Rodgers v. United States, 16020.

• Citation: 267 F.2d 79
• Decision Date: 11 May 1959
• Docket Number: No. 16020.,16020.
• Parties: E. Nadine RODGERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

267 F.2d 79 (1959)

E. Nadine RODGERS, Appellant, v. UNITED STATES of America, Appellee.

No. 16020.

United States Court of Appeals Ninth Circuit.

May 11, 1959.

Thomas H. Ludlow, Jr., Los Angeles, Cal., Harry D. Steward, San Diego, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Leila F. Bulgrin, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant appeals from the judgment of the district court, sitting without a jury, a jury having been expressly waived in writing and in open court by the appellant, finding her guilty of the offense¹ of illegal importation of narcotics and sentencing her to custody for five years.

We will first outline the history of the proceedings leading up to the judgment from which appellant appeals in order to properly posture the grounds on which appellant relies for reversal.

There is no claim by appellant that she did not illegally import narcotics from the Republic of Mexico to the United States. Included in the written stipulation filed with the district court, to which further reference hereafter appears, is the following: "It is hereby further stipulated by and between the parties that on October 11, 1957, Nadine E. Rodgers brought into the United States from Mexico the powder contained in two rubber contraceptives that were later that day found in her possession at San Diego; that upon analysis said powder was found to be and is heroin; that said heroin is the same evidence that defendants sought to suppress at the hearing of December 23 and 24 of 1957."

Appellant contends on this appeal that her conviction was illegal for the reasons and on the grounds which we will consider in the latter part of this opinion.

History of Proceedings.

Following the arrest of the appellant and her husband, Evan W. Rodgers, herein referred to as Rodgers,² and on November 12, 1957 appellant and her husband lodged a civil action in the district court, entitled "Complaint to Suppress and for Preliminary Restraining Order and Injunction." On the same day appellant's counsel requested from the court an ex parte order to restrain the defendants in the civil action from presenting evidence to the grand jury, on the ground that the heroin obtained from appellant was by a search incident to an unlawful arrest. The district court refused to grant any restraining order and refused to stay the criminal proceedings pending the determination by this Court. See Rodgers v. United States, D.C., 158 F. Supp. 670. After disposition of the matter by the district court, appellant and her husband sought writs of mandamus and prohibition from this Court. The petitions were denied by this Court. See Rodgers v. United States, supra, 158 F. Supp. at page 684.

Indictment by the grand jury was returned against appellant and her husband on November 14, 1957.

Thereafter appellant and her husband moved the district court to suppress the seized evidence under the provisions of Rule 41(e) (4), Federal Rules of Criminal Procedure, Title 18 U.S.C.A. Following the hearing, the motion was denied by the district court.

Thereafter by the written stipulation filed in the district court, and previously referred to, it was stipulated and agreed, among other things, "that the evidence introduced on hearing of the motion by defendants to suppress certain evidence (heroin) which was found in the possession of Nadine E. Rodgers, made in the above-entitled cause and heard by the Court on December 23 and 24 of 1957, may be heard and considered by the Court as evidence on trial of the merits of the above-entitled cause having the same weight and sufficiency as though introduced anew." On March 10, 1958, the district court adjudged the defendant guilty of the offense set forth in the indictment.

Appellant's Appeal.

Appellant seeks reversal of the judgment of the district court primarily on two grounds: First, that the narcotics seized from her should have been suppressed, because, appellant contends, the narcotics were obtained by a search made incident to an unlawful arrest; and, second, that the trial court prejudicially erred in refusing appellant's counsel permission to inspect certain government reports from which a government agent testified at the hearing on the motion to suppress the evidence.

In respect to the first ground, appellant contends that the arresting officer, though acting in personal good faith, did not have probable cause to arrest appellant without a warrant, and that appellant's motion to suppress the evidence should have been granted by the trial court for the reason that such evidence was obtained by a search made incident to an unlawful arrest, in violation of the rights guaranteed appellant under the Fourth Amendment of the Constitution of the United States,³ and in violation of Section 7607, Title 26 U.S.C.A. of the Narcotic Control Act of 1956.⁴

In order to properly consider appellant's contention it is necessary that we set out in detail the essential facts adduced at the hearing on appellant's motion to suppress evidence. At about 3:00 p. m. on October 11, 1957, appellant's husband and Gilbert Martinez (hereinafter referred to as Martinez), traveling together by automobile, entered the United States from Mexico at the port of entry at San Ysidro, California. After preliminary questioning by the customs inspectors at the border, they were taken to the secondary inspection area for further inspection and interrogation, on the possibility that Rodgers might be guilty of failure to register as a former narcotics violator. A search of Rodgers' car revealed a suitcase containing women's clothing and a document concerning the sale of real estate. Rodgers had on his person a cashier's check for $2,000. At about 4:00 p. m. that same afternoon United States Customs Agent Clarence Spohr arrived at the inspection station and began to interrogate Rodgers. According to Spohr, Rodgers told him that in 1952 he had been convicted of a conspiracy to violate the narcotics laws in San Francisco, for which he had been sentenced to what Spohr thought was three years; that he was a thoroughbred horse trainer, that he and his wife, the appellant here, in company with Mr. and Mrs. Martinez had come south from San Francisco on a trip; that he and Gilbert Martinez left their wives in Los Angeles, and with a Mexican lad named Manuel drove to Tijuana in order that Rodgers could visit friends at a racetrack; that while in Mexico Manuel had "cut out" and he didn't know what had happened to him; that he had not found anyone he knew at the racetrack and was returning with Martinez to the United States when he was detained at the border.

After completing his interrogation of Rodgers, Spohr began interviewing Martinez. It was then approximately 4:30 or 5:00 o'clock of the same afternoon, approximately one and a half to two hours after Martinez had been placed in custody. Martinez told Spohr that he was out on bail on a pending charge for the illegal possession of narcotics under California law, and that his latest and last injection of heroin had been three days before. Agent Spohr, an experienced customs agent, observed the hypodermic marks of a heroin addict on Martinez' arm. Martinez said that he was an informant for the Federal Bureau of Narcotics in San Francisco, and he named several federal agents with whom he said he had worked. Spohr recognized the names as those of agents he personally knew were working in the San Francisco area. After Martinez had been with Spohr a little over two hours he offered to tell the agent about Mr. and Mrs. Rodgers if the agent promised that he and his wife would not be prosecuted in connection with anything that he might tell him. Spohr replied that he was quite positive that the United States Attorney would go along with anything along those lines, and use Martinez and his wife as prosecution witnesses against the Rodgers. With this assurance, Martinez then told the following story: Martinez, his wife, appellant, Rodgers, and one Manuel Garcia, a cousin of Martinez, left San Francisco together on October 6, 1957. The object of the trip was to purchase heroin from a man named "Red" whom Manuel Garcia had described to Rodgers and Martinez as his connection from whom they could make the purchase. The entire group arrived in Tijuana on October 7, 1957, where Garcia bought some heroin from "Red". Rodgers, however, did not purchase narcotics at that time because he had no ready cash, but he did have in his possession a check for $3,200, which he had received as part payment for the sale of some real estate. All five persons then returned to the United States and proceeded to Los Angeles where Rodgers cashed his check, receiving a check of $2,000 and some cash in return. Garcia represented to Rodgers that he could purchase heroin in Los Angeles, thereby obviating the necessity of a return trip to Tijuana. Rodgers gave him $600 to make the purchase, whereupon Garcia disappeared with the money. On October 9, 1957, Rodgers, appellant, Martinez and his wife returned to Tijuana. Rodgers contacted "Red" and purchased two contraceptives full of heroin. On October 11, 1957, appellant with the heroin on her person and Mrs. Martinez were to return to the United States at about 1:00 p. m., passing through the port of entry at San Ysidro on foot. The women were then to travel by bus to San Diego and wait at the Greyhound bus depot until the men arrived in the automobile. Martinez told Agent Spohr that the two women would probably be at the Greyhound bus depot in San Diego where he and Rodgers were to meet them, and that Mrs. Rodgers would have the two pieces of heroin purchased in Tijuana on her person. Agent Spohr testified that he had never seen either Martinez or Rodgers prior to their interrogation and that he did not check any file or any report on Rodgers except to call the San Diego...