Smith v. United States, No. 21886.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JONES and BELL, Circuit , and JOHNSON
• Citation: 357 F.2d 486
• Parties: Willis SMITH and Resolute Insurance Company of Hartford, Connecticut, Appellants, v. UNITED STATES of America, Appellee.
• Decision Date: 23 February 1966
• Docket Number: No. 21886.

357 F.2d 486 (1966)

Willis SMITH and Resolute Insurance Company of Hartford, Connecticut, Appellants,
v.
UNITED STATES of America, Appellee.

No. 21886.

United States Court of Appeals Fifth Circuit.

February 23, 1966.

357 F.2d 487

George Nicholas, J. Edward Worton, Howard W. Dixon, Miami, Fla., for appellants.

Robert C. Josefsberg, Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., Miami, Fla., for appellee.

Before JONES and BELL, Circuit Judges, and JOHNSON, District Judge.

357 F.2d 488

JOHNSON, District Judge.

Resolute Insurance Company of Hartford, Connecticut, brings this appeal alleging, inter alia, error in the trial court's refusal to remit and set aside forfeiture of appellant's $5,000 bail bond. Appellant Smith appeals from his conviction for violating certain federal narcotics laws on the grounds that (1) the two indictments returned against him were improperly consolidated for trial and (2) the evidence used against him was illegally seized in violation of his Fourth Amendment rights.

On January 15, 1964, appellant Smith was indicted by a federal Grand Jury for possession, sale and illegal importation of narcotics in violation of 26 U.S.C. §§ 4704(a) and 4705(a), and 21 U.S.C. § 174. Smith's bond was set at $5,000 and executed by appellant Resolute Insurance Company as surety.

The evidence reflects that on January 31, 1964, two federal agents went to Smith's apartment and placed him under arrest on the January 15 indictment. At the time of this arrest Smith was searched, and two heroin pills and an automatic pistol were removed from his person. Shortly thereafter, the Grand Jury returned a second indictment charging Smith with possession and illegal importation of narcotics pursuant to 26 U.S.C. § 4704(a) and 21 U.S.C. § 174. On this indictment, the bond was set at $10,000 and again the appellant Resolute Insurance Company signed as surety.

On April 4, 1964, the trial of Smith began on the first indictment. Smith arrived at the courtroom approximately one half hour late, and on the second day failed to appear altogether. Because the second day of trial on the first indictment was also the day the trial was scheduled to commence on the second indictment, the trial court forfeited both bonds.

Smith was subsequently apprehended and, over his objection, the cases were consolidated for trial. During the course of the trial, Smith's motion, timely made, to suppress the introduction of the evidence seized from his person was also denied. Following Smith's conviction, and upon appropriate application of Resolute, the trial judge set aside the forfeiture of the $10,000 bond, but refused to set aside or remit any portion of the $5,000 forfeiture.

I.

Appellant Smith contends that the search of his person without a warrant but at the time of his arrest was violative of his Fourth Amendment rights, and, therefore, that the evidence seized was improperly admitted at his trial. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). As to this contention, it is appropriate to observe that the Fourth Amendment does not require every search and seizure to be effected under the authority of a search warrant. Searches and seizures incident to a lawful arrest¹ have long been recognized as an exception to the rule requiring a warrant. Harris v. United States, 331 U.S. 145, 150-151, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). The applicable rule is stated in Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1915):

The right without a search warrant contemporaneously to search persons lawfully arrested while committing

357 F.2d 489

crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158 45 S.Ct. 280, 69 L.Ed. 543; Weeks v. United States, 232 U.S. 383, 392 34 S.Ct. 341, 58 L.Ed. 652.

There is substantial support for the principles announced in the Agnello decision. See, for example, Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 674 (1964); Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed. 2d 668 (1960); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Harris v. United States, supra. These authorities make it abundantly clear, without further analysis, that the search and seizure in the instant case was well within the permissible area of "search incident to arrest." There was no error, therefore, in the admission of the seized evidence.

Smith's other contention is that there was error in the consolidation of the two indictments for trial. We disagree. The procedural rule under which the trial court acted provides:

The court may order two or more indictments * * * to be tried together if the offenses * * * could have been

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