Before SCHNACKENBERG and KNOCH, Circuit Judges, and MERCER, District Judge.
SCHNACKENBERG, Circuit Judge.
Upon the verdict of a jury, following a plea of not guilty, the district court convicted Richard McKay, defendant, of narcotic law violations, 26 U.S.C.A. § 4704(a) and 21 U.S.C.A. § 174, as charged in counts I and II of an indictment. From consecutive sentences on the verdict, defendant has appealed.
Defendant contends the court erred in overruling his motion to suppress evidence seized in his home after he had been arrested there by Indianapolis police officers, who had gone to the home with John Wilkie, Jr., a federal narcotics agent.
Before the trial started, the court conducted a hearing on defendant's motion to suppress, and at the trial, out of the presence of the jury, conducted a similar hearing upon an objection by defendant seeking to suppress such evidence. We now state certain facts shown on these hearings when the court refused to sustain defendant's position.
On May 21, 1959, the police officers and Wilkie were informed by Clinton Tucker, a drug addict on parole, that 41 capsules of heroin, buried in his back yard and recovered by the police, he had obtained from a man known as James Johnson*fn1 who had capsules of heroin in his apartment at 729 Congress Avenue, in Indianapolis, where Tucker was to receive about 150 additional capsules at 7:30 o'clock that same evening, and that Johnson was about to leave town for Chicago in a described automobile, which would be sitting in front of the house. Police Sergeant Owen's testimony shows that he had learned from Tucker that on previous occasions Tucker had seen narcotic drugs in defendant's house and had obtained them from him. Based upon these facts, Sergeant Owen went to the Marion County prosecutor's office and swore to an affidavit charging defendant with a violation of the Indiana Narcotics Act.*fn2 He obtained a warrant for arrest from the deputy prosecuting attorney, all according to standard procedure in Indiana. The affidavit, along with a warrant, was taken by Sergeant Owen from the prosecutor's office to the clerk of the court, where they were file-marked. The affidavit was retained in the clerk's office and Sergeant Owen took the warrant.*fn3
Sergeant Owen, Sergeant Keithley and Wilkie proceeded to 729 Congress Avenue where they observed an automobile fitting the description previously given them. Owen's knock on the house door was answered by defendant's wife who asked "Who is it?" Owen said "Tuck". She opened the door, Owen showed her his badge and identification card, and in his right hand he had the arrest warrant. He asked her if James was at home and she said "upstairs". Then Keithley and Wilkie talked to her and Owen went upstairs and was met by defendant at the top of the stairs. Owen showed him his badge and identification and read the warrant to him. He also handed the warrant to defendant who read it and returned it to the officer. It is not disputed that these facts show that defendant was then arrested. Defendant's wife, Wilkie and Keithley came up to the room.
There were cameras, lugagge, blankets and electrical appliances around the room and defendant said that most of them were stolen. He walked around pointing out those which were stolen and those which were "ours". Packed suitcases were in the room. Owen asked defendant if he had any heroin there and defendant stated he had no narcotics on his premises. After he was arrested, defendant was sitting directly by a small dinette table upon which was a napkin box. The room was about 12 X 16 feet. Defendant sat a foot or two from the table. Owen noticed there were several napkins on top that looked disturbed and he picked the box up and removed a few napkins from the top and saw a large ball of tin foil or aluminum foil, "right by Mr. McKay", defendant. The attention of Wilkie and Keithley was called to this fact. As Owen opened this ball he discovered several capsules containing a white powder and defendant said the capsules were his. A field test was made and showed that the powder was a derivative of opium. 21 U.S.C.A. § 171(a).
For six months prior to the arrest the police had been investigating defendant vigorously. They had information obtained from drug addicts and other people in Indianapolis known to the police by their nicknames - "Rabbit", "Lightning" and "Ham Man".
Defendant was taken to police head-quarters where he was released on bond and at a subsequent court hearing the state caused the case to be dismissed. Sergeant Owen testified that he filed the arrest warrant at the police station in Indianapolis, but not in the court clerk's office. No arrest warrant for defendant has been found. No warrant to search the residence of defendant was obtained.
At the time defendant was arrested by the police no federal warrant had been issued. Such a warrant was obtained on May 22, 1959 from the United States commissioner by agent Wilkie, who had known since 1956 that the defendant was a narcotics peddler in Chicago and that he was under investigation "by our department for three or four years".
1. Defendant in this court argues that his motion to suppress evidence should have been sustained as the arrest of defendant and subsequent search of his premises were illegal. The government responds that the search of defendant's premises was incident to a valid arrest and not unreasonable.
The government here and in the court below (cf. Giordenello v. United States, 357 U.S. 480, 488, 78 S. Ct. 1245, 2 L. Ed. 2d 1503) has relied on two independent alternate contentions to sustain the judgment and sentence of the district court: first, the arrest was valid because there was sufficient evidence of probable cause to justify the arrest of defendant without a warrant, and second, the arrest was valid because there was sufficient basis for the issuance of the state warrant upon which defendant was arrested.
If, in either case, the arrest was valid, the finding of the heroin in defendant's room, under the circumstances of this case, occurred in a reasonable search incidental to his arrest and a search warrant was not required. United States ...