This appeal from a conviction for narcotics offenses (26 U.S.C. § 4704(a) and 21 U.S.C. § 174) by the District Court, sitting without a jury, turns upon the validity of a search of appellant which revealed his possession of sixty heroin capsules. That search took place while appellant was under lawful arrest for driving a car without a permit and without lights, and while he was under overnight detention after booking. As an independent ground of decision, the court ruled that the police under these circumstances were privileged to search the person of appellant for dangerous contraband articles even though an earlier pat-down for weapons at the time of booking had elicited nothing.
See
Charles v. United States,
Appellant had two prior felony convictions in the form of narcotics offenses, and received the mandatory minimum sentence of ten years. The sentencing transcript shows, however, that both defense counsel and court regarded appellant as ineligible, by reason of the two prior convictions, for consideration for disposition under Title II of the Narcotic Addict Rehabilitation Act. 18 U.S.C. §§ 4251-55. Although affirming the conviction, we vacate the sentence and remand to the District Court for re-sentencing in the light of our recent decision in Watson v. United States, No. 21,186, decided July 15, 1970.
It is so ordered.
Notes
. It is argued that this second search was the fruit of an illegal search of the automobile which appellant was driving when arrested. The vehicle had been taken into the possession of the police, and the findings were that it was in the process of being made secure under police regulations, with no purpose on the part of the officer to search for criminal evidence, when there was encountered in open view certain non-narcotic drugs which made the officer think he had better take a closer look at appellant. The court’s findings and conclusions .on this score are peculiarly within the scope of Harris v. United States,