United States v. Joseph Rodney Thomas

432 F.2d 120

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 1971
• Docket: 25328_1
• Status: Published

Opinions

HAMLEY, Circuit Judge:

Joseph Rodney Thomas appeals from his conviction on three counts of violation of 21 U.S.C. § 174 and one count of violation of 26 U.S.C. § 4705(a). The Government concedes that there is no evidence supporting the conviction under section 4705(a). We agree and reverse as to that count.

On the remaining counts, defendant’s only point is that the conviction was based upon evidence seized as the result of an unreasonable search of his person. The search was made without either a warrant for the search of his person, or a warrant for his arrest. The Government defends the search on the ground that it was incident to an arrest made on probable cause to believe defendant had committed a felony. We agree, and affirm as to the three section 174 counts.

There was substantial evidence tending to establish the following facts: On April 23, 1969, Agent Charles Henry of the Federal Bureau of Narcotics and Dangerous Drugs, operating under cover, entered the apartment of a suspect, John McCallon. Henry entered the apartment, located at 1121 West Vernon Avenue, Los Angeles, with Government advance funds, for the purpose of providing McCallon an opportunity to sell heroin to him.

McCallon agreed to sell an ounce of heroin to Henry, accepted money from the agent and left to get the heroin from his source, leaving Henry at the apartment. McCallon proceeded to a private residence at 1319 West Sixty-Eighth Street, Los Angeles, and entered that house. Twenty minutes later Mc-Callon left the house on West Sixty-Eighth Street, returned to his apartment and delivered the heroin to Henry, who then left.

On April 24, 1969, agents of the Bureau obtained a warrant to search the West Sixty-Eighth Street residence. Some time prior to the execution of this search warrant, on April 28, 1969, Bureau agents ascertained through the Post Office Department that the house was occupied by defendant Thomas. However, the search warrant named the occupant as “Brooks,” which was an alias McCallon used in dealing with Henry.

On April 28, 1969, Agent Henry again went to McCallon’s apartment for the same purpose as on his first visit. Again McCallon agreed to make a sale, and Henry gave him currency, the serial numbers of which had been recorded earlier. Once more Henry waited in McCallon’s apartment while the latter went to the house on West Sixty-Eighth Street. Shortly after McCallon entered this house, a man came out of the house, got into a car and drove away. A few minutes later this man, who later turned out to be defendant Thomas, returned and entered the house. McCallon then left the house, returned to his apartment, and made a sale of heroin to Henry.

Agents Samuel D. Ozment and Paul D. Herring, who had the West Sixty-Eighth Street home under surveillance at this time, received a radio message from other Bureau agents that the sale to Henry had been completed. They then began approaching the house for the purpose of executing the search warrant. As they approached, Thomas and a female left the house and walked towards Thomas’ automobile, parked in front.

Ozment and Herring stopped Thomas and advised him that they had a warrant for the search of the house. Ozment then searched Thomas on the street and found 7.410 grams of heroin on his person, and some of the currency bearing recorded serial numbers. Ozment testified that as soon as he found the heroin he arrested Thomas. The entire party then went into the West Sixty-Eighth Street home and a search was conducted. No additional narcotics were found.

On cross examination, Ozment testified that the reason he arrested Thomas was in part that he had received information to the effect that Agent Henry had puixhased narcotics from McCallom at the latter’s apartment, after Mc-Callon had entered and left the house from which Thomas had emerged and reentered. Ozment said the arrest was also based on “other information” and observations on his part.

Under the described circumstances we think that, prior to his search of Thomas, Ozment had reasonable cause to believe that Thomas was a resident of the house on West Sixty-Eighth Street and that he had engaged in supplying heroin for sale to Henry through McCallon. Ozment therefore had probable cause at that time to arrest Thomas.

The fact that Ozment searched Thomas immediately before, rather than immediately after, the formal arrest does not invalidate the search in this case. It is preferable to make the formal announcement of arrest before undertaking a search, thereby precluding any question of whether the fruits of the search were used to justify the arrest. Here, however, the fruits of the search were in no way necessary to establish probable cause for the arrest which immediately followed. The search of Thomas’ person was substantially contemporaneous with the arrest, and searches of this kind, if confined to the immediate vicinity of the arrest are permissible. Shipley v. California, 395 U.S. 818, 819-820, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969); United States v. Skinner, 412 F.2d 98, 103 (8th Cir. 1969).

Reversed as to the section 4705(a) count, affirmed as to the three section 174 counts.