317 F.2d 356 - United States v. Serrano — 317 F.2d 356

How this case has been cited

Cited by 22 later decisions — most recently February 2010

11 federal appellate · 3 district · 8 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Richard S. Harrell, New York City, for appellant.

¶2Andrew T. McEvoy, Jr., Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for Southern District of New York, Arnold N. Enker, Asst. U. S. Atty., New York City, on the brief), for appellee.

¶3Before CLARK, SMITH and HAYS, Circuit Judges.

¶4PER CURIAM.

¶5In this appeal from a conviction for violation of the narcotics laws, 21 U.S.C. §§ 173 and 174, appellant claims that it was error to receive in evidence certain narcotics which, he alleges, were illegally seized as an incident of an unlawful arrest of the severed co-defendant Gonzales. We find it unnecessary to decide whether the arrest of Gonzales was unlawful. Since the narcotics were not seized in the course of a search of appellant’s person or premises, the seizure invaded no rights of Serrano which would entitle him to object to their introduction in evidence. Wong Sun v. United States, 371 U.S. 471, 492, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Lee Wan Nam, 274 F.2d 863 (2d Cir.), cert. denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1147 (1960).

¶6 *357Appellant urges that because Gonzales was a co-defendant, McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948) requires us to reverse. But in McDonald, a defendant with proper standing to do so moved for suppression and for return of the evidence illegally seized. Had the motion been granted (as the Supreme Court held that it should have been), the evidence would not have been available for use against any of the defendants. In the present case no one who had standing to do so moved for suppression of the evidence. Therefore the evidence was properly admitted.

¶7Affirmed.