Appeal from the United States District Court for the Northern District of Indiana, Hammond Division - No. H CR 74-160 ALLEN SHARP, Judge.
Sprecher and Bauer, Circuit Judges, and Perry, Senior District Judge.*fn*
The primary question in this appeal concerns the quantity of a narcotic necessary to obtain a conviction for possession of heroin in violation of 21 U.S.C. § 844(a).
The defendant-petitioner, Richie Dean Jeffers, was arrested at her home at approximately 7:30 a.m. on September 26, 1974, on an unrelated charge. At the time of her arrest she was in bed. While she was dressing, one of the arresting officers, Officer Colby, made a cursory search of a purse which lay near petitioner's bed, to determine if weapons were present. He then gave the purse to the petitioner. As they were leaving for the Hammond Federal Building, the petitioner expressed a desire to leave the purse with her mother, who was present. Officer Colby advised her that she would need the identification in the purse during processing, and so she kept it with her.
During processing at the Hammond Federal Building, petitioner asked another agent, Special Agent Munson, if he would get her "nerve pills" which she said were in the coin purse within her purse. Agent Munson retrieved the purse from another agent, examined the coin purse, but found no nerve pills. He did find, however, a small note folded up, which when unfolded revealed a small quantity of brown powder, subsequently found to contain heroin. Thereafter, upon a more thorough examination of the purse, a small aluminum foil packet containing heroin was also found.
At trial, an expert testified that the note contained 295 milligrams of brown powder containing 32 milligrams of pure heroin and that the foil contained 106 milligrams of brown powder containing 3 milligrams of heroin. The petitioner was indicted and convicted for possession of these two quantities of heroin. She appeals, and for the reasons stated we affirm.
Petitioner brings two principle contentions before this court.*fn1 First, the petitioner argues that the search of her purse made after her arrest and the seizure of the two packets containing heroin were unlawful, and that the evidence obtained thereby must be suppressed. Second, the petitioner argues that the trial court gave an incorrect instruction since it refused to apply the "usable quantity" doctrine with regard to the amount of heroin found.
In regard to the first issue, we find that the search and seizure under the instant circumstances was proper. Clearly, the search and seizure of the second quantity of heroin (in the foil) stands or falls on the validity of the search and seizure of the first quantity. So the question comes down to whether Agent Munson, when he searched the petitioner's purse to find the "nerve pills" and when he unfolded the note and found the heroin, violated the petitioner's Fourth Amendment rights.
Recently, the Supreme Court has handed down two decisions which, at least in their broad language, seem to cover the situation. In United States v. Edwards, 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234 (1974), the defendant was arrested at night on suspicion of attempting to break into a post office. The next day, the police provided him with another set of clothes, and took his clothes to be examined for the presence of paint chips from the post office window. Upon examination, incriminating paint chips were found. The Supreme Court upheld this search. Mr. Justice White wrote for the Court:
The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant is subject to various exceptions. One of them permits warrantless searches incident to custodial arrests, . . . and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.
It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. . . . The courts of appeals have followed this same rule, holding that both the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence. Nor is there any doubt that clothing or other belongings may be seized upon ...