United States v. Welsch

• Decision Date: 09 August 1971
• Docket Number: No. 653-70.,653-70.
• Parties: UNITED STATES of America, Appellant, v. Douglas Cormack WELSCH, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

446 F.2d 220 (1971)

UNITED STATES of America, Appellant, v. Douglas Cormack WELSCH, Appellee.

No. 653-70.

United States Court of Appeals, Tenth Circuit.

August 9, 1971.

Ruth C. Streeter, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., with her on the brief), for appellant.

Appellee waived oral argument and filed no brief.

Before SETH, ALDISERT^* and McWILLIAMS, Circuit Judges.

SETH, Circuit Judge.

The United States has taken this appeal from an order entered by the United States District Court for the District of New Mexico which granted the defendant's motion to suppress certain evidence seized during the course of the defendant's arrest. The motion was made prior to trial and was directed to a large number of pills or tablets which the Government asserts contained LSD or mescaline.

The record on this appeal shows that a special agent for the Bureau of Narcotics and Dangerous Drugs, Amadeo Medina, posing as a prospective purchaser of drugs, had been in communication with the defendant. At the time of the incident here in question the defendant had come to Albuquerque, New Mexico, and was met by Agent Medina at the airport. The defendant was carrying a brown leatherlike suitcase at the time. He and Agent Medina proceeded from the Albuquerque Airport to a motel room which had been engaged in the name of the defendant by a third party.

On the arrival of the defendant and Agent Medina at the motel room the defendant opened the suitcase, and showed its contents, a large number of pills, to the agent. The agent then advised the defendant that he wished to have his personal chemist test the tablets before a purchase was made. This appears to have been in accordance with a previous understanding that this would be done. The agent called his "chemist," who was in fact Special Agent Charles Ray. Agent Ray came to the motel room, was admitted, and the defendant thereupon reached under one of the beds and withdrew the brown leatherlike suitcase, opened it, showing the contents to Ray, and permitted Agent Medina to take sample pills therefrom to give to Agent Ray for testing. When Agent Ray had the samples in hand, which consisted of some sixteen tablets, he advised the defendant and Agent Medina that he would depart to make the chemical tests and would return in some fifteen or twenty minutes.

Agent Ray, upon leaving the motel room, took the sample tablets to a nearby location where he and another agent performed a field test on them for the presence of LSD and mescaline. Their testimony was that the test was positive in that it indicated the possibility that LSD and mescaline were present in the tablets. The test having been completed, Agent Ray, together with some additional special agents, returned immediately to the motel room for the purpose of arresting the defendant. Upon their arrival, some twenty minutes after Agent Ray's departure from it, they knocked on the door and were prepared to force it open but Agent Medina opened it from the inside. The Special Agents who then accompanied Ray thereupon arrested the defendant, and at about the same time Agent Ray reached down and removed the suitcase from underneath the bed. This suitcase was in the same place at which it had been located when he had previously been shown it by Welsch. The agents had no warrant for the arrest of Welsch nor did they have a search warrant. It was estimated by the agents that the suitcase contained approximately 75,000 tablets or pills of LSD and mescaline.

The trial court found there was probable cause for the arrest of the defendant, and we agree. The trial court in response to defendant's motion suppressed the contents of the suitcase but denied the defendant's motion to suppress as evidence the sixteen pills which had been taken for analysis by Agent Ray on his first visit to the motel room. The Government contends that the trial court was in error in suppressing the contents of the suitcase seized as above described.

As indicated above, we agree with the trial court that there was probable cause for the arrest of Welsch without a warrant and the entry into the motel room for this purpose was permissible. The Supreme Court has not directly decided the propriety of such an entry but has assumed it to be permissible under the circumstances here present. Jones v. United States, 357 U. S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

In the case as it reaches us on this appeal, we are not concerned with a general search of the motel room in which the defendant was properly arrested, but with a seizure alone. The same Fourth Amendment protections of course are applicable. At the time the arrest was made, Agent Ray seized the suitcase containing the tablets at the place from which he had seen it removed by the defendant about twenty minutes previously for the purpose of providing him with samples. When seized, the suitcase could not actually be seen from the place of arrest, but the agent upon his return to the motel room for the purpose of arresting Welsch knew its location and what it contained. We hold that it is not significant in what capacity he had obtained this information a few minutes before as he was lawfully on the premises. See Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed. 2d 856.

Under these facts, and considering the time interval, we must regard the suitcase as if it had been in "plain sight" at the time of the defendant's arrest. The reasons for the existence of the "plain sight" exception, which need not be here related, are applicable, are persuasive under these circumstances, and convince us to apply the "plain sight" doctrine.

In considering the time Agent Ray had to act, and in view of the fact that he had told the defendant that the test would take some twenty minutes, the record shows that there was not time to perform the tests within this period and to secure a warrant for the arrest of the defendant or a warrant for the search of the premises. The agents so indicated in their testimony. It is apparent under these conditions that Agent Ray could not have stayed away any extended time from the motel room. We hold that there was not time after testing the pills for the agents to apply for, have issued, and serve warrants for arrest or for search.

The Supreme Court, in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, considered the plain sight doctrine under somewhat comparable circumstances. The opinion of the Court, insofar as it was concurred in by a majority, and as initially published, indicates that in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, the Court attempted to confine the exceptions to the warrant requirements "to their appropriate scope." The opinion of the Court in Section II D states: "The `plain view' exception is intimately linked with the search incident exception * * *," and it also said: "To permit warrantless plain-view seizures without limit would be to undo much of what was decided in Chimel, * * *" The majority opinion in the same section also states:

"To begin with, in Chimel v. California, supra, we held that a search of the person of an arrestee and of the area under his immediate control could be carried out without a warrant. We did not indicate there, and do not suggest

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