United States v. John Kimak

John Kimak appeals from a judgment of conviction for violation of 21 U.S.C. § 844 , based upon his possession of MDA, a Schedule I controlled substance. Appellant’s motion to suppress the MDA found in his automobile was denied by the district court following a hearing. The point for reversal pressed by Kimak is that his automobile was subjected to an illegal search and seizure.

The Facts

On August 6, 1979, DEA Agent Robert Prezioso was told by an informant that one Henry Shernoff was going to sell him a pound of MDA the following day. Accordingly, Prezioso and several other agents went the next day to the informant’s address on Market Street in San Francisco, and Prezioso went inside to await Sher-noff’s arrival. Shortly thereafter, the additional agents who were parked outside observed Shernoff arrive in appellant Kimak’s car. Shernoff had asked Kimak to give him a lift to Market Street and to wait for him in the car while he was inside.

Before concluding a sale of one pound of MDA to Prezioso and the informant for $6,100, Shernoff told Prezioso that he would have to deliver the money from the sale to his “man”; his “man,” said Shernoff, was waiting outside to drive him home.…