United States v. Jesse Vance Mehciz

437 F.2d 145
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 8, 1971
Docket25868
StatusPublished
Cited by88 cases

This text of 437 F.2d 145 (United States v. Jesse Vance Mehciz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jesse Vance Mehciz, 437 F.2d 145 (9th Cir. 1971).

Opinions

EUGENE A. WRIGHT, Circuit Judge:

Mehciz was convicted after a jury trial for possession of 12,000 ■ tablets of LSD for sale in violation of 21 U.S.C. §§ 331 (q) (3) (A), 333(b) (1), and 360a (c) (1). We affirm.

I. THE FACTUAL BACKGROUND.

On September 29, 1969, Arthur Fluhr, Special Agent of the Bureau of Narcotics and Dangerous Drugs, received information from a reliable informant that a large shipment of LSD was being carried from southern California to Phoenix the next day. Fluhr’s informant supplied the first name (Vance) of the person who would be carrying the drugs as well as the airline, flight number and arrival time, and described him as a white male about six feet tall, wearing long dark hair and missing a front tooth.

Fluhr and other federal officers met the flight on its arrival. They stood near the gate and watched the deplaning passengers until they spotted the appellant Mehciz who fit the description they had been given. The officers allowed Mehciz to pass through the gate and past them when Fluhr called, “Hey, Vance!” at which Mehciz turned around and looked at Fluhr.

Mehciz was immediately placed under arrest. When arrested, he was carrying a small gray overnight suitcase. The officers took the suitcase and handcuffed Mehciz so that there was no danger that he would get to the suitcase, obtain a weapon or destroy any evidence that might be found inside.

Fluhr opened the suitcase at the airport and found the LSD tablets inside.

II. SEARCH AND SEIZURE.

The federal officers who arrested Mehciz had neither an arrest warrant nor a search warrant. Despite the lack of a warrant for appellant’s arrest, he does not now contest the validity of that arrest.

At the trial Agent Fluhr testified at some length as to his previous dealings with the informant and amply established his reliability.1 Under these circumstances, there is no doubt that the warrantless arrest was based on probable cause,2 and appellant makes no argument to the contrary.

Conceding the lawful nature of his arrest, appellant’s contention is that the search went beyond the permissible scope of a search incident to a lawful arrest. Primary reliance is placed upon Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

In Chimel, as here, the arrest was concededly lawful3 and the Court indicated that there was clearly a right to conduct some kind of search incident to the arrest. The question, however, was whether the search of an entire three-bedroom house when Chimel was detained in one room was beyond the per[147]*147missible scope of searches without warrant but incident to lawful arrest.

The Court in Chimel concluded that the search there was beyond permissible scope. In defining permissible scope, the Court said “(t)here is ample justification for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 4

Appellant’s argument here is that the suitcase was searched after it had been taken from his possession and after he had been handcuffed by the federal agents. Therefore, the suitcase was not “within his immediate control” as that phrase is defined in Chimel. Rather than conduct the search at this time, appellant argues that the federal agents should have maintained their control over the suitcase and then secured a warrant authorizing them to open and search it. Appellant does not suggest that the officers could not have procured a warrant under these facts nor would such an argument have merit.

We are not unimpressed by the logical conclusion which appellant draws from his interpretation of the Chimel rule, but we are convinced that a contrary result is required. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court was faced with a warrantless search of the automobile which the defendants had been driving when lawfully arrested. The suggestion made here was also proposed to the Court there, that the automobile should have been impounded without a search until a search warrant could be obtained.

The Court in Chambers expressly rejected the suggestion saying that “(f)or constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 5 We believe that the factors underlying the decision in Chambers, i. e., mobility and the lack of undue intrusion, apply with at least equal force to the suitcase involved here.

There is little doubt but that the rule of Chimel is apparently not applicable to automobile searches per the decision in Chambers. The Supreme Court has expressly held that “for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.” 6 While we are not necessarily of the view that Chimel is limited to house searches, we think it only reasonable to conclude that there is a corresponding “constitutional difference” between a house and a suitcase.

Finally, we think our conclusion here is further fortified by Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In Draper, the federal narcotics agents learned from a reliable informant that a man would be arriving in Denver by train from Chicago and would be delivering a shipment of heroin. He was described in detail but not named. When Draper left the train, the agents saw that he conformed to the description they had been given. He was stopped, arrested and searched. The heroin was found in his hand and a needle (also introduced into evidence at his trial) was found during the course of an on-the-spot search of a small handbag which he was carrying and which was taken from him when he was arrested.

The Court noted that the agents had verified everything told them by the in[148]*148formant “except whether [Draper] had accomplished his mission and had the three ounces of heroin on his person or in his bag.” 7 As here, “the arrest was therefore lawful, and the subsequent search and seizure, having been made incident to that lawful arrest, were likewise valid.” 8

We think that Draper is factually indistinguishable from the situation involved here. Our result is thus dictated by Draper, as well as by the logic of Chambers, and we find nothing in Chi-mel or any other post-Draper decisions of the Supreme Court that leave any doubt as to the continuing vitality of Draper as constitutional precedent.9 Indeed, this circuit has recently noted that “Draper

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437 F.2d 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jesse-vance-mehciz-ca9-1971.