409 F2d 1351 Lopez v. United States

409 F.2d 1351

Manuel Leyva LOPEZ, Appellant,
UNITED STATES of America, Appellee.

No. 22570.

United States Court of Appeals Ninth Circuit.

April 10, 1969.

Thomas O. Gillis (argued), San Jose, Cal., for appellant.

Dennis Kinnaird (argued), Asst. U.S. Atty., Wm. Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Crim. Div., Arnold G. Regardie, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before HAMLIN, BROWNING, and CARTER, Circuit Judges.


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Appellant was convicted of illegal importation and sale of heroin in violation of 21 U.S.C. 174 and 26 U.S.C. 4705(a). The principal evidence against him was the testimony of an agent of the Federal Bureau of Narcotics who by means of a 'non-magnetic, non-electronic extension device' attached to a telephone receiver at the Bureau headquarters overheard a conversation between appellant and an informer during which arrangements were made to purchase the heroin. Appellant contends this evidence was secured in violation of his Fourth Amendment rights, relying exclusively upon Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The Supreme Court has held, however, 'that Katz is to be applied only to cases in which the prosecution seeks to introduce the fruits of electronic surveillance conducted after December 18, 1967.' Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). Since the eavesdropping of which appellant complains occurred prior to that date, Katz is not available to appellant, even if its rpinciples would otherwise be applicable to the facts presented here.