386 F.2d 1 (5th Cir. 1967), 24158, Bailey v. United States

Docket Nº:24158.
Citation:386 F.2d 1
Party Name:La Verl BAILEY and Charles R. SMITH, Appellants, v. UNITED STATES of America, Appellee.
Case Date:December 01, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1

386 F.2d 1 (5th Cir. 1967)

La Verl BAILEY and Charles R. SMITH, Appellants,

v.

UNITED STATES of America, Appellee.

No. 24158.

United States Court of Appeals, Fifth Circuit.

December 1, 1967

Page 2

Royce R. Till, Houston, Tex., for appellants.

James R. Gough, Asst. U.S. Atty., Houston, Tex., Morton L. Susman, U.S. Atty., Ronald J. Blask and Thomas C. McClellan, Asst. U.S. Attys., for appellee.

Before HUTCHESON, WISDOM and GOLDBERG, Circuit Judges.

HUTCHESON, Circuit Judge:

We are again faced with determining the constitutional validity of a seizure of illegally imported narcotics. The District Court denied appellants' motion to suppress heroin and paraphernalia seized from them by United States Customs Officers. Rule 41(e), F.R.Crim.P. Their trial was to a jury, and appellants were convicted of violating the federal prohibitions against concealing and transporting illegally imported narcotics and purchasing narcotics not from the original stamped package. 21 U.S.C. Sec. 174; 26 U.S.C. Sec. 4704. In addition to contesting the legality of their search, appellants assign as error the trial court's refusal to charge the jury on the issue of criminal responsibility, a defense they claim was presented by evidence of their addiction to narcotics. Finding no error in either ruling, we affirm.

On September 27, 1965, Customs Agent Galanos, at Falcon Dam on the Texas-Mexican border, received a telephone call from an Agent in Houston. Galanos was informed that appellant Bailey and another man were leaving Houston in a white 1958 Pontiac with a specified license number, traveling to Roma, Texas, to obtain heroin. Galanos was advised that this information had been relayed by an officer of the Houston Police Department, but the original source was not revealed.

Galanos and three other officers set up surveillance of the highway through Roma. The vehicle they had been warned to expect was identified entering Roma at 9:30 P.M. It passed through town and continued west for a distance of 20-30 miles to a road known as the Chihuahua Ranch cut-off. At this point, the officers observed the car turn and proceed back toward Roma, make several U-turns and changes of speed, and turn south on Fronton Road, about three-fourths mile west of town. The vehicle was lost to the view of the surveilling officers until it returned to the highway ten minutes later. Agent Galanos testified that Fronton Road, which runs directly into the Rio Grande River, is known to be a crossing-point frequently used in the illegal trafficking of narcotics. Upon returning to the highway, the vehicle again headed west away from Roma, stopped briefly at a roadside park, and turned north on the Chihuahua ranch road where it stopped once more for about one-half hour. It then proceeded north, toward Houston. Throughout this period the officers had maintained surveillance, and at 2:30 A.M. they converged upon the vehicle as it was stopped again on the shoulder of the highway. Both appellants were standing beside the car, and Agent Galanos observed Bailey holding white papers of the type used to package heroin. Bailey dropped the papers as the officers approached. Also found in the area were three burnt matches, a pocket knife, a bottle of water, a burnt spoon, and a hypodermic needle, all equipment used to prepare and inject heroin. The papers and spoon were later found to have traces of heroin attached. The heroin and implements along with a bloody handkerchief and a needle cleaner found on the persons or in the automobile of...

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