U.S. v. Gulma

• Decision Date: 23 September 1977
• Docket Number: Nos. 76-3188 and 76-3395,s. 76-3188 and 76-3395
• Citation: 563 F.2d 386
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manoon GULMA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sukit APICHATTHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 386

563 F.2d 386

UNITED STATES of America, Plaintiff-Appellee, v. Manoon GULMA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Sukit APICHATTHAM, Defendant-Appellant.

Nos. 76-3188 and 76-3395.

United States Court of Appeals, Ninth Circuit.

Sept. 23, 1977.

Rudolf A. Diaz, Deputy Federal Public Defender, Herbert Weit, Los Angeles, Cal., (argued), for defendants-appellants.

Anstruther Davidson, Asst. U. S. Atty., Los Angeles, Cal. (argued), for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT and KENNEDY, Circuit Judges, and McNICHOLS, ^* District Judge.

KENNEDY, Circuit Judge:

Sukit Apichattham and Manoon Gulma, the appellants here, were each indicted on one count of conspiracy to distribute heroin, a violation of 21 U.S.C. § 846, and on one count of possession of heroin with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). Gulma was indicted on a third count for unlawfully carrying a firearm during the commission of a felony, but as to that matter the trial court granted a motion for acquittal before the case was submitted to the jury.

The jury found Apichattham guilty on both the conspiracy and the possession charges, and it found Gulma guilty on the conspiracy count only. On appeal, appellants argue principally that the trial court erred in denying their motions to suppress incriminating evidence. They also contend that they were prejudiced by the jury's seeing exhibits in the courtroom that were not admitted in evidence, that there was insufficient evidence, and that the trial court erred in various rulings during the course of the proceedings. For the reasons set forth below, we reject the above contentions and affirm the convictions.

Apichattham and Gulma's major contention on this appeal is that a quantity of heroin was discovered by an illegal search and that the district court erred in denying their motion to suppress. The Government contends there was a valid consent for the warrantless search. The facts, considered in favor of the Government, United States v. Glover, 514 F.2d 390, 391 (9th Cir. 1975), show the following.

Undercover agent Jackson of the Drug Enforcement Administration (DEA) negotiated a heroin transaction with a man named Bang, who was a confederate of the defendants. ¹ Bang told Jackson that the heroin was ready to be picked up in Room 207 of an undisclosed motel. Bang agreed to give Jackson the key to the motel room when Jackson paid the purchase money. Bang was later arrested and a key, numbered 207, was found on his person. En route to the DEA office, Bang gave the DEA agents the address of the motel. The DEA agents asked whether they could search the room. Bang responded that he had never been there but that he had no objections to the search. At the DEA headquarters, Bang further informed the agents that the room was not his. The agents apparently replied that since he was in possession of the key, he nevertheless had the authority to consent to a search. Bang then signed a formal consent form permitting the DEA to search the room. The search was performed and incriminating evidence was discovered.

Appellants argue that Bang had no authority to consent to entry by the officers and that the warrantless search of the motel room was therefore illegal. It is well established that a warrantless search will pass constitutional scrutiny if the Government can show that permission to search was voluntarily granted by a person "who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). The common authority justifying the consent need only rest "on mutual use of the property by persons having joint access or control for most purposes . . . ." Id. n.7.

Bang testified that Apichattham had given him no instructions other than to deliver the key to Jackson in exchange for the money, but under all of the circumstances of the case we find that Bang's relationship to the premises and his control over the contraband secreted there were sufficient for him to consent to the search. Special significance may be attributed to Apichattham's having entrusted the motel room key to Bang. United States v. Murphy, 506 F.2d 529 (9th Cir. 1974). See also United States v. Green, 523 F.2d 968, 970-71 (9th Cir. 1975); United States v. Gradowski, 502 F.2d 563 (7th Cir. 1974). Further, counsel for both Gulma and Apichattham conceded at oral argument before this court that the necessary inference from the evidence was that the only apparent purpose for renting the motel room was to deposit the heroin until it was secured by a purchaser. It was admitted that after Apichattham relinquished control of the key, he did not intend to get it back. Nor did he intend ever to return to the motel room. Therefore, Bang was given complete control over the room for the only purpose which it served, to store and dispose of the heroin. Finally, it is noteworthy that Apichattham had had no personal contact with undercover agent Jackson, to whom Bang was to deliver the key. The identity of the buyer was immaterial to Apichattham. Bang had sufficient control over the motel room and the heroin it contained that his confederates assumed the risk that Bang might consent to a search of the room. United States v Matlock, 415 U.S. at 171 & n.7, 94 S.Ct. 988; United States v. Canada, 527 F.2d 1374, 1379 (9th Cir. 1975). And there is no evidence that consent to the search was coerced. We conclude that the search of the motel room that led to the discovery of the heroin was not invalid and that the trial court properly admitted the heroin into evidence. ²

Appellants next argue that evidence seized from the green Datsun that they were driving when arrested was unlawfully seized because the arrest was without probable cause. We reject this contention. The DEA agents were in possession of substantial evidence from surveillance agents and from undercover agent Jackson that appellants were connected with Bang in the sale of narcotics. Bang had indicated to agent Jackson that he was an agent for others and that his principals were Thai. On one occasion, Bang was observed in Apichattham's apartment. Furthermore, Gulma and Apichattham were observed behaving suspiciously in the vicinity of the place where Bang and Jackson conducted their meetings. During Bang and Jackson's last meeting, Gulma walked by and looked into the car in which Jackson and Bang were sitting. Gulma then joined Apichattham in the Datsun. The Datsun was observed by surveillance cars and by helicopter to be driving erratically, making circles, U-turns, and frequent stops in the middle of the street. Bang's statements, coupled with Gulma's and Apichattham's observed connection with Bang and with the drug sale negotiations, were sufficient to give the agents probable cause to believe that Apichattham and Gulma were Bang's principals and were in control of substantial quantities of heroin. The arrest was...