United States v. Jesse Vance Mehciz
437 F.2d 145
9th Cir.
1971
Check Treatment

*2 took the hand- officers suitcase and (argued), U. S. Asst. Morton Sitver cuffed Mehciz so no dan- Burke, Atty., Atty., U. Richard K. S. ger get suitcase, that he would Phoenix, Ariz., plaintiff-appellee. for weapon destroy any a obtain evidence WRIGHT, and Before ELY Circuit found be inside. Judges, SMITH, Judge.* and District opened Fluhr the air- the suitcase port and tablets inside. WRIGHT, A. Circuit EUGENE Judge: AND II. SEARCH SEIZURE. jury Mehciz was convicted after a n 12,000 possession

trial tablets officers who arrested in violation of 21 LSD for sale U.S.C. §§ neither Mehciz had arrest warrant (3) (A), 333(b) (q) 360a Despite a the lack search warrant. (1). (c) We affirm. arrest, appellant’s of a warrant validity of does not now contest I. THE FACTUAL BACKGROUND. arrest. Fluhr, September 29, 1969, On Arthur Agent At the trial Fluhr testified at Agent Special of the Bureau of Narcot- length dealings previous as to his some Dangerous Drugs, ics and received amply with the estab- informant formation from a reliable reliability.1 lished his Under these cir- large being shipment that a of LSD was cumstances, no doubt carried from southern California proba- warrantless arrest was based on day. Phoenix the next Fluhr’s inform- cause,2 argu- ble makes supplied (Vance) ant the first name contrary. ment to the person carrying who would Conceding the lawful nature his ar- drugs airline, flight as well num- rest, appellant’s contention is time, ber and arrival him described beyond search went tall, as a male about six white feet wear- scope of a search lawful ar- incident missing hair and dark a front Primary placed upon rest. reliance is tooth. Chimel v. U.S. Fluhr and other met officers flight They on its arrival. stood gate deplaning near the watched In the arrest was passengers they spotted appel- concededly lawful3 and indi- the Court description they lant Mehciz right who fit the clearly cated there was given. had been The officers allowed conduct some kind of search incident pass through gate Mehciz to however, question, the arrest. past called, “Hey, them when Fluhr the search an entire three- Vance!” at which Mehciz turned around bedroom house when de- Chimel was and looked at Fluhr. beyond per- tained in one room was * Smith, (1969) Hon. Russell E. United States Dis- Ed.2d 637 where there was Judge Montana, trict for the District of bare as to the statement informant’s sitting by designation. liability. testimony reliability Fluhr’s as to See, g., e. specifically prior dealings referred to U.S. L.Ed.2d 327 had resulted in sei quantities zures of substantial of narcotics. Thus, Aguilar pursuant this is not a case like The arrest Chimel was made Texas, L. to a but that fact is of no moment (1964) Spinelli light appellant’s Ed.2d 723 here concession legality 393 21 L. of his warrantless arrest. seizing hand on the one ference between war- scope of without searches missible holding presenting the car before and probable arrest. to lawful incident rant magistrate and cause issue to concluded carrying an imme- hand out on the other beyond permissible there was the search scope. a warrant. Given diate search without scope, defining permissible search, either course *3 justifi- ample “(t)here is said Court Amend- Fourth under the reasonable per- the arrestee’s for a search cation 5 un- that the factors ment.” believe We immediate his ‘within the area son and e., Chambers, derlying i. the decision construing phrase mean that control’— the intrusion, mobility of undue and lack which he within area from equal with at least force weapon or gain destruc- possession of a suitcase involved here. evidence.” tible is that the There little doubt but rule apparently applicable argument is not is Chimel here per decision in it automobile searches after was searched the suitcase that has ex- possession and Chambers. Court his from had been taken pressly purposes by held “for the been he had handcuffed after agents. Therefore, Amendment con- Fourth is a the suitcase stitutional between houses difference immediate control” not “within his was and phrase cars.” While we are not necessari- defined is Chimel. as that ly of the view is at this that Chimel limited conduct the search Rather than searches, argues house think reason- time, appellant we agents con able to is corre- their conclude that should have maintained sponding and secured “constitutional difference” be- the suitcase then trol over authorizing open tween a house a suitcase. them to suggest it. does search Finally, think our we conclusion here procured have could not the officers by Draper is further fortified under a warrant these facts would States, 307, 329, 358 U.S. 3 L. argument such an have merit. Draper, Ed.2d 327 feder agents by logical unimpressed al narcotics are not learned from a relia We appellant ble informant riving from that a ar conclusion which draws man would be rule, Chicago interpretation by in Denver his train from Chimel delivering shipment contrary are convinced that a but we required. Maro heroin. He was sult is ney, In Chambers described in detail 1975, Draper train, not named. 26 L. When left the 399 U.S. agents Court was faced saw that he conformed Ed.2d description given. auto with warrantless search of the had been He stopped, which the defendants had been arrested and mobile searched. driving lawfully The heroin was when hand arrested. his and a (also suggestion proposed made here also needle introduced into evidence at trial) there, his to the Court the automobile was found the course impounded on-the-spot of an should have without a search small hand bag carrying search until a which he was search warrant could be and which was taken from obtained. him when he arrest ed. expressly re- Chambers saying “(f)or agents jected suggestion had noted The Court that the by everything purposes, no dif- in- we see told them the constitutional verified 1982, citing Id. Carroll 90 S.Ct. 2034, 2040, L.Ed.2d 685 45 S.Ct. (1969) . 69 L.Ed. Maroney, 5. Chambers v. 1975, 1981, 26 L.Ed.2d (1970) . lenge [Draper] ruling “except had trial court’s formant the es- reliability

accomplished ad- mission and had the tablished of the informant person equately supported of heroin on his three ounces arrest Mehciz bag.” in his “the arrest was cause. lawful, subsequent therefore Assigning error to the trial court’s having seizure, in been made search supply infor- fusal the name of the arrest, were like cident lawful stage prosecution, mant at wise valid.” relies on Costello v. United 1962) factually in- We think proposition prose- that “if the broad distinguishable in- from the situation solely upon tip cution relies of an volved here. Our result thus dictated justification formant as the sole ar- by Draper, logic rest, it must disclose the informant’s Chambers, nothing find we Chi- *4 identity.” any post-Draper mel or decisions Supreme any reading justi that leave Court of Our Costello fails to continuing vitality of fy doubt rule. crucial this broad distinc Draper precedent.9 In- constitutional is tion between this case Costello deed, recently this circuit has noted that in Costello that the record failed to “Draper good pre-arrest showing is still law for informant veal that the parallel facts which Indeed, that case.” was reliable. Costello specifically noted court there was III. THE IDENTITY THE IN- OF showing the informant was oth FORMANT. anonymous than “an uncorroborated er caller.” *Here we have an informant requests made two for the unquestioned reliability agree and we of identity of the informant at first with the statement Costello that arraignment during and the second trial. “reliability con of the informant is the complains generally He now of the trial trolling factor.” court’s refusal to disclose the name of the informant until after Mehciz himself pertinent to the resolution More had taken the stand the trial. McCray Illinois, question is this 300, 1056, request When the 87 S.Ct. 18 L.Ed.2d 62 was made ar- U.S. at raignment, (1967). counsel somewhat similar fac- for Mehciz indicated Under specifically that he wanted the identification tual circumstances Court be- supplied by cause it was the information ruled trial court state need require police informant which formed officers to reveal the sole ba- probable sis cause. Fluhr tes- name of a reliable informant “the where extensively hearing preliminary probable tified as to issue is the one of cause, guilt his former relations the informant is not at innocence conclusively refusing and so established his relia- stake.” reasons for bility appellant identity does not now chal- disclose the of an informant are Draper 307, Jiminez-Badilla, 7. 10. F. United States v. 313, (1959) (emphasis (9th Cir., 9, 1970) 2d November cit added). Mitchell, 425 F.2d United States v. 1970) (Blackmun, J.). (8th Cir., Id. at 79 S.Ct. at 333. Costello was, course, 9. The aware Draper when it Chimel decided since Draper opinion. is cited 12. Id. Chimel v. 760 n. McCray Illinois, 300, 311, 23 L.Ed.2d 685 nothing there, We find or elsewhere to indicate that was af- any way. fected in having finally secured the name known,14 After existence it had so the informant which dan- of in narcotics traffic tremendous gerous point sought, defense rested drugs require calling heavily Brazil to the stand. The rely inform- without on state officers however, government, Brazil then called ants. emphatically denied Brazil in rebuttal. therefore reiterate We would transport had hired Mehciz to McCray, Draper and said in what was efforts to defense reliability of an informant Costello: testimony fu- him from were shake establishing controlling factor tile. probable these for arrest under cause jury apparently did not believe need not and a trial court circumstances appellant’s version agents require to disclose following guilty him an instruction identity where of a ground informant reliable garding entrapment which now seeking infor the sole eminently concedes to have been correct. existence mation is establish the argues Appellant now the trial for arrest.15 require refusal to identification court’s renewed his re- counsel had tak- after he identity quest for the forcing had the effect of en stand day of At this time first trial. stand in violation him take the for the first time that he indicated rights under the Fifth Amendment. *5 interpose of en- to the defense intended difficulty argument with this trapment the name he needed appellant misunderstands the basic to establish it. of the entrapment the defense. nature of was trial court noted the defendant It is elemental that “absent sur- of the circumstances well aware rounding crime, can of the commission transportation his of LSD the entrapment,” It has been and could have raised to Phoenix least well as at rule in this circuit17 as sought name this defense before a defendant two circuits18 that other was of The motion the informant. en to avail himself wishes who again denied “until such time as there trapment admit the sub defense must entrapment develops evidence of crime. stantive elements here.” Appellant testify not had to be Mehciz then took the stand and admit- transported unable to secure the name cause he was ted that had he informant, Angeles he but rather from testi- Los to Phoenix. His mony entrapment him, as defense. to offer one Brazil had wished hired was initiative, as admis transport such time there was an Brazil’s to the Until agreed by the had com The trial then sion defendant that he crime, LSD. court trial court was entrapment been mitted had established refusing require quite ordered Fluhr correct viable defense and government identify a reliable take stand state the name allegation on the informant. Fluhr was recalled valued mere thought es his he could stand and identified Brazil as counsel that entrapment defense. tablish aas formant. States, (Mc- Wigmore, 358 F.2d 107 17. v. 14. Ortiz United § See 8 Evidence States, (9th 1966) ; Ortega 1961). Xaughton Cir. rev. (9th 1965). F.2d 874 Cir. States, v. See also Roviaro United See, g., v. e. Burris United L.Ed.2d S.Ct. (7th 1970) ; States Cir. United F.2d 399 1970). Pickle, (5th 424 F.2d 528 Cir. Ramirez v. F.2d (9th Cir. essentially disregards the more recent FOR CHANGE OF IV. MOTION teaching 395 U. VENUE. S. sought change quite we were clear- 21(a) of the Fed.R. venue under Rule ly told that a warrantless search im- ground publicity- Crim.Proc. except be reason- surrounding had his arrest Phoenix safety ably necessary protect “so extensive as to establish so officers, arresting preserve or to great against prejudice defendant possible from evidence destruction. impartial a fair and he cannot obtain Here, the accused was handcuffed and properly denied motion trial.” This was stepped arrested airplane. from the as soon by the court. district then, It is undeniable that he States, 341 F.2d 381 Meador v. United thereafter, had no access to his suit- leading 1965), authority It is undeniable that the immedi- case. circuit, appel- completely this forecloses his ate search that followed arrest argument here. are While there lant’s by possibility neither motivated which make Mehciz’ case factors handbag its contents constituted a even than Meador it is sufficient weaker officers, possi- threat to the pro- to spective jurors in Meador four of 32 note that bility contained therein that evidence they had indicated that danger of destruction. case heard read of the whereas none analogize attempts majority jurors here said that had Maroney, Chambers heard, anything read seen or 1975, L.Ed.2d 419 case. permitted a search of an warrantless impound- an alternative to automobile as V. THE TRIAL PROCEEDINGS. ment, when automobile had been complaint final incident to a lawful arrest seized grows out of some confusion the search. judge trial which resulted in the and However, *6 influenced the factors jury returning to the courtroom while present not in that decision are Mehciz and counsel were due absent case. misunderstanding to a time to Mr. wrote Justice White Cham- convene. Without detailed consideration bers, argument, of this it suffices to note judge nothing the trial said which we furnish “The circumstances arguably prej to have been even believe particular cause to search jury fact cautioned udicial particular for articles auto are most mere fact counsel “the for defend unforeseeable; moreover, often present ant and the defendant are not opportunity fleeting to search since way prejudice this time should in no * * * readily car is moveable. your them whatsoever minds inor “Arguably, prefer- because of this ease.” magistrate’s judgment, only ence for a appears judge It to us that the trial car immobilization should should commended for the be manner permitted be until a search warrant is which he conducted trial and his obtained; arguably, only the ‘lesser’ attitude toward out-of-state courteous mag- intrusion is until the counsel. ‘greater.’ istrate authorizes the But Affirmed. ‘greater’ which is and which the ‘lesser’ intrusion is itself a debatable ELY, Judge (dissenting): Circuit may question depend and the answer respectfully it, I dissent. As I see variety on a of circumstances.” falling majority, upon back an eleven- year-old Court, 50-52, decision 399 U.S. at

I5I become, ap- speculate may that it but to question to Here, as can be no “great- ply it as it is. would constitute that which information which er” intrusion. I would reverse. lay police for Mehciz in wait to led well, justify sufficient, their to was application Meh- a warrant search for baggage, information and the

ciz’ ample a war- for such

received time Moreover, issued. rant suitcases, have have neither wheels

which pro- power, not independent motive do KASMEIER, Plaintiff, Appellee, E. John “fleeting” opportunity for vide to automobiles. exist as a search CHICAGO, Additionally, AND PACIF- ROCK ISLAND automo- one’s need an COMPANY, a cor- IC RAILROAD society, surely bile in our mobile Defendant, Appellant. poration, is a factor in determination No. 247-70. intrusion is a “lesser” immediate search impoundment can than Appeals, States Court of issued, quite the does not be Tenth Circuit. Finally, force same quire to suitcases. Jan. baggage impound- private Rehearing Denied March its ed a warrant obtained for search likely impose an onerous bur- investigating authorities, upon den respect a similar rule with If Amendment automobiles. Fourth analogy,

questions are to be decided appropriate

then I should think more houses, rather than

to liken suitcases

to vehicles.1 is, unnecessary hope, I for me

It sympathy Mehciz.

add that I hold no Admittedly, approach my conserva- conscientiously

tive, ignore I cannot judges of inferior tradition *7 compelled, like courts are controlling not, apply to do so or

principles Our Court.

function is not to might the law as we be, like it to or we plane might course, assumption automobiles, that Mehciz’ are not sub able Even hijacked elsewhere, po ject arresting or the whim of Cuba to search at he, Cliimel, assured that and his suit “assum lice could be officer. was noted probable cause, sufficient their information was auto case —and the existence of a suit alert them to the fact that be searched mobiles and vehicles large practica package would be ‘where it case or other without warrants quantity enough LSD the ve to hold the to secure a warrant ble carrying— supposed quickly to be out lo Mehciz was hicle can be moved place, cality jurisdiction exact time be found at an the warrant would opportunity meantime, that, sought.’ in the v. United must be Carroll locality ju “quickly move out 69 L.Ed. possibly Corn arise. risdiction” at 764 n. 543.” Cf. gold added) impractical (emphasis This 2040. ity absent here. Absent some reason-