U.S. v. Smith

• Decision Date: 01 May 1979
• Docket Number: No. 78-2623,78-2623
• Citation: 595 F.2d 1176
• Parties: UNITED STATES of America, Appellee, v. Sandra Elaine SMITH, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1176

595 F.2d 1176

UNITED STATES of America, Appellee, v. Sandra Elaine SMITH, Appellant.

No. 78-2623.

United States Court of Appeals, Ninth Circuit.

May 1, 1979.

Alan R. Freedman, Asst. U. S. Atty., Las Vegas, Nev., for appellee.

Robert Archie, Las Vegas, Nev., for appellant.

Appeal from the United States District Court for the District of Nevada.

Before TRASK and ANDERSON, Circuit Judges, and WYATT, ^* District judge.

WYATT, District Judge:

Sandra Smith appeals from a judgment of conviction for possession of a controlled substance (heroin) with intent to distribute (21 U.S.C. § 841(a) (1)). The judgment was entered on a jury verdict in the United States District Court for the District of Nevada. The sentence was a fine of $10,000; imposition of sentence as to imprisonment only was suspended and appellant was placed on probation for three years. We affirm the judgment of conviction.

1.

Acting on a tip from a confidential informer that appellant was in possession of heroin, Las Vegas police, at about three o'clock in the morning of March 17, 1977, at D and Harrison Streets in Las Vegas, stopped and searched without a warrant an automobile. The automobile was being driven by Lawrence Booker. Appellant Smith was in the front passenger seat.

The officers first stopped the car and took the two occupants to its rear. They then began a search. On the front seat they found a loaded pistol. Under the passenger side of the front seat they found tissue paper packets which contained what appeared to be narcotic drugs. They then told the two occupants that they were under arrest. The search was continued and after opening the glove compartment (which had been locked) they found hidden near the top of the compartment a brown paper sack with more small tissue packets. It was later ascertained that the several found packages contained, among other things, 363 grams of heroin. It was also later determined that the pistol was registered to appellant Smith; the automobile had been rented for Smith a few weeks earlier by her ex-husband.

2.

In the latter part of March, 1977, Smith and Booker were indicted by a grand jury of the State of Nevada for drug and gun offenses. There was a pre-trial motion by one or both defendants in the state court to suppress as evidence the gun and the drugs. The State attempted to show probable cause for the search solely by the testimony before the Nevada grand jury, specifically that of the officer who ordered the car stopped. Naturally, in this testimony before the grand jury, the officer had not addressed a search and seizure problem but had concerned himself solely with whether an offense had been committed. The state court judge, by order filed August 11, 1977, granted the motion to suppress.

Thereafter, the prosecution of the state court indictment was dropped, apparently by an oral motion by the prosecution at a calendar call to dismiss the state court indictment (Record ("R"), vol. VI, p. 284). We are told in appellant's brief (p. 3) that this was on August 19, 1977.

3.

On October 27, 1977, an indictment against Smith (but not Booker) was returned and filed by a federal grand jury in the District of Nevada. There were two counts, but one of these counts was later dismissed at trial on motion of the government (R VI, p. 206) and for present purposes may be disregarded.

The count on which the present judgment of conviction was entered charged possession of heroin and cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). All reference to cocaine was later deleted from the indictment on motion of the government (R VI, p. 206) and may be disregarded here. (The government gave as its reason that the amount of cocaine was too small to permit an inference of an intent to distribute (R VI, p. 216)).

Appellant moved to suppress as evidence the drugs and the statements made by her when arrested. It was claimed that the arrest was unlawful and also the search, the statements being thereby made inadmissible. The District Court had a hearing. The government called the officer who ordered the car stopped. His testimony at the hearing was much more detailed in the area of probable cause than his testimony before the Nevada grand jury. Appellant offered no evidence at the hearing. The District Judge denied the motion (R V, pp. 41-43), without prejudice to its renewal at trial.

The trial commenced on June 29, 1978, and continued for three and a half days. Booker testified for the government that he had met appellant early on March 17 and got from her the keys of the car he was driving when they were stopped. Appellant offered no evidence at trial. The jury returned a guilty verdict, sentence was imposed, and this appeal followed.

4.

Appellant contends that search of the car without a warrant was a violation of the Fourth Amendment prohibition against "unreasonable searches and seizures." Admission of the seized drugs in evidence is therefore claimed to be reversible error.

Wisely, there is no claim for appellant that the state court ruling that the evidence be suppressed has significance for the case at bar. The District Judge "was correct in making an independent inquiry on the constitutional validity of the state search, irrespective of whether there had been such an inquiry by the state court, or how such an inquiry had turned out." United States v. Garrett, 565 F.2d 1065, 1068 (9th Cir. 1977), Cert. denied, Morgan v. U. S., 435 U.S. 974, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). It may be noted that the evidence in the state court was scanty whereas in the federal court it was overwhelming.

The rule is that "all that is required to stop and search an automobile on the highway is probable cause to believe that it contains any type of contraband." United States v. Abascal, 564 F.2d 821, 828 (9th Cir. 1977), Cert. denied, Frakes v. U. S., 435 U.S. 953, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978).

The issue here, then, is whether there was probable cause to believe that drugs were in the automobile. The showing for the government was so strong as to make the argument for appellant almost, if not entirely, frivolous.

The Las Vegas officers were relying on an informer with whom the Sergeant had dealt in the past on three occasions; each time his information was true, each time heroin had been seized, and on one occasion a homicide had been revealed.

This informer, on March 13, 1977, advised the Sergeant that appellant would be returning in a few days from Los Angeles to a hotel in Las Vegas and bringing with her some twenty-five to thirty thousand dollars worth of heroin, and that she was bringing it in her 1977 rose-colored Lincoln Continental. The Sergeant secured a search warrant for the Lincoln.

The informer advised the Sergeant at about 10 o'clock in the evening of March 16 that Smith was back in Las Vegas but had changed cars and was now driving a blue Ford. Thereafter, the informer telephoned several times, advising the Sergeant that Smith had heroin at several locations, that she was going to pick him (the informer) up, and that they were going to one of the locations and would cut the heroin there. Finally, at about 2:45 a.m. on March 17, the informer said that Smith was leaving her residence in the blue Ford and that she had heroin with her in the car.

Meanwhile, since 10 o'clock in the evening of March 16, several Las Vegas police officers had kept the blue Ford under observation. When the 2:45 a.m. message was received from the informer, the Sergeant told the officers on surveillance to stop the blue Ford and to do whatever was necessary. The stopping, search, and arrest followed.

There was abundant probable cause and a search warrant had already been secured for the Lincoln; the switch to the blue Ford made this warrant useless, and there was no time to secure a warrant for the blue Ford.

5.

Counsel for appellant assigns as error that the trial court did not require the government to supply the name of the informer.

It appears that during the suppression hearing (R V) in the court below, there was reference to a motion for Smith (made as part of an omnibus motion) to require the government to disclose the name of any informer on whom the government relied. During this discussion the government stated (R V, p. 12) that it intended to call the informer as a witness but was having trouble in finding "him". The government agreed that if it located the informer, his identity would be revealed to defense counsel. The government did not locate him, his identity was not revealed, and he did not testify.

Counsel for Smith asserts in his Brief (p. 22) that he relied on a statement by the government that the informer would be identified ten days before trial. This assertion is somewhat disingenuous and cannot be accepted. The transcript containing the government's statement (R V, pp. 11, 12), fairly read, is clear that the government undertook to identify the informer only if the government could locate him so that he could testify.

The record shows, moreover, that from the trial testimony of Booker taken with that of Sergeant Park at the earlier suppression hearing as well as at trial, the informer had to be Rocky West who was with Booker and appellant Smith just before they drove off in the blue Ford and were stopped and arrested. Defense counsel thus knew at trial the identity of the informer, as seems to be conceded (Brief, p. 23).

It is settled law in this Circuit that the burden of proof is on the defendant to show a need for disclosure of an informer's identity. United States v. Marshall, 526 F.2d 1349, 1359 (9th Cir. 1975) Cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976). It is not seriously claimed here that the defendant met this burden; instead, the argument is entirely speculative. It is said (Brief, p. 22) to have been "very possible", had his identity been revealed, that the defense could have found the informer and "had the...