Opinion
No. 16402.
Argued November 22, 1961.
Decided January 11, 1962.
Mr. Franklin M. Schultz, Washington, D.C. (appointed by this court), with whom Mr. Charles F. Moore, Washington, D.C. (appointed by this court), was on the brief, for appellant.
Mr. Anthony G. Amsterdam, Asst. U.S. Atty., with whom Mr. David C. Acheson, U.S. Atty., and Messrs. Nathan J. Paulson and Thomas A. Flannery, Asst. U.S. Attys., were on the brief, for appellee. Mr. Charles T. Duncan, Prin. Asst. U.S. Atty., also entered an appearance for appellee.
Before EDGERTON, PRETTYMAN and FAHY, Circuit Judges.
This is an appeal from a judgment of conviction for violation of the narcotics laws. Three men were seated in an automobile, parked by the curb with the motor running. Holloway was in the driver's seat. Two police officers, on police business unrelated to any of these three, were passing by. They recognized Holloway as a known addict, and they knew he did not have an automobile driver's license. They stopped to inquire. Holloway refused to display a license or to open the car door. He made a gesture toward his mouth with his right hand; one officer observed white capsules in his hand and called out to his brother officer, "He is eating the caps." Thereupon the latter officer opened the curbside door and placed Holloway under arrest. Heroin was found in Holloway's pocket.
The points on this appeal are, principally, that the heroin taken from Holloway's pocket was inadmissible as evidence and that the trial judge should have directed a verdict of acquittal or granted a motion for a new trial. We find no error.
A companion case, No. 16635, Jackson v. United States, 112 U.S.App.D.C. ___, 301 F.2d 515, is also decided today.
Affirmed.