370 F.2d 250 - Vauss v. United States — 370 F.2d 250

¶2 *251Mr. Hal Witt, Washington, D. C. (appointed by this court), for appellant.

¶3Mr. Robert S. Brady, Atty., Dept, of Justice, with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

¶4Before Danaher, Burger and McGowan, Circuit Judges.

¶5PER CURIAM.

¶6Two police officers found appellant unconscious on a public street; they called an ambulance when they could not rouse him. One officer searched appellant in order to secure identification if possible and then to prepare a report for the hospital concerning the sick man. In the process, he examined the appellant’s pockets, did not find identifying material, but found 15 cellophane envelopes containing a white powder which at the time appeared to the officer to be narcotics, packaged as he had observed contraband narcotics on other occasions.

¶7After the arrival of the ambulance crew who attended the appellant, the latter regained consciousness and was taken to the police station where a capsule, containing a white powder similar to that in the cellophane envelopes, was found on his person. Subsequent laboratory analysis confirmed the officer’s original tentative conclusion that the white substance was narcotics. No federal stamps were attached to the narcotics.

¶8Appellant was found guilty on one count of having purchased, sold and dispensed a narcotic drug not in or from an original stamped package and on another count of having facilitated the concealment and sale of the drug after illegal importation. Concurrent sentences were imposed.

¶9At argument, appellant’s counsel abandoned his pretrial claim that the arrest was illegal. He asserts, however, that the narcotics found on his person were illegally seized and should have been suppressed. We reject that contention as unfounded. Perhaps because in a typical factual setting of arrest plus discovery and seizure of evidence the arrest occurs first and the search and seizure are incidental to it, there is a tendency to forget momentarily that evidence can be seized in other ways than by arrest, or by formal warrant. Admissible evidence may be acquired before or after an arrest or without an arrest. If discovered by search, its admissibility turns on whether the search was lawful, i. e., reasonable in the circumstances.1 That so reason*252able a search as occurred here happens to yield evidence of a crime as a by-product even though not so intended is irrelevant. A search of one found in an unconscious condition is both legally permissible and highly necessary. There is a positive need to see if the person is carrying some indication of a medical history, the rapid discovery of which may save his life; there is also a need to identify persons so found in order to notify relatives or friends. That the cause of appellant’s being unconscious was not known in no way impaired but rather enhanced the need and inherent power to search appellant.2

¶10As soon as the policeman saw a substance which, as a prudent officer he recognized as a “deck” of “dope,” indeed some 15 such envelopes, grounds for making an arrest existed. Use of the evidence, discovered as described, and of the heroin capsule found at the precinct after the arrest, was not unlawful.

¶11One other claim on appeal warrants comment. After the jury retired under correct instructions, to which no objection was made, it returned to inquire3 whether possession constituted purchase and sale of narcotics and whether it constituted knowledge that the narcotics were illegally imported. The court answered in the affirmative.

¶12No doubt, a more complete explanation would have been better advised but again no objection was made by the defense. We must read the dubious supplemental instruction along with the principal instruction and consider the matter as a whole; so viewed, we can not regard this as “plain error.” The unexplained and overwhelming evidence of possession of the contraband drugs was, of course, sufficient to authorize judgment of guilt on both counts.4

¶13Affirmed.

¶16. The judge in his instructions had read to the jury the indictment which had tracked 26 U.S.C. § 4704(a) and 21 U.S.C. § 174. The judge had explained that the absence of appropriate taxpaid stamps constituted prima facie evidence of a violation of the statute, just as possession of the narcotics was to be deemed sufficient evidence to authorize conviction unless the accused either by his own testimony or otherwise “explains the possession to the satisfaction of the jury.”

¶17The Supreme Court in Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed. 2d 597 (1959) agreed with the Court of Appeals which had found no error in “an instruction that proof of possession of unstamped heroin, in the absence of explanation, might support a conviction on each of the charges in view of the separate statutory presumptions.” Id.,359 U.S. at 20, 21, 79 S.Ct. at 562. And see Harris v. United States, 248 F.2d 196, 199-200 (8 Cir. 1957).

¶18The Court pointed out that Harris had made no objection to the court’s charge at the time of trial. 359 U.S. at 21, 79 S.Ct. 560.

¶19The heroin here, just as in Harris v. United States, had been introduced in evidence and the jury could determine whether or not it was stamped. The instructions as given in detail clearly were related to the question submitted by the jury as to which the supplemental instruction was forthcoming. As we read the instructions as a whole in light of the circumstances set forth, we can not believe that the jury could have been misled.

How this case has been cited