Moorev.United States

United States Court of Appeals, District of Columbia CircuitMar 26, 1964
330 F.2d 842 (D.C. Cir. 1964)

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No. 18271.

Argued March 10, 1964.

Decided March 26, 1964.

Mr. Mervyn I. Aronoff, Washington, D.C., with whom Mr. Solomon Grossberg, Washington, D.C. (both appointed by this court) was on the brief, for appellant.

Mr. Robert D. Devlin, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty. and Frank Q. Nebeker, Asst. U.S. Atty., were on the brief, for appellee.

Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.

Appellant was convicted on four counts of an indictment charging violation of the narcotic laws, 26 U.S.C. § 4704(a) and 21 U.S.C. § 174. Counts one and two related to events of February 20, 1962. Counts three and four related to events of May 12, 1962. On both occasions upon search after an arrest appellant was found in possession of narcotic drugs. Evidence as to these drugs was admitted at trial. On the appeal it is contended this evidence should have been excluded because obtained by a search sought to be justified on each occasion as incident to the arrest whereas, it is contended, the arrests were unlawful because without a warrant or probable cause.

The arrest of May 12, 1962, which was for disorderly conduct, was lawful. The contention that when the officer spoke to appellant he had no warrant and there was not probable cause for an arrest does not justify the disorderly conduct for which appellant was arrested. The ensuing search was incident to a lawful arrest and the evidence thus procured, being relevant and material, was admissible. We accordingly affirm as to counts three and four; and since the sentences upon these counts are concurrent with those imposed under counts one and two, concerned with the events of February 20, 1962, we need not pass upon the validity of the convictions on those counts. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). Kelly v. United States, 111 U.S.App.D.C. 360, 297 F.2d 437 (1961), cert. denied, 369 U.S. 886, 82 S.Ct. 1159, 8 L.Ed.2d 287 (1962).