United States v. Baca, 410-70

• Citation: 444 F.2d 1292
• Decision Date: 29 June 1971
• Docket Number: 586-70.,No. 410-70,410-70
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny BACA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

444 F.2d 1292 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Danny BACA, Defendant-Appellant.

Nos. 410-70, 586-70.

United States Court of Appeals, Tenth Circuit.

June 29, 1971.

COPYRIGHT MATERIAL OMITTED

Clyde E. Sullivan, Jr., Albuquerque, N. M., for defendant-appellant.

Victor Ortega, U. S. Atty., Albuquerque, N. M. (Mark B. Thompson, III, Asst. U. S. Atty., on the brief), for plaintiff-appellee.

Before HILL, SETH and DOYLE, United States Circuit Judges.

HILL, Circuit Judge.

This is the second time Baca has appealed a conviction for unlawful possession of heroin in violation of 21 U.S.C. § 174. In the first appeal, United States v. Baca, 417 F.2d 103 (10th Cir. 1969), he argued that the heroin should not have been admitted into evidence because it was the product of an illegal search and seizure. In that case, we held that part of the narcotics were in fact the result of an unconstitutional search and seizure. But it was also explicitly stated that two vials containing heroin and some other narcotics paraphernalia were constitutionally seized and usable as evidence. The case was accordingly remanded and a new trial was conducted. In that trial, the United States offered the two vials of heroin and the other paraphernalia, and they were admitted into evidence on the strength of the Circuit opinion. Baca was again convicted for violating 21 U. S.C. § 174 and was sentenced to a term of ten years.

Baca then filed a notice of appeal to this court and filed a motion for release while the appeal was pending, under the provisions of 18 U.S.C. § 3146(a). The trial court entered an order specifying the methods and conditions of release which, inter alia, required a $15,000 appearance bond. Subsequent events, however, caused the trial court to revoke Baca's release, and he was remanded to the custody of the United States Marshal. No. 410-70 is the appeal from the conviction, and No. 586-70 is an appeal from the order revoking appellant's release.

The facts have been fully set out in the prior opinion and will be referred to here only to clarify the disposition of the issues.

In No. 410-70, appellant's first and second arguments allege that the two vials and the accompanying narcotics paraphernalia which were used as evidence at the second trial were the products of an illegal search and seizure. That very argument was disposed of in the first appeal.

We accept the finding of the district court that the two vials and wrapped parphernalia sic were in plain sight and that a crime other than the one called for by the parole violation warrant was openly being committed. As the Court in Go-Bart Importing Co. v. United States, supra 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374, pointed out, things which are visible and accessible and in the offender\'s immediate custody can be seized by the police officers as was done in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231. * * * This justifies * * * the seizure of the two vials and the narcotics paraphernalia * * *. 417 F.2d at 105.

It was obviously this statement which guided the trial court in admitting the evidence. We will not again consider the issue previously decided against appellant.

Next, appellant contends that the trial court erred by admitting the two vials without requiring the United States to show chain of possession from the time the contraband was first seized until it was received into evidence. The applicable law is unequivocal on this point. "If, upon consideration of the nature of the article, the circumstances surrounding the preservation and custody of it and the likelihood of intermeddlers tampering with it, the trial judge deems the article to be in substantially the same condition as when the crime was committed, he may admit it into evidence, and his determination `that the showing as to identification and nature * * * is sufficient to warrant reception of an article in evidence may not be overturned except for a clear abuse of discretion.'" Reed v. United States, 377 F.2d 891, 893 (10th Cir. 1967); O'Quinn v. United States, 411 F.2d 78, 80 (10th Cir. 1969); United States v. Bourassa, 411 F.2d 69, 73 (10th Cir. 1969); Rosemund v. United States, 386 F.2d 412, 413 (10th Cir. 1967).

The record does not show that the trial court abused its discretion in admitting the questioned evidence. Both officers who were primarily responsible for seizing the two vials and other paraphernalia testified that the items were dated and marked with the officers' initials and then placed in a marked envelope for mailing to the United States chemist. The contents were then sent by registered mail to the chemist on July 11, 1968. A United States chemist testified that he received an envelope by registered mail from the Bureau of Narcotics in Albuquerque on July 12, 1968. He examined the envelope to ascertain whether it had been opened and determined that it was still sealed. He then opened the envelope and removed a locked, sealed envelope that was contained in the mailing envelope. The sealed envelope was then stored in a vault until its contents could be analyzed. After analysis, the evidence was again marked, placed in a new locked, sealed envelope and returned to the vault. The chemist thereafter removed the sealed envelope and personally delivered it to the federal district court clerk. The district court clerk then testified that he had received the evidence from the chemist and stored it in a locked exhibit drawer until the date of its introduction into evidence. At the second trial, the officers who made the original search and seizure positively identified the two vials and narcotics paraphernalia as that which was taken from the chair in appellant's bedroom. It was that evidence which we previously held constitutionally seized. This testimony clearly establishes chain of possession and was proper foundation for introduction of the evidence.

Next appellant asserts that the parole violation warrant was used as a pretext for conducting a general and exploratory search of the apartment and therefore the evidence seized was the product of an unreasonable search. In Abel v. United States, 362 U.S. 217, 226, 80 S.Ct. 683, 4 L.Ed.2d 668, 690 (1960), the Supreme Court condemned the "deliberate use by the Government of an...