United States of America, Appellant, v. Edward Ellsworth Wilson, Appellee, 392 F.2d 979 (9th Cir. 1968)

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US Court of Appeals for the Ninth Circuit - 392 F.2d 979 (9th Cir. 1968) May 2, 1968

Appeal from the United States District Court for the Southern District of California; Fred Kunzel, Judge.

Joseph A. Milchen (argued), Asst. U. S. Atty., Edward L. Miller, Jr., U. S. Atty., San Diego, Cal., for appellant.

John Hart Ely (argued), San Diego, Cal., for appellee.

Before BARNES and ELY, Circuit Judges, and SMITH,*  District Judge.

PER CURIAM:


This is an appeal by the government from an order made by the district court under Rule 41(e) and 57(b), Fed. R. Crim. P., after a hearing which suppressed certain physical evidence, i. e., marijuana. Appellee had been indicted for a violation of 21 U.S.C. § 176a, and had pleaded not guilty. Jurisdiction here rests on 18 U.S.C. § 1404 and 28 U.S.C. § 1294.

An appeal from another portion of the district court order was neither waived nor urged by the government, on oral argument. We consider it moot.

On the authority of Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), the order of suppression is affirmed.

BARNES, Circuit Judge (dissenting).

I respectfully dissent for the following reasons:

(a) Those set forth in my dissent in Corngold v. United States, 367 F.2d 1 (9th Cir. 1966);

(b) the facts herein show this was not a search by federal officers, but one undertaken and initiated solely by air line employees, in which government agents later participated to a limited, unsubstantial, and minor, degree. I conclude it was in truth a private search, and in no sense a government search;

(c) the facts in this case more closely resemble those held controlling in Gold v. United States, 378 F.2d 588 (9th Cir. 1967), than they do those found in Corngold v. United States, supra.

 *

Hon. Russell E. Smith, United States District Judge, District of Montana, sitting by designation