434 F2d 1026 United States v. Sirrs

434 F.2d 1026

UNITED STATES of America, Appellant,
v.
Thomas Van SIRRS, Appellee.

No. 25888.

United States Court of Appeals, Ninth Circuit.

November 20, 1970.

Robert A. Belluomini (argued), San Francisco, Cal., for appellant.

D. Richard Hammersley (argued), Sp. Asst. U. S. Atty., Sidney I. Lezak, U. S. Atty., Tommy Hawk, Asst. U. S. Atty., Portland, Or., for appellee.

Before BARNES, BROWNING, and TRASK, Circuit Judges.

PER CURIAM:

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1

Appellant, convicted on two counts of possessing (21 U.S.C. § 331(q) (3)), and manufacturing (21 U.S.C. § 331(q) (1)) methamphetamine, raised three alleged errors. The first two were that the affidavit upon which the search warrant was based was insufficient to provide probable cause for the issuance of the warrant under the holding of Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. This precise question was decided adversely to appellant in his codefendant's appeal (United States v. Hillstrom, 429 F.2d 982 (9th Cir. (1970)) decided September 9, 1970. That is the law of the case as it exists with respect to the affidavit in question, and we would not change it.

2

Appellant's third point is that the evidence introduced against appellant was the product of the alleged illegal search. Once the legality of the search has been established, the merit of this claim is destroyed.

3

We affirm.