# Brief for the United States in Opposition — McKay v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0744%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States in Opposition - **Published:** January 1, 1961 - **Citation:** 365 U.S. 813 ## Text if : () tr) bd | ts Ne. 601 | . ; ae ee y Ju the Supreme Court of the United States OCTOBER TERM, 1960 RICHARD MeKAY. pretties En UNITED STATES GF A MERIEY LETITION Foi Y Writ ERIIORATTL. 7 by NITED STATES CORRT OF ALPE ALS Po 7 Se FP Red Ere tf, f FOR THE UNG VED sy VERS IN OP POST EON ¥ \\ EMAL ¢4 1): i ns rR | } PATI ee } Dae ? Tah 3 ‘ . INDEX Opinion below ........ IEE ee ee Ie . Question presented IE Naki sd cas cenicattmtenmrstinnsssesocks. Argument ine RE Foc RN Saree RL a a CITATIONS Cases: Bays v. State, 159.N.E. 2d:393, certiorari denied. .861 U.S. 972... i eaneebccasemuais Brinegar Vv. United States, 338 U.S. 160 Draper Vv. United States, 358 U.S. 307 .. Elkins v. United States, 364 U.S. 206. . ‘Harris v. United States, 331 U.S..145. United States v. Rabinowitz, 339 U.S. 56 Statutes: Sy SENEis Wi iiscnsksesdevsledsarnaoncicencunse 26 U.S.C. 4707(a)... Indiana Narcotics Act of 1935 5, ° 10 Burns Indiana stats. Ann: 36520............... RRO TU PEO Page th LY) WIAIAIARAS to bo ie) $n the Supreme Court of the United States OcToBER TERM, 1960. oe ° No. 601. RICHARD McKay, PETITIONER Vv. UNITED STATES OF AMERICA . ; 5 a ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT t o : | 4 BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW Y v : The apinion of the Court of Appeals (Pet. App. la-Ja) is reported at 283 F. 2d 399, JURISDICTION The judgment of tle Court of Appeals was entered on October 27, 1960. A petition. for rehearing was denied on November 29, 1960. The petition for a — writ of certiorari was. filed on December 24, 1960. The jarisdiction of this Court is invoked under 28 U.S.C. 1254(1). a, (1) 2 QUESTION PRESENTED Whether the Court of Appeals properly found that’ a search, in the course of which narcotics were foun. was ‘incident to a ‘valid arrest of petitioner on: prob- able cause. STATEMENT | Petitioner was convicted in the United States Dis- trict Court for the Southern District of menus on two counts charging narcotics violations under 26 U.S.C. 4704(a) and 21 U.S.C. 174. He was sentenced to two years on count one and five years on count two, the sentences to run consecutively (Pet. 4, la). The issues raised on petition relate to the cireum- stances of petitioner’s arrest and the attendant searc! and seizure of narcotics. A motion by petitioner to suppress the evidence of narcotics, made prior to trial and renewed at the time of trial, was denied after full hearing on both occasions (1 Tr. 184; 2 Tr. 147).' On appeal, the denial of the motion to ‘suppress was affirmed (Pet. la-6a). The pertinent facts adduced at the hearings on the motion to suppress are as follows: On May 21, 1959, Officers William Owen end Rob- ert Keithley of the Narcotics Detail of the Police De- partinent of Indianapolis, Indiana, arrested Clinton ‘ The transcripts of the hearing on petitioner's motion to suppress, held on November 10, 1959, and the hearing on the renewal of the motion at the trial are filed herewith. The November 10 several is designated herein as 1 Tr., and the triai transcript as 2 > Tr. : 3 Tucker, a drug addict. Aided by Federal Narcoties ‘Agent James Wilkie, they recovered from Tucker . forty-one capsules of heroin whith he had buried in his back yard (1 Tr. 13-14, 28, 46-47). Tucker told ° the officers that he had received the heroin from peti- = tioner (whom he knew as “James Johnson” and as) “Richard”), and that he was to pick up one hundred and fifty more capsules at petitioner’s house at 7:30, _ that evening (1 Tr: 15, 28-29, 81-82). Tucker gave the police petitioner's address, described the special knock he was.to use, and told them that petitioner was leaving Indianapolis that night for Chicago in an old model maroen or brown Hudson. automobile which ' would be parked in front of petitioner’s house (1 Ty. 29-30). | Indianapolis police. had been conducting a vigorous - investigation of petitioner’s narcotics’ activities for about six months, and both they and the Federal Nar- cotics Bureau had known of petitioner's acliwilies as a narcotics ‘peddler for three or four years (1 Tr, =0-21, 80-81). On the basis of this information ad the information secured from: Tucker, Officer, Owen: secured an arrest warrant (for Violation of. the In- diana Nareoties Act of 1935) from the office of the Indianapolis prosecutor (1 Tr. 9-12, 19-21). Accompanied by Keithley and Wiikig, Owen went to the address given him by Tucker, saw the auto- mobile which he had been told would be outside, gave the special knock, and was 4dmitted by petitioner's wife when he responded Tuck” to-a request for’ identification (1 Tr. 22, 29-31, 36, 74-75). When Owen showed petitioner’s wife the warrant, she di- 4 rected him upstairs where he found petitioner and placed him under arrest* (1 Tr. 22-23, 31-32, 61, 75-77, 108). Petitioner pointed out several items of stolen property, but denied possession of narcotics (1 Tr. 32-33). Officer Owen noticed that the contents of a package of napkins on a dinette table at which petitioner was seated had been disarranged; when lie removed sume of the napkins from the box, he found an aluminum foil package which contained sever! capsules of white powder. A field test’ reveaied the powder to be an opium vaehtaea't: (1 Tr. 33-34, 77, 111-112). Petitioner -was eeaaae ob bond. by the Indiana authorities and rearrested on a federal warrant. on May 22, 1959 .(1 Tr: 78-79,-84).. The case against petitioner was dismissed by Indiana authorities a? *he request of the Federal Narcotics Bureau (1 Tr. 44-46, 83-84). Although the wane of the ladianapelie Poiic Department showed that an affidavit had been filed -and an arrest warrant returned for petitione™, the oo itself could riot be found (1 Tr. ‘23-26, .S0)- 90; 2 Tr. 123-124, 136-147). The District Court found that the sila Was mati under a warrant valid under Indiana law, but he id that no arrest w warrant was required because the ..” * Petitioner and his wife testified that Owen had no war- rant and entered with his gun drawn. Owen denied that !« - used a guit and neither Keithley nor Wilkie, who were beh nd Owen, saw a gun in his hand. Both Keithley and Wilkie test:- fied that Owen had a warrant when he entered petitioi hous. and that petitioner read the warrant (1 Tr. 60-62, 68-6" 74, 76, 100, 108). 3. formation provided by Tucker and the recovery from him of the narcotics sold to him by petitioner consti- tuted~probable cause sufficient to justify petitioner’s arrest without a warrant (1 Tr. 173-176). The court held further that the search was lawful because it was incident to a valid arrest (1 Tr. 176-178, 184; 2 Tr. ’ 147), On appeal, the court below affirmed the denial of the motion to suppress. It found that the arresting officers had sufficient information concerning peti- tioner’s activities to constitute probable cause: for his arrest without a warrant, and that it was, theréfore, rant had been secured (Pet. 1a-6a). ARGUMENT The question of the validity of the arrest warrant, which petitioner argues at length (Pet. 2-3, 9-14), need not be determined. Both the Court of Appeals and the District Court have found that the arresting officers had probable cause for the arrest of peti- loner. And it is clear that, even though an arrest’ is made under color of a warrant which may be de: .- fective, the arrest and the attendant search will be deemed lawful if the arresting officers had probable “cause to believe that a felony had been, or was being, committed. ‘See U'nited States y. Rabinowitz, 339 U.S, Df, 60-65. Thé record supports the findings below that there Was probable cause. The arresting officers had .the concrete evidence of the‘commission of a felony in. the heroin capsules taken from Tucker. This was coupled unnecessary to determine whether a valid arrest war- mS with Tucker’s nating of petitioner-as the source of the narcoties.. Other information given the officers. by Tucker, such as petitioner’s presence at the stated address, the presence of a Hudson automobile, and the response to the special knock, was corroborated by the officers prior to the time petitioner was placed under arrest. Certainly, the detailed information se cured from Tucker, corroborated by the officers’ own observations, as well as by information previously Secured from other sources, constituted probable cause “for petitioner’s arrest. See Draper v. United States. 358 U.S. 307; Brinegar. v. United States, 338 U.s. 160, 175. Having lawfully arrested petitioner, the _ officers, under both federal law and the law of In- diana, had the authority to search for and seize nar- . coties seereted in a package less than a yard from the place petitioner was seated. See Harris vy, United States, 331 U.S. 145; see, also, Bays v. State, 159 'N.E. 2d 393 (Ind., 1959), certiorari denied, 361 U.S. 972. Since the search and seizure were lawful under both state and federal law, the denial of the motion to suppress the evidence in the federa] prosecution Wis proper. Elkins v. United States, ‘ U.S, 206. 7 | CONCLUSION _ The petition for a writ of certiorari should be denied. . | ~~ Respectfully submitted. ARCHIBALD Cox, Solicitor General. WILLIAM F. FOLey, | Acting Assistant Attorney General. BEATRICE ROSENBERG, PATRICIA, R. HARRIS, Attorneys. JANUARY 1961. © @ «.6 GOVERRaERT FPRimiine OFFice 1961 s61087 "Re --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0744%3A3. 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