Cervantes

In February of 1956 defendant was tried and convicted of the offense of smuggling heroin and marihuana. After *399 the trial had begun, the defense made a motion to suppress the use as evidence of narcotics and a hypodermic syringe on the ground that the same was procured by illegal search and seizure.

A hearing was had on oral testimony outside the presence of the jury, at which Customs Agent Kenneth Grant testified, and the Court denied the motion.

On January 21, 1959, the Court of Appeals of the Ninth Circuit handed down its decision, and ordered:

The defendant being an indigent, counsel was appointed, at his request, to defend him.

On March 30, 1959, counsel for the defendant moved to dismiss the indictment, which motion was denied and a new trial granted.

On April 16, 1959, defendant moved to suppress as evidence certain heroin, hypodermic syringe and marihuana seeds seized on December 8,1955, on the ground that said property was unlawfully seized against the will of the defendant and without a search warrant.

A hearing was had at which the oral testimony of the officer making the seizure, Clifford J. Davis, and Customs Agent Kenneth Grant was heard. On motion of the…