347 F2d 940 United States v. L Porter

347 F.2d 940

UNITED STATES of America, Plaintiff-Appellee,
Charles L. PORTER, Defendant-Appellant.

No. 16051.

United States Court of Appeals Sixth Circuit.

June 25, 1965.

Wiley Dinsmore, Cincinnati, Ohio, for appellant.

Boyce F. Martin, Jr., U. S. Atty., Louisville, Ky., for appellee.

Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and MATHES, Senior District Judge.*


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This is an appeal from conviction and sentence for possession of goods stolen from an interstate shipment in violation of 18 U.S.C. § 659.


No motion for suppression of evidence was made prior to trial, but during trial counsel for defendant moved to suppress evidence as to the very articles the possession of which was alleged to constitute the crime.


The District Judge denied the motion without taking evidence and without entering any findings of fact or conclusions of law.


This is entirely understandable since the Supreme Court decision in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) was released the same day the instant case was tried, and hence could not have come to the attention of the District Judge. The Preston case limited searches without warrant incident to a lawful arrest to those which are not "remote in time or place from the arrest." Preston v. United States, supra at 367, 84 S.Ct. at 883.


As to this issue, our review of this record convinces us that the testimony it contains is inadequate to resolve the constitutionality of the search and seizure here involved.


Judgment vacated and remanded for further proceedings consistent with this opinion. Williams v. United States, 282 F.2d 940, 941 (C.A. 6, 1960); United States v. Williams, 314 F.2d 795 (C.A. 6, 1963).



William C. Mathes, Senior District Judge of the Southern District of California, sitting by designation