362 F.2d 379 (9th Cir. 1966), 20394, Alexander v. United States

Docket Nº:20394.
Citation:362 F.2d 379
Party Name:Ben Edward ALEXANDER, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 07, 1966
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 379

362 F.2d 379 (9th Cir. 1966)

Ben Edward ALEXANDER, Appellant,


UNITED STATES of America, Appellee.

No. 20394.

United States Court of Appeals, Ninth Circuit.

June 7, 1966

Rehearing Denied July 19, 1966.

Page 380

Lawrence Ollason, Tucson, Ariz., for appellant.

WM. P. Copple, U.S. Atty., Jo Ann D. Diamos, Asst. U.S. Atty., Phoenix, Ariz., for appellee.

Before HAMLEY and DUNIWAY, Circuit Judges, and MATHES, Senior District Judge.

MATHES, Senior District Judge.

This appeal is from a judgment and sentence following a jury's verdict of guilty of an indictment charging the receipt and concealment, and facilitation of the transportation and concealment, in the District of Arizona, of a quantity of heroin, in violation of 21 U.S.C. § 174.

The evidence adduced at the trail disclosed that about 8:00 P.M., on August 24, 1964, a Customs Agent stationed at the Mexican border in Nogales, Arizona, observed appellant's accomplice, one Arnold, cross the border into the United States driving a 1961 blue Buick automobile bearing license number FCT-794. Arnold was alone at the time. Acting upon a 'tip' from an informer, the Arnold vehicle was followed by Customs officers and, except for a few minutes when the car was temporarily lost from sight, this surveillance continued until Arnold parked on Morley Avenue in Nogales, Arizona. There Arnold left the car, walked across the street, and sat down in a nearby park.

About 8:30 P.M. that evening, appellant was observed crossing the Mexican border and entering the United States on foot. Appellant registered as a narcotic violator pursuant to 18 U.S.C. § 1407, as he had done upon entering Mexico earlier that day. He was followed by Customs officials from the border to a nearby bus station, and from there to Morley Avenue, where appellant crossed to the east side of the street and walked north. Arnold returned to his car and drove north, passed appellant, made a U-turn, passed appellant a second time, made another U-turn, and then stopped abreast of the appellant. Meanwhile, appellant had crossed back over to the west side of Morley Avenue, and now crossed once more and entered the right front seat of the vehicle.

Thereupon the car turned west on Highway 89, and was followed a short distance and then stopped and searched by Customs officials. Inside a toolbox in the locked trunk of the car, the officers found the heroin in question wrapped in lined tablet paper. Accomplic Arnold pleaded guilty. Appellant pleaded not guilty, and retained counsel who represented him at the trial.

Arnold testified as a witness for the prosecution at appellant's trial, and swore that he and appellant had jointly acquired the heroin in Mexico, where they had gone separately for that purpose; and that they then agreed for Arnold to transport the narcotics across the border in his automobile, and await appellant's arrival at a prearranged place in downtown Nogales, Arizona.

Appellant testified fully in his own defense, swearing in substance that he had no knowledge or possession or control of the heroin, or any interest whatever therein; that he did not know what Arnold had in the car. The jury obviously did not credit the direct evidence of appellant

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over that of Arnold plus the circumstantial evidence.

Upon this appeal appellant is represented by appointed counsel, who first urges as ground for reversal that there was an unreasonable search of the automobile and seizure of the heroin, since the Customs officers lacked a warrant of arrest, as well as probable cause to believe that the vehicle contained unlawfully imported merchandise, or that appellant or Arnold were committing or had committed a felony. It is argued that there was no evidence upon which to predicate probable cause other than the 'tip' given to a Customs Agent by an informant, and that the District Court's failure to require the prosecution to identify or produce the informer at the trial made any statements by the informant unavailable as evidence of probable cause.

But this contention misses the mark. The informer's 'tip' was only as to the identity of the automobile said to be carrying narcotics. There was no information as to the identity of the occupants of the car, other than that they were 'two negro males'. Moreover, the informant gave his information from the Mexican side of the border and at a time before the offense with which appellant was charged could have been committed in the District of Arizona.

Appellant's argument treats this case as the conventional one where probable cause is relied upon to make lawful an arrest without a warrant, and the search and seizure are urged to be 'reasonable', within the meaning of the Fourth Amendment, as an incident to the prior lawful arrest. (See: Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).) However, the question presented in the case at bar is the converse of the conventional. Here the arrest without a warrant is asserted to be law-law as an incident to a...

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