Rodriguez-Gonzalez v. United States

• Citation: 378 F.2d 256
• Decision Date: 11 May 1967
• Docket Number: No. 20676.,20676.
• Parties: Calixto RODRIGUEZ-GONZALEZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

378 F.2d 256 (1967)

Calixto RODRIGUEZ-GONZALEZ, Appellant, v. UNITED STATES of America, Appellee.

No. 20676.

United States Court of Appeals Ninth Circuit.

May 11, 1967.

David C. Marcus, Los Angeles, Cal., for appellant.

Edwin L. Miller, Jr., U. S. Atty., Phillip W. Johnson, Asst. U. S. Atty., San Diego, Cal., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and HALBERT, District Judge.

HALBERT, District Judge:

Calixto Rodriguez-Gonzalez appeals from his conviction following a trial by jury on an indictment alleging illegal concealment and transportation of marijuana in violation of Title 21 U.S.C. § 176a. Appellant asserts four errors upon which he seeks reversal of his conviction: (1) the search of the automobile which appellant was driving was illegal and the evidence thus obtained was therefore improperly used at his trial; (2) appellant was deprived of his right to confront the informer whose information led to the discovery of the marijuana; (3) the trial court instructed the jury in an improper manner; and (4) the evidence was insufficient to support the verdict.

The central facts concerning the search of the car driven by appellant are not in dispute. We quote from appellant's brief:

"Acting on information from an informant¹ who supplied three automobile license numbers, that a car bearing one of the numbers would enter the United States at the Mexican border through San Ysidro, a part sic of entry. On June 11, 1965, Customs officers observed a car with one of the license numbers furnished them by the informant enter the United States driven by a male occupant (not the defendant) and a female companion. This car was permitted to pass through the Port and was followed by Customs officers to San Diego, California, where the car was parked on a public parking lot. The driver and woman companion left the vehicle and disappeared. They were never apprehended.

"The following day at approximately 11:00 A.M., the defendant was observed approaching the automobile, look into the car, depart and later return. He drove the car from the parking lot, entered the freeway towards Los Angeles and was stopped by Customs officers several miles from its starting point on the parking lot. A search of the vehicle disclosed marihuana sic in the door panels." (Appellant\'s brief, pp. 20-21.)

The trial judge admitted the marijuana into evidence on the apparent ground that the Customs officers, having received information from a reliable informant, and such information being corroborated by subsequent events observed by the officers, had probable cause to stop and search, without a warrant, the vehicle which they believed contained contraband (See: RT 55:10-13, relying upon Jones v. United States, 326 F.2d 124 (9th Cir. 1963)). We do not reach that issue but affirm on the alternative ground that the search was a valid "border search." The term "border search" has been defined and discussed at length in numerous decisions of this Circuit. (See, e. g. Plazola v. United States, 291 F.2d 56 (9th Cir. 1961); Corngold v. United States, 367 F.2d 1 (9th Cir. 1966) (dissenting opinion); Murgia v. United States, 285 F.2d 14 (9th Cir. 1960); Alexander v. United States, 362 F.2d 379 (9th Cir. 1966)). It is therefore unnecessary to discuss the doctrine at length. It is sufficient for this case to say that a border search is an exception to the general requirement of probable cause which must support a search with or without a warrant. Thus certain officers of the United States (in this case Customs officials) have the authority to stop and search, upon mere suspicion of illegal activity within their jurisdiction, persons and vehicles that cross the international border into the United States. As this Court noted in Alexander v. United States, 362 F.2d 379, at 382 (9th Cir. 1966):

"Accordingly, it is well settled that a search by Customs officials of a vehicle, at the time and place of entering the jurisdiction of the United States, need not be based on probable cause; that `unsupported\' or `mere\' suspicion alone is sufficient to justify such a search for purposes of Customs law enforcement."

Seeking to distinguish the case at bar from the general rule, the appellant points to the fact that the car in which he was arrested was not stopped at the time it crossed the border, but rather some fifteen hours and twenty miles later. Again we quote from Alexander v. United States, supra at 382:

"Where, however, a search for contraband by Customs officers is not made at or in the immediate vicinity of the point of international border crossing, the legality of the search must be tested by a determination whether the totality of the

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