United States v. Joseph Rodney Thomas

Joseph Rodney Thomas appeals from his conviction on three counts of violation of 21 U.S.C. § 174 and one count of violation of 26 U.S.C. § 4705 (a). The Government concedes that there is no evidence supporting the conviction under section 4705(a). We agree and reverse as to that count.

On the remaining counts, defendant’s only point is that the conviction was based upon evidence seized as the result of an unreasonable search of his person. The search was made without either a warrant for the search of his person, or a warrant for his arrest. The Government defends the search on the ground that it was incident to an arrest made on probable cause to believe defendant had committed a felony. We agree, and affirm as to the three section 174 counts.

There was substantial evidence tending to establish the following facts: On April 23, 1969, Agent Charles Henry of the Federal Bureau of Narcotics and Dangerous Drugs, operating under cover, entered the apartment of a suspect, John McCallon. Henry entered the apartment, located at 1121 West Vernon Avenue, Los Angeles, with Government advance funds, for the purpose of providing McCallon an opportunity to sell heroin to him.

McCallon…

(dissenting) :

I regret that I am not able to concur in my Brother Hamley’s opinion. I do not think that probable cause for the search and arrest (or was it the arrest and search?) of Thomas was proved. The government presented but three witnesses. I analyze the pertinent testimony of each.

1. Charles Henry. Henry is a narcotics agent. On April 28, 1969, he went to an apartment at 1121 West Vernon Avenue, arriving at 11:30 A.M. His purpose was to buy heroin. In the apartment he met McCallon and gave him $325 of official government funds. McCallon left the apartment at 11:55 A. M., but Henry remained there. Mc-Callon returned at about 12:55 P.M. and gave Henry heroin. Henry left the apartment, met other narcotics agents, and told them that he had purchased heroin, the nature of which they verified by a field test. The other agents left the area and joined the surveillance agents who were still “on” McCallon’s house and “on” defendant’s (Thomas’) “now present” residence. They were notified that it was heroin, and an arrest proceeded.

2. Samuel D. Ozment. He is also a narcotics agent. On April 20, (the context makes it clear that this is 28) 1969, he and Agent Herring were in the…

432 F.2d 120 UNITED STATES of America, Appellee, v. Joseph Rodney THOMAS, Appellant. No. 25328. United States Court of Appeals, Ninth Circuit. September 25, 1970. Certiorari Denied January 25, 1971. See 91 S.Ct. 587 . William C. Miller, Los Angeles, Cal., for appellant. Robert L. Meyer, U. S. Atty., H. J. Novak, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before HAMLEY and DUNIWAY, Circuit Judges, and THOMPSON, * District Judge. HAMLEY, Circuit Judge: 1 Joseph Rodney Thomas appeals from his conviction on three counts of violation of 21 U.S.C. § 174 and one count of violation of 26 U.S.C. § 4705 (a). The Government concedes that there is no evidence supporting the conviction under section 4705(a). We agree and reverse as to that count. 2 On the remaining counts, defendant's only point is that the conviction was based upon evidence seized as the result of an unreasonable search of his person. The search was made without either a warrant for the search of his person, or a warrant for his arrest. The Government defends the search on the ground that it was incident to an arrest made on probable cause to believe defendant had committed a felony. We agree, and affirm as…