Opinion
Rehearing Denied August 20, 1923.
Walter Metzenbaum, of Seattle, Wash., for plaintiff in error.
Thos. P. Revelle, U.S. Atty., and De Wolfe Emory, Sp. Asst. U.S. Atty., both of Seattle, Wash.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
HUNT, Circuit Judge.
Hirata seeks reversal of his conviction under two counts of an indictment filed in September, 1921, charging in count 1 that on July 6, 1921, Hirata unlawfully, and not in the original stamped package, or from the original stamped package, purchased morphine and cocaine, and in count 2 that he sold and dealt in narcotics. In November, and after the case was called for trial, and before the jury was impaneled, defendant's counsel moved for a return of the narcotics to be used as evidence and suppression of such evidence, on the ground that no search warrant had been issued at the time of the search of Hirata's premises. The court overruled the motion, on the ground that it was made too late, and the trial proceeded.
There was evidence that certain police officers of the city of Seattle arranged with a Japanese girl addict to approach Hirata and try to purchase narcotics from him. The girl went to a hotel, met Hirata, and came out very soon with a package of morphine, which she gave
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to one of the police officers, who was waiting outside for her. A policeman went immediately into the hotel and found Hirata, who admitted that he had sold the narcotic, morphine, to the girl. The police officers took Hirata to another room in the hotel, where, under the boards of the floor, several packages of narcotics were found. Defendant told the police where more narcotics were concealed, and wanted to 'fix things up' with the officers. Defendant objected to the introduction of the drugs, upon the ground that no search warrant for the arrest of Hirata had been issued. The court overruled the objection.
Our opinion is that, inasmuch as the drugs were seized by police officers of the city, and there is nothing whatever to show any participation in the search and seizure by federal authorities, the use of the drugs as evidence was competent. In McGrew v. United States, 281 F. 809, we held that, even assuming that an arrest of a person and seizure of intoxicating liquor made without search warrant were illegal, there was no invasion by any authority of the United States of the security afforded by the Constitution. Kanellos v. United States (C.C.A.) 282 F. 461; Timonen v. United States (C.C.A.) 286 F. 935. Defendant's rights have not been prejudiced.
There is no merit in the contention that the evidence was insufficient to sustain count 2, the sale count of the indictment. One of the police officers testified that certain marked money which had been given to the addict before she went to make the purchase was taken from the pocket of the defendant after his arrest.
The judgment is affirmed.