LEWIS, Circuit Judge.
Appellants-defendants Mingo and Gallegos were indicted and convicted of a
On December 15, 1955, the sheriff of Lincoln County, New Mexico, received an anonymous tip to the effect that three men driving a blue 1955 Ford automobile would soon be through his area and were unlawfully in possession of narcotics. With the active cooperation of the New Mexico State Police, road blocks were established and in a short time a blue 1955 Ford containing three men was stopped. The car was being driven by one Olguin
The trial court admitted all testimony relating to the arrest, search and seizure over defendants' objection that such testimony was incompetent, being founded upon an unlawful search. Such ruling is defendants' first complaint upon appeal.
Federal courts zealously guard the rights of all persons to be free from unlawful search and seizure as prohibited by the Fourth Amendment and upon the slightest showing of direct or indirect participation by federal officers all fruits thereof are rendered inadmissible in federal prosecutions. Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L. Ed. 1819. Nor does it matter that subsequent events show actual justification for the search, for an unlawful search conceived in evil is not baptized in maturity by success. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L. Ed. 520; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Wisniewski v. United States, 6 Cir., 47 F.2d 824; Henderson v. United States, 4 Cir., 12 F.2d 528. And while these rights are basic it is equally fundamental that the protection of the Fourth Amendment does not extend to the activities of state officers and cannot be used to coerce correct conduct upon their part. Evidence unlawfully obtained by such officers, when obtained neither by intent nor custom for use by federal authorities, is admissible in subsequent federal prosecutions. Gilbert v. United States, 10 Cir., 163 F.2d 325. The United States Supreme Court has summarized the doctrine thus: "The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter." Lustig v. United States, supra [338 U.S. 74, 69 S.Ct. 1374].
One further contention of defendants in this regard warrants consideration. Counsel states in his brief that at the time of making objection to the testimony of the New Mexico officers the trial court failed to receive evidence showing "participation by federal officers in instigating the illegal arrest, search and seizure involved". This court in its consideration of this critical contention is tightly bound by the record before us which we set out in its entirety:
Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. provides that a motion to suppress evidence may be entertained by the court in its discretion at the trial although orderly procedure requires the motion to be made earlier. See Braswell v. United States, 10 Cir., 224 F.2d 706. That discretion should be liberally exercised in the furtherance of justice. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L. Ed. 647; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L. R. 409. However, in the absence of anything in this record showing the considerations urged upon the trial court we must and do presume that nothing transpired which would indicate defendants' ability to show any participation by the federal authorities in the search at issue.
Defendants next claim by giving two instructions, one concerning the legal connotation of a conspiracy and the other based upon the statute making possession prima facie evidence of a violation of 21 U.S.C.A. § 174, the trial court committed error since the result was to permit the jury to base an inference on an inference or a presumption on a presumption.
Defendants claim the verdict of the jury was not based upon substantial evidence warranting their conviction. A careful examination of the record leads us to conclude otherwise. Without detailing the government's entire case it is sufficient to point out that, among other matters, it could properly be concluded that Olguin and the defendants had driven together from Denver, Colorado, to Juarez, Mexico, and were returning when apprehended; that the Ford car was borrowed and that operating expenses were being shared; that Olguin was a pusher of narcotics and that the defendants well knew it; that an eye-dropper was picked up at the inception of the trip which contained a small hypodermic needle; that both defendants were users of narcotics; that Mingo received a shot of heroin in El Paso and that both defendants had needle marks on their arms, some of which appeared fresh. The jury chose to reject defendants' contention that the deceased Olguin was the sole wrongdoer and chose instead to conclude that the trip was conceived and taken for the unlawful purpose of obtaining heroin. Proof of a direct statement is not required in order to show the parties were acting in concert. Nye & Nissen v. U. S., 9 Cir., 168 F.2d 846, affirmed 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919.
The judgments and each of them are affirmed.
"Whenever on trial for a violation of this subdivision the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."