Spurlock v. United States

• Decision Date: 28 December 1961
• Docket Number: No. 17225.,17225.
• Citation: 295 F.2d 387
• Parties: Eugene SPURLOCK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

295 F.2d 387 (1961)

Eugene SPURLOCK, Appellant, v. UNITED STATES of America, Appellee.

No. 17225.

United States Court of Appeals Ninth Circuit.

September 12, 1961.

Rehearing Denied December 28, 1961.

George Van Hoomissen and Edward N. Murphy, Portland, Or., for appellant.

C. E. Luckey, U. S. Atty., Joseph E. Buley, Asst. U. S. Atty., Portland, Or., for appellee.

Before HAMLIN, MERRILL and KOELSCH, Circuit Judges.

MERRILL, Circuit Judge.

Appellant was arrested without warrant by federal narcotics agents on February 25, 1960, at the Portland, Oregon, airport after arriving there by airplane. He was then searched and a quantity of narcotic drugs was recovered from his possession. A motion to suppress evidence was denied. He was tried and found guilty, the narcotics recovered by the search being introduced in evidence over his objection. Upon this appeal from judgment of conviction appellant contends that the arrest was made without probable cause and that the search and seizure were unlawful since they were not incidental to a lawful arrest.

This contention we must reject upon the authority of Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed. 2d 327. In that case probable cause was supplied by a special employee of the Bureau of Narcotics at Denver who had previously given accurate and reliable information to the federal narcotics agents. The informant told the agent that the defendant had taken up residence in Denver and was supplying narcotics to several addicts in that city. Later the informant told the agent that the defendant had gone to Chicago by train to secure heroin and that he would return with a supply of the drug on the following morning or the morning of the next day. He furnished a detailed description of the defendant, of the clothing he was wearing, that he would be carrying a tan zipper bag and that he habitually walked fast. On the morning of the second day, officers observed a person meeting the description arrive by train. He was arrested and searched and found to be in possession of narcotics. It was held that there was probable cause for arrest and that the search and seizure were lawful. The court, 358 U.S. at page 313, 79 S.Ct. at page 333, quoted from two earlier cases of the Supreme Court:

"`In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.\' Brinegar v. United States, supra, 338 U.S. 160 at 175 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. Probable cause exists where `the facts and circumstances within the arresting officers\' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that\' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 45 S.Ct. 280, 288, 69 L.Ed. 543."

In Jones v. United States, 1960, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed. 2d 697, the court referred to the Draper case in the following language:

"In testing the sufficiency of probable cause for an officer\'s action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observations, so long as the informant\'s statement is reasonably corroborated by other matters within the officer\'s knowledge. Draper v. United States, 358 U.S. 307 79 S.Ct. 329, 3 L.Ed.2d 327. We there upheld an arrest without a warrant solely upon an informant\'s statement that the defendant was peddling narcotics, as corroborated by the fact that the informant\'s description of the defendant\'s appearance, and of where he would be on a given morning (matters in themselves totally innocuous) agreed with the officer\'s observations."

In the case before us appellant was personally known to the narcotics agents. The bureau also was acquainted with a Myrtle Cutchlow, who had previously informed officers of her source of narcotics in Tia Juana, Mexico, and of the method she employed in having them delivered to her across the border in San Diego. From various addicts the agent secured information that appellant was in Portland and was furnishing drugs to peddlers. On or about February 21 or 22, appellant and Cutchlow were located together at a motel. On February 24 a check of phone records revealed calls from the unit they were occupying to Cutchlow's source in Tia Juana and to a motel in San Diego. Although a watch was kept at the motel, appellant could not be located there on February 24. Information that appellant had left Portland to secure narcotics was given to the officers by an informer who had previously proved reliable. The informant gave as the source of his information a statement to him by an...