United States v. Robert Arthur MacKay

606 F.2d 264 UNITED STATES of America, Plaintiff-Appellee, v. Robert Arthur MacKAY, Defendant-Appellant. No. 79-1224. United States Court of Appeals, Ninth Circuit. Oct. 9, 1979. Gerald M. Birnberg (argued), Jerry D. Patchen, Houston, Tex., on brief, for defendant-appellant. Michael D. Hawkins, U. S. Atty., Phoenix, Ariz., on brief; Eugene R. Bracamonte, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before ELY and SNEED, Circuit Judges, and TAKASUGI, * District Judge. PER CURIAM: 1 Robert Arthur MacKay ("MacKay") appeals his conviction for the violation of 18 U.S.C. §§ 922 (g)(1) and 924(a), which proscribes the transportation of a firearm in interstate commerce by a felon. 2 On August 1, 1978, during a colloquy between MacKay and an Assistant United States Attorney pertaining to an unrelated criminal investigation, MacKay stated he was an ex-felon and that he presently possessed a gun in his motor vehicle. 1 This statement was overheard by a Drug Control Agent who then relayed it to an agent of the Bureau of Alcohol, Firearms and Tobacco ("ATF"). Thereafter, MacKay's vehicle was placed…

Robert Arthur MacKay (“MacKay”) appeals his conviction for the violation of 18 U.S.C. §§ 922 (g)(1) and 924(a), which proscribes the transportation of a firearm in interstate commerce by a felon.

On August 1, 1978, during a colloquy between MacKay and an Assistant United States Attorney pertaining to an unrelated criminal investigation, MacKay stated he was an ex-felon and that he presently possessed a gun in his motor vehicle. 1 This statement was overheard by a Drug Control Agent who then relayed it to an agent of the Bureau of Alcohol, Firearms and Tobacco (“ATF”). Thereafter, MacKay’s vehicle was placed under surveillance. As MacKay approached his vehicle, the agents placed him under arrest and requested the keys to his car. The agents opened his trunk and found a suitcase therein. Without a search warrant, the suitcase was opened, disclosing a handgun which formed the basis for the subject indictment and prosecution.

The appeal focuses upon, among other things, the legality of the search. There is some issue as to whether this fourth amendment issue was preserved at trial. However, an examination of the transcript discloses that MacKay did indeed object to the admission of…

I concur in the result reached by the court.