United States v. Henry Ogle Watson

504 F.2d 849 UNITED STATES of America, Plaintiff-Appellee, v. Henry Ogle WATSON, Defendant-Appellant. No. 73-1539. United States Court of Appeals, Ninth Circuit. March 20, 1974, Rehearing Denied March 20, 1974, Certiorari Granted Feb. 18,1975, See 95 S.Ct. 1117 . 1 Michael D. Nasatir (argued), of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellant. 2 Michael T. Kenney, Asst. U.S. Atty. (argued), William D. Keller, U.S. Atty., Eric A. Nobles, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. 3 Before ELY and GOODWIN, Circuit Judges, and MURRAY, * District judge. WILLIAM D. MURRAY, District Judge: 4 An indictment was filed against the appellant on September 11, 1972, alleging a four count violation of 18 U.S.C. 1708 (stealing from the mails). Count 1 alleged a violation on August 23, 1972; Count 2 alleged a violation on August 17, 1972; Count 3 alleged a violation on August 23, 1972; and Count 4 alleged a violation on May 28, 1971. The appellant was ultimately tried on Counts 1, 2 and 3. Count 4 was dismissed. The jury returned a verdict of guilty as to Counts 1 and 3, and guilty as to Count 2. 5 On the day of the trial, the district court heard…

An indictment was filed against the appellant on September 11, 1972, alleging a four count violation of 18 U.S.C. § 1708 (stealing from the mails). Count 1 alleged a violation on August 23, 1972; Count 2 alleged a violation on August 17, 1972; Count 3 alleged a violation on August 23, 1972; and Count 4 alleged a violation on May 28, 1971. The appellant was ultimately tried on Counts 1, 2 and 3. Count 4 was dismissed. The jury returned a verdict of guilty as to Counts 1 and 3, and not guilty as to Count 2.

On the day of the trial, the district court heard motions to suppress evidence pursuant to Rule 41(c) Federal Rules of Criminal Procedure and a motion to determine the voluntariness of any post-arrest statements pursuant to Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964). In response to these motions, the government called Frank L. Barbarick, a U. S. Postal Inspector, as a witness. Inspector Bar-barick testified that he was contacted on the telephone by one Awad Khoury on August 17, 1972. He knew Khoury as *851 Tony and had previous contacts with him from five to ten times. In the course of these prior contacts, Khoury related information concerning…

(dissenting):

I would affirm. I agree that the agents could have obtained an arrest warrant as early as six days before they arrested Watson, but it by no means follows that the arrest without a warrant was not lawful. I know of no case which holds that officers must make an arrest the moment they come into possession of enough evidence to cause a magistrate to issue a warrant. United States v. Leon, 460 F.2d 299, 300 (9th Cir. 1972). There are many times when good law enforcement commends further investigation. At the time of Watson’s arrest, a pre-arranged signal gave the officers new knowledge that Watson was then in possession of additional stolen credit cards. This information alone would have justified a warrantless arrest at the time it was made.

Given a lawful arrest, the only basis Watson urged in the trial court for his motion to suppress the evidence collapses. I do not join in the majority’s discussion of Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), as it is not responsive to any issue raised below or in the briefs and arguments on appeal.