Plazola v. United States

• Citation: 291 F.2d 56
• Decision Date: 04 April 1961
• Docket Number: No. 17132.,17132.
• Parties: Luis Sanchez PLAZOLA, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

291 F.2d 56 (1961)

Luis Sanchez PLAZOLA, Appellant, v. UNITED STATES of America, Appellee.

No. 17132.

United States Court of Appeals Ninth Circuit.

April 4, 1961.

Mary E. Harvey and Harry D. Steward, San Diego, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Los Angeles, Cal., and Paul Hofflund, Asst. U. S. Atty., San Diego, Cal., for appellee.

Before BARNES, JERTBERG and KOELSCH, Circuit Judges.

BARNES, Circuit Judge.

Appellant was charged in Count I with unlawfully importing and bringing into the United States from Mexico fifty-eight pounds of marijuana on January 20, 1960, contrary to Title 21 U.S.C.A. § 176a. Count II charged a violation of the same act on the same date with respect to the same amount of marijuana brought from Mexico by concealing and facilitating transportation thereof. Appellant was sentenced to fifteen years imprisonment on each count, the sentences to run concurrently.

A motion to suppress the fifty-eight pounds of marijuana allegedly illegally obtained as evidence was made and denied below.

Appellant urges five grounds for reversal:

(1) The stopping of his car, his arrest, and the search of his car, were without warrant or probable cause, and hence violative of the Fourth Amendment.

(2) The motion to suppress the fifty-eight pounds of marijuana found in the car of codefendant Singh should have been granted.

(3) The government should have been required to elect between prosecuting appellant for possession and transportation of the one seed of marijuana in his vehicle (a Dodge) or the fifty-eight pounds of marijuana found in Singh's vehicle (a Mercury).

(4) Appellant was prejudiced by the court's calling of codefendants as the court's witnesses, and by the court's reading of the codefendant Singh's presentence report out of defendant's presence.

(5) The court erred in admitting hearsay testimony of a customs officer.

Appellant's car was stopped by two United States Customs Agents some fifty or sixty miles north of the Mexican border, at 11:30 A.M. on January 20, 1960, after it had crossed the border at Calexico, California, about 9:30 A.M. on that same day,¹ and had been followed by customs agents to the point where it was stopped.

Appellant had no record of any conviction, either for a narcotics offense or otherwise. He had been stopped and searched many times at the border, but never had any narcotics or other prohibited articles been found on his person or in his vehicle.

The Customs Service received information appellant had been hiring other persons to smuggle marijuana into the United States from Mexico. The source, authenticity and reliability of this information was not gone into by the government at the trial. Appellant had "been under investigation by the Customs Agency Service since March 1959." On the day in question, no specific or general information had come to the Customs Service with respect to appellant's recent activities in Mexico. The arresting officer "had received no prior information with respect to this particular transaction" with which appellant was here charged. Was this "probable cause," i. e., "a reasonable ground for belief of guilt"? Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 288, 69 L.Ed. 543; Rodgers v. United States, 9 Cir., 1959, 267 F.2d 79.

Alleged unusual behavior in the operation of appellant's auto was a second factor urged by the government as sufficient to constitute reasonable grounds for stopping of appellant's vehicle, and the arrest of appellant. The unusual behavior was: (a) that appellant twice reversed his direction of travel after entering the United States, making two consecutive U-turns; (b) that codefendant Singh's car passed Agent Scott (who was following appellant's car) at a high speed; (c) Singh's car slowed down behind appellant's car; (d) Singh's car moved to a passing position alongside appellant's vehicle for about ten seconds; (e) Singh then dropped behind appellant's vehicle, and (f) followed appellant's vehicle into Brawley (about five miles) at a reduced speed; (g) appellant's car stopped in Brawley, the other car slowed; (h) appellant's Dodge thereafter caught up with the Mercury (Singh's car), and (i) they proceeded together further north on Highway 99. When they were severally stopped, the two cars were about two miles apart.

Appellee concedes that the arrest was made without a warrant by three agents (Hann, Ellis and Scott) of the United States Customs Service. Their power to arrest, at least since 1956, arises from 26 U.S.C. § 7607, which provides in part:

"* * * officers of the customs * * * may * * * make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * or marijuana * * * where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation."

It is conceded that here there was no warrant obtained for the appellant's arrest. It is undisputed no violation of law relating to narcotic drugs was taking place in the presence of the officers when appellant's vehicle was stopped. The government thus must rely on probable cause, i. e., that its agents, the customs officers, had reasonable grounds to believe the appellant had committed or was committing a violation of the narcotics laws. "The burden of making such a showing is upon the government." Cervantes v. United States, 9 Cir., 1960, 278 F.2d 350, 351, citing Wrightson v. United States, 95 U.S.App.D.C. 390, 222 F.2d 556.

While there undoubtedly was in the minds of the customs officers a general belief that appellant had in the past smuggled marijuana into the United States largely through the use of confederates rather than carrying it personally, or within his own vehicles or on his person, we do not believe such a general belief as to past actions, unrelated to present conduct, or additional reliable information, would constitute more than suspicion that the suspect was likely to do it again. If we were to interpret the statute as the government suggests, once a general belief had been established in the minds of a customs officer that a suspect had in the past violated a narcotics law and might be doing it again, then that suspect could always in the future be arrested, irrespective of any then present act or violation of law, without the necessity of a warrant ever being obtained; no matter how, when, or where the arrest might take place, and irrespective of any conduct then observed, or any information — confidential or otherwise — that the narcotics laws were then being violated. Had this been intended, the Congress might better have merely enunciated the rule: "A customs officer needs no warrant — he may arrest anywhere at any time any person whom he reasonably believes at some time in the past has violated the narcotics laws, and might do it again." We do not believe such an interpretation or result was envisaged by the Congress. We reject any such theory as being contrary to the purpose of the provisions of the Fourth Amendment.

We then must consider, if we do not read the belief of a past violation as good cause for a present belief, whether there existed reasonable grounds for good faith belief that appellant was then violating the narcotic drugs act. And the word "then" emphasizes the importance, in addition to the necessary "how" of a violation, of the time and place of any arrest. The "where" is undisputed — fifty to sixty miles north of the border. The "when" in point of time was at least two hours after the border crossing. The precise time awaits a determination of whether the arrest took place (a) when the appellant's car was first stopped, or (b) after the customs officers left the scene where appellant's Dodge was stopped (requiring the appellant to accompany them two miles, in the officers' car, to where Singh's Mercury had been stopped); or after all had returned together to the site of the original stopping after a search of Singh's car revealed the marijuana, or after Singh had allegedly implicated appellant as the "owner" of the marijuana. It was only then that the government concedes that "a formal arrest" took place. We are not certain exactly what "a formal arrest" means. Appellant contends he was under arrest as of the time the government vehicle sounded its siren and stopped appellant's vehicle.

Whether we agree with appellant's precise position (that his arrest was consummated when he was stopped) need not now be determined.

As it was stated by the Supreme Court in Henry v. United States, 1959, 361 U.S. 98, at pages 103-104, 80 S.Ct. 168, at page 171, 4 L.Ed.2d 134:

"When the officers interrupted the two men and restricted their liberty of movement, the arrest, for the purposes of this case, was complete. It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a crime had been committed. The fact that afterwards contraband was discovered is not enough.

* * * * * *

"What transpired at or after the time the car was stopped by the officers is, as we have said, irrelevant to the narrow issue before us. To repeat, an arrest is not justified by what the subsequent search discloses. Under our system suspicion is not enough for an officer to lay hands on a citizen."

There may be a difference between the extent of the authority of a customs officer to stop a car at the border as a necessary part of a customs search, and the ordinary power of a peace officer to stop and search, but we think there can be no difference under either factual circumstance as to when an arrest takes place.

Again, we concede there may be a difference of opinion as to whether an arrest takes place when a siren is sounded, or at the instant a car is stopped, or not until there exists a restraint on the individual's liberty of...