CHIN KAY, Appellant, v. UNITED STATES of America, Appellee, 311 F.2d 317

HAMLIN, Circuit Judge. Appellant appeals from a judgment ■of conviction following a jury trial finding him guilty of the offense of fraudulently and knowingly concealing narcotics in violation of 21 U.S.C. § 174. Jurisdiction of this court is invoked by appellant under 28 U.S.C. § 1291. Appellant and one Wong Shew were indicted in a two-count indictment. The first count charged appellant and Wong Shew with the unlawful possession of narcotics in Watsonville, California, on or about the 27th day of September, 1960.

Count two charged appellant alone with the unlawful possession of narcotics in Watsonville, California, on September 28, 1960. After the indictment and before the trial, the co-defendant Wong Shew died and no evidence was presented as to the first count of the indictment, which was eventually dismissed by the government, and trial of the appellant on the second count resulted in the conviction from which the present appeal is taken.

The narcotics which appellant was convicted of concealing were seized at his home at 107-B Marchant St., Watsonville, California, on September 28, 1960, pursuant to a search warrant issued by a United States Commissioner. Prior to trial appellant moved under 41(

e) of the Federal Rules of Criminal Procedure to suppress the evidence seized at appellant’s home on September 28, 1960, on the ground that the search warrant was invalid because issued without probable cause, and that said search and seizure at appellant’s home was in violation of appellant’s rights under the Fourth Amendment of the Constitution. Extensive evidence and argument on the motion to suppress was heard by the district court prior to trial and motion was denied.

Thereafter, during the trial, objection was made to the admission in evidence of the narcotics seized at appellant’s home under the search warrant on the ground that the warrant was invalid and search and seizure illegal for the same reasons previously urged on the motion to suppress and the objection was overruled, and the objection was again made and overruled at the close of all the evidence. The sole question presented on this appeal concerns the validity of the search warrant and the search for and seizure of narcotics at appellant’s home on September 28, 1960.

If the search and seizure were invalid the narcotics seized were inadmissible in evidence against appellant under the provisions of Rule 41 (e), and his conviction cannot stand.

The affidavit for the search warrant made by one Ira Feldman, Agent of the Federal Bureau of Narcotics, recites the following: “On or about September 20, 1960, I was told by Agent Charles Fahey of the Federal Bureau of Narcotics that he, in the company of a confidential informant, had travelled to Watsonville, California, that he had placed transmitting devices on the confidential informant; that he had seen the confidential informant enter at Suey Sing Benevolent Association on Bridge Street, No. 118, Watson-ville, California; that over the transmitting device he had heard the confidential informant talk with someone who answered to the name of Chin; that that person had said he could provide opium to the confidential informant, and was in the , narcotics business.

There was also mentioned in the conversation that the person answering to the name of Chin was the President of the tong. “Furthermore, Agent Fahey told me that he had searched the confidential informant before he en- ■ tered the Suey Sing Tong and found no narcotics on his person and that when the confidential informant 20 minutes later had emerged from the Suey Sing Tong the confidential informant surrendered narcotics to Agent Fahey; “That on September 27, 1960, I was on the open ground of the Suey Sing Benevolent Association and there smelled the unmistakable odor of opium having been recently smoked at many places within the tong headquarters; “That 3 informants whom I have reason to believe, without apparent prior conversations with each other, separately all stated to me that Chin Kay keeps narcotics at his house at 107B Marchant Street, Watsonville, California, and at his place of business at 151 Main Street, Watsonville, California, the China Cafe; “That of my knowledge, one Chin Kay is the president of the Suey Sing Benevolent Association; that he lives at 107B Marchant Street, Watsonville, California; that his place of business is 151 Main Street, Watsonville, California; that he has control and keys available to gain admittance to those places where the said opium was smoked; and that Chin Kay admitted to me that he had prior conviction for a former violation of the Federal Narcotics Laws.” It is appellant’s position, first, that the-, affidavit, on its face, is insufficient because it contains no facts within the affiant’s personal knowledge, as distinguished from conclusions and beliefs,. sufficient to establish probable cause for the issuance of the warrant.

Secondly, it is appellant’s further position that even if the affidavit on its face showed probable cause for the issuance of the search warrant, the evidence presented at the hearing on the motion to suppress and at the trial, established that at the time the search warrant was issued, the officers did not in fact have sufficient competent evidence to show probable cause for the issuance of the search warrant. We must reject appellant’s first contention that the warrant is insufficient on its face to establish probable cause for the issuance of the search warrant.

Probable cause exists where the facts and circumstances within the officer’s knowledge, and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879; Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Rodgers v. United States, (9th Cir.) 267 F.2d 79, 85.

The same cases also stand for the proposition that hearsay evidence may provide the probable cause necessary for either an arrest without a warrant, or for the issuance of an arrest warrant or a search warrant, if a substantial basis for crediting the hearsay evidence is presented. In this case Agent Feldman, in making the affidavit for the warrant, and the Commissioner, in issuing the warrant, were justified in giving credence to the information furnished Feldman by his fellow Narcotic Agent, Fahey.

That information was to the effect that Fahey had listened in on an alleged narcotic transaction between an informer and a person who answered to the name of Chin; that Chin stated he was in the narcotics business and could provide opium to the confidential informer. In the course of the conversation it was mentioned that the person answering to the name Chin was President of the Suey Sing Tong.

This statement or admission by the person answering to the name of Chin, who was identified in the conversation as being the president of the Tong, that he was in the narcotics business, together with Agent Feldman’s personal knowledge recited in the last paragraph of the affidavit that the appellant, Chin Kay, was President of the Tong, and had admitted to Feldman that he had a prior conviction under the narcotic laws, would furnish sufficient probable cause to issue a warrant for a search of Chin Kay’s house. These essential allegations are contained in paragraphs 1 and 5 of the Feldman affidavit.

As Judge Weinfeld, in the District Court of the Southern District of New York, stated in U. S. v.

Klapholz, D.C., 17 F.R.D. 18, 25, affirmed 230 F.2d 494 (C.A.2, 1955), cert. denied 351 U.S. 924, 76 S.Ct. 781, 100 L.Ed. 1454, “considering the nature of the objects of the search (in that case diamonds), the defendant’s admission was sufficient to warrant a search of her premises or any other place under her exclusive control.” So here, a statement by a person whom the agent could reasonably identify as appellant that he was in the narcotics business was sufficient to warrant a search for narcotics in his home or any other place under his exclusive control.

Appellant’s further contention is that even if the affidavit on its face showed probable cause for the issuance of the search warrant, the evidence produced at the hearing on the pre-trial motion to suppress and at the trial established that the officer did not in fact have sufficient competent evidence to show probable cause for the issuance of the search warrant. This contention must likewise be rejected. The burden is on a defendant who seeks to suppress evidence obtained under a regularly issued search warrant to show the want of probable cause. Batten v.

United States (5th Cir.), 188 F.2d 75-77; United States v. Warrington, D.C., 17 F.R.D. 25, 29; United States v. Okawa, D.C., 26 F.R.D. 384, 386; Wilson v. United States (10th Cir.), 218 F.2d 754, 757. In this case appellant not only failed to sustain his burden, he produced no proof to controvert the essential allegations of paragraphs 1 and 5 of the affidavit. At the hearing of the pre-trial motion to suppress, the only witnesses produced by appellant were the Chief of Police and a police officer of the city of Watsonville. They testified only as to the occurrences at the Tong headquarters on September 27th.

They had no knowledge of and in no way contradicted the essential allegations contained in the first and last paragraphs of the affidavit on which the search warrant was based. These two paragraphs referred to occurrences upon September 20th, one week prior to the day the Watsonville police officers went with the federal officers to the Tong headquarters. The activities on September 27 were the basis for Count one of the indictment where Wong Shew and the appellant Chin Kay were charged with a narcotic violation.

However, at the time of the trial Wong Shew had died and no evidence was introduced by the government in support of Count one of the indictment. During the trial, upon motion of the government, Count one of the indictment was dismissed. No narcotics seized on the afternoon of September 27 were offered in evidence, nor was evidence offered by the government as to anything that occurred on that day. The' sole evidence offered by the government was as to the search on September 28 of Chin Kay’s home where narcotics were found and which narcotics were admitted into evidence.

During the trial the only way that any of the occurrences on September 27 were mentioned was by reason of cross-examination by appellant’s counsel of government witnesses. Neither at the hearing of the pre-trial motion nor at the trial was any evidence produced to contradict the essential allegations contained in the first and last paragraphs of the affidavit upon which the search warrant was based. The attack on this appeal is made upon the ground that paragraphs 3 and 4 of the affidavit upon which the search warrant was based were not sufficient to justify the issuance of the search warrant.

The evidence offered at the pre-trial motion and at the trial also was an attack upon the sufficiency of the statements contained in paragraphs 3 and 4 of the affidavit and as to whether those statements in paragraphs 3 and 4 were true or not. We believe it unnecessary for us to determine whether paragraphs 3 and 4 of the affidavit were sufficient or not, or whether the evidence produced at the pre-trial motion or on the trial supported or did not support the allegations contained in these two paragraphs.

Assuming arguendo that these two paragraphs of the affidavit contained material inadmissible to serve as a basis for the issuance of a search warrant, this fact does not invalidate the warrant if in addition the affidavit contains other essential allegations sufficient to establish probable cause. Clay v. United States, 246 F.2d 298, 304 (C.A.5 1957).

We have already held above that the first and last paragraphs of the affidavit were sufficient to justify the search warrant and therefore even if the allegations of the third and fourth paragraphs or the evidence to sustain those allegations was not sufficient, we hold that the search warrant was properly issued. The proof is uncontroverted that when the search warrant was executed and served on September 28th narcotics were found in appellant’s home. The evidence showed that one package of heroin was found in a dresser drawer in the bedroom, and another package of heroin was found in a drawer in the kitchen.

Two cans of opium were also found in a kitchen drawer. The appellant testified that he had suffered a prior conviction for narcotics violation, but that he had no idea how the opium and heroin could have got into his home. The verdict of the jury was amply sustained by the evidence.

Judgment affirmed. . “Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, * * * shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000.” . Rule 41(

e) provides: “Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained on the ground that * * * (4) there ■was not probable cause for believing the existence of the grounds on which the warrant was issued, * * *. The judge shall receive evidence on any issue of fact necessary to the decision of the motion.

If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. The motion to suppress evidence may also be made in the district where the trial is to be had.

The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.” . “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” .

In the affidavit and throughout the hearing on the motion to suppress and the trial, the Suey Sing organization is referred to as the Suey Sing Benevolent Association and the Suey Sing Tong, interchangeably. Both names refer to the same organization and there is no significance in the different titles. . In addition to any other information that may have come to Agent Feldman it is uncontradicted that he was advised by the Chief of Police of Watsonville that Chin Kay was President of the Suey Sing Tong and by Agent Wong that Chin Kay’s residence was on Marchant Street in Watsonville. .

Even when appellant testified at the trial his experienced counsel did not ask him to deny making the statements on September 20th. that he was in the narcotics business and that he could provide opium. . We are making no determination as to •whether they were or were not.