephone.

After the conversation a state police officer...