Chin Kay v. United States

Appellant appeals from a judgment ■of conviction following a jury trial finding him guilty of the offense of fraudulently and knowingly concealing narcotics in violation of 21 U.S.C. § 174 . 1 Jurisdiction of this court is invoked by appellant under 28 U.S.C. § 1291 .

Appellant and one Wong Shew were indicted in a two-count indictment. The first count charged appellant and Wong Shew with the unlawful possession of narcotics in Watsonville, California, on or about the 27th day of September, 1960. Count two charged appellant alone with the unlawful possession of narcotics in Watsonville, California, on September 28, 1960. After the indictment and before the trial, the co-defendant Wong Shew died and no evidence was presented as to the first count of the indictment, which was eventually dismissed by the government, and trial of the appellant on the second count resulted in the conviction from which the present appeal is taken.

The narcotics which appellant was convicted of concealing were seized at his home at 107-B Marchant St., Watsonville, California, on September 28, 1960, pursuant to a search warrant issued by a United States Commissioner.

Prior to trial appellant moved under…

(dissenting).

I dissent.

In the first place, the majority opinion in holding that the allegations of the first and fifth paragraphs of the affidavit are sufficient on their face to establish probable cause for the issuance of the search warrant overrules, perhaps inadvertently, Kohler v. United States (C.A. 9) 9 F.2d 23 , and Poldo v. United States (C.A. 9) 55 F.2d 866 , which hold that an affidavit for search warrant which fails to state the time of the observation of the events on which the affidavit is based is insufficient to show probable cause for the issuance of a warrant. The first paragraph of the affidavit in this case states that on or about September 20, 1960, the affiant, Feldman, was told by Agent Fa-hey of Fahey’s trip to Watsonville, California, and of the events and conversation which there transpired, but there is no statement in the affidavit as to the date on which the trip was made and the events and conversation took place, as required by the Kohler and Poldo cases, supra.

This deficiency in the affidavit was never specifially pointed out, either in the trial court or here, although a general objection as to the sufficiency of the affidavit on its face was…

311 F.2d 317 CHIN KAY, Appellant, v. UNITED STATES of America, Appellee. No. 17469. United States Court of Appeals Ninth Circuit. Nov. 26, 1962, Rehearing Denied March 4, 1963. John H. Riordan, Jr., and William Gintjee, San Francisco, Cal., for appellant. Cecil F. Poole, U.S. Atty., Laurence E. Dayton and John Kaplan, Asst. U.S. Attys., San Francisco, Cal., for appellee. Before HAMLEY and HAMLIN, Circuit Judges, and MURRAY, District Judge. HAMLIN, Circuit Judge. 1 Appellant appeals from a judgment of conviction following a jury trial finding him guilty of the offense of fraudulently and knowingly concealing narcotics in violation of 21 U.S.C. 174. 1 Jurisdiction of this court is invoked by appellant under 28 U.S.C. 1291. 2 Appellant and one Wong Shew were indicted in a two-count indictment. The first count charged appellant and Wong Shew with the unlawful possession of narcotics in Watsonville, California, on or about the 27th day of September, 1960. Count two charged appellant alone with the unlawful possession of narcotics in Watsonville, California, on September 28, 1960. After the indictment and before the trial, the co-defendant Wong Shew died and no evidence was presented as…