Nicholas Christophe, Victor Panica, and Albert Pierro appeal from judgments of conviction entered against them on June 20, 1972, in the Southern District of New York. They were prosecuted under a two count indictment alleging (1) possession, with the intent to distribute, of a narcotic drug, in violation of 21 U.S.C. §§ 812, 841(a)(1) *867 аnd 841(b)(1)(A), and (2) conspiracy to violate these sections. Panica was found guilty after a four day jury trial, commencing April 26, 1972, at which Judge Gagliardi presided. 1 On May 25, 1972 Christophe and Pierro, whose trial had been severed from Paniea’s, were convicted following a non-jury" trial before Judge Gagliardi. Paniсa and Pier-ro were sentenced to 20 years imprisonment on each count, the sentences to run concurrently, and to six years of special parole commencing immediately thereafter. Christophe received concurrent terms of imprisonment of seven and onе half years on each count and a three year term of special probation. We affirm the convictions.
I. The Government’s Case 2
In late December, 1971, agents of the Federal Bureau of Narcotics and Dangerous Drugs received information from a “close friend” of the Pierro family that defendаnt Albert Pierro, a convicted narcotics offender, and Joe “Patsy” Malizia, a fugitive under indictment for a federal narcotics violation, were partners in the narcotics trade and that by watching Albert Pierro they could locate “Patsy” Malizia. Soon after, the Pierro house in Palisades Park, New Jersey, was placed under surveillance by the Bureau. At about 10:15 P.M. on the night of January 26, 1972, Agents Harrington and Grant, from a vantage point about 50 yards south of the Pierro residence, observed Frank DeSimone and Albert Pierro leave the house. DeSi-mone got into his car and drove away, while Pierro returned to the house. Approximately 15 minutes later, a 1970 brown Cadillac Eldorado drove up the street and stopped in the middle of the road opposite the Pierro house. Someone drew back the curtain from a second story window and waved, and then the car parked. Pierro came out, and he and the driver carried inside a number of bundles from the car’s trunk. The driver matched the fugitive’s general description, and the agents thought at the time that he might be Malizia. However, it later developed that the driver was the defendant Christophe.
At about 11:00 P.M., Pierro lеft the house again, this time carrying a large blue valise. He looked up and down the street and then, accompanied by Chris-tophe, placed the blue valise in the trunk of the Cadillac. Pierro returned to the house, and Christophe drove off.
The agents, still thinking Christophe was Malizia, followed thе Cadillac to the parking lot of the Plaza Diner in Fort Lee, New Jersey. Frank DeSimone and defendant Victor Panica were in the parking lot, and they immediately went over to Christophe. The agents recognized Panica as a previously convicted narcotics violator. After а few minutes of conversation, Christophe got back into the Cadillac and Panica joined him on the passenger side. DeSimone went to his car and both vehicles left the diner.
The agents chose to continue their surveillance of the Cadillac. They followed the vehicle acrоss the George Washington Bridge into Manhattan, down the Harlem River Drive and onto the F.D.R. Drive. As the cars neared the 116th Street exit of the F.D.R. Drive, the agents attempted to stop the Cadillac to determine whether the driver was in fact the fugitive Malizia and to investigate the activities they had observed earlier. They put a flashing red light on the dashboard of their unmarked car, flashed their headlights, and sounded the horn — all to no avail. The Cadillac kept right on going, exiting *868 F.D.R. Drive at 116th Street, then racing north along First Avenue at speeds up to 70 miles per hour and running several red lights.
With the agents close behind, Chris-tophe drove across the Willis Avenue Bridge into the Bronx, then doubled back along Bruckner Boulevard toward the Willis Avenue Bridge again. Under the bridge the car came to a sudden stop. Christophe and Panica jumped out, leaving the doors open and the engine running. Agent Harrington, yelling “Federal Agеnts, Stop,” pursued Christophe up the street and around a corner, where Christophe was finally apprehended by a New York City policeman — one of a number who had joined in the chase. Harrington brought Christophe back to the abandoned Cadillac, where Agent Grant searched him аnd took from him the key to the Cadillac’s trunk. Agent Harrington, taking another New York City patrolman with him, went into the bar nearby into which he had seen Panica flee. Harrington went up to Panica and asked him to step outside. Panica protested “I’ve been here an hour and a half,” but eventually agrеed to go with Harrington. By the time they had returned to the abandoned Cadillac, its trunk had already been opened revealing a large blue valise containing 39.8 pounds of heroin and a small white bag containing $150,000 in cash. Both Christophe and Panica were then formally placed under arrest.
At аpproximately 2:00 A.M. on the morning of January 27 a group of federal agents went to Palisades Park, New Jersey and arrested Albert Pierro. The agents seated Mr. and Mrs. Pierro in the living room of their house and then conducted a cursory examination of the premises to make sure that no other adults were present. By 5:00 A.M. a search warrant had been obtained and the agents began a thorough search. In the garage they found approximately 39 pounds of heroin hidden in a cardboard Taittanger Champagne box.
II. The Search of the Cadillac
All three defendants contend that Judge Gagliardi erroneously denied their motion to suppress the heroin discovered in the warrantless search of the Cadillac automobile in which Christophe and Panica were riding. Because of the ease with which an automobile can be moved from one place to another, law enforcemеnt officials have long been permitted to search, without a warrant, an automobile stopped or abandoned on the highway when they have probable cause to believe that it contains contraband. See Carroll v. United States,
Since Christophe’s sole ground of appeal is the allеged illegality of the search of the Cadillac, we affirm his conviction.
Our holding that there was probable cause for the search also disposes of Pierro's claim that the warrant to search his home was illegal because it was based in part on information secured during the search of the Cadillac. In upholding the search, we also uphold the warrant.
III. The Search of Pierro’s House
Pierro makes an additional claim that his house was illegally searched at 2:00 A.M., a full three hours before a warrant was obtained. In support of his motion to suppress the heroin discovered in his garage, Pierro called 14 Special Agents of the Federal Bureau of Narcotics and Dangerous Drugs. Nevertheless, the evidence developed at the suppression hearing made it abundantly clear that when the agents first walked through the Pierro house at 2:00 A.M., they were simply securing the premises aftеr arresting Pierro. They were entitled to conduct a cursory examination of the premises to see if anyone else was present who might threaten their safety or destroy evidence. Moreover, the heroin was not discovered until a full scale search had been conductеd after the warrant was obtained several hours later.
IV. Evidence of Panica’s Membership in the Conspiracy and Possession of Drugs
Defendant Panica asserts that the trial court erred in denying his motion for a judgment of acquittal on both the conspiracy and the substantive counts. Panica’s defense at the trial consisted of the testimony of two witnesses, Daniel Capano and Edward Sableski. The substance of their testimony was that they met Panica on the night in question in a New York restaurant and together returned to New Jersey to play cards. Instead, they drank at Russells Tavern and at 9:30 went tо the Plaza Diner to have something to eat before going to a place where Panica could get a taxi back to New York. Sometime after 10:00 P.M. the three left the diner.
Considering all the evidence in the light most favorable to the government, Glasser v. United States,
Panica also challenges his conviction on the substantive charge of possessing narcotics with the intent to distribute them. The basis of his claim is that there was insufficient evidence to prove that he was in possession of the narcotics discovered in the trunk of the Cadillac. Since we hold that’ there was adequate evidence to find that Panica was a conspirator, his conviction on the substantive count must also be upheld. He was riding in the automobile which was carrying heroin pursuant to a plan in which the jury could find he knowingly participated. From these facts the jury could infer that Panica had equal access to and control of the heroin in the trunk and thus was in constructive possession.
Cf.
United States v. Massarotti,
Panica’s other contentions can be briefly disposed of. He claims that Judge Gagliardi improperly instructed the jury on the issue of flight, but we find no objection to the court’s charge.
4
His other claim concerns Judge Gagliar-di’s refusal to suppress the use of Pani-ca’s 1960 narcotics convictiоn for impeachment purposes, thus allegedly keeping Panica from testifying at the trial. The use of a 12 year old conviction, where the defendant was not released from prison until 8 years prior to trial, comes well within the limits of the trial judge’s discretion to bar or permit such evidencе. See United States v. Puco,
We affirm the convictions
Notes
. A fourth defendant, Frank DeSimone, was also indicted. He was tried with Panica and at the close of the government’s casе his motion for a judgment of acquittal was granted.
. This recital of the government’s case is taken from the facts as developed at the suppression hearing, in which all three appellants participated. At the trial of Christophe and Pierro, the facts were stipulated to be the same as those presented at the suppression hearing; the government’s case at Panica’s trial was also substantially the same.
. Christophe and Panica also argue that the search was invalid because nothing prevented the agents from immobilizing the Cadillac and then obtaining a warrant before conducting the search. The Supreme Court dealt with this argument, contrary to Panica’s contentions, in Chambers v. Maroney,
. The trial court instructed the jury as follows :
Now, you may take into account whether or not there has been flight or concealment by the defendant after a crime has been committed. This does not create a presumption of guilt. If you find that there was flight by the defendant, you may consider it as tending to prove the defendant’s consciousness of guilt.
However, you are not required to do so. You should consider and weigh any evidence of flight or concealment by the defendant in connection with all other evidence in the case and give it such weight as you in your judgment decide it is entitled to receive.