United States v. Kandlis, 24775

• Decision Date: 12 August 1970
• Docket Number: No. 24775,24784 and 25482.,24783,24775
• Citation: 432 F.2d 132
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Ray KANDLIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Julian Joseph ZEBROWSKI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Wilson QUINN, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry Allen SLOCUM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

432 F.2d 132 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Steven Ray KANDLIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Julian Joseph ZEBROWSKI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William Wilson QUINN, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Larry Allen SLOCUM, Defendant-Appellant.

Nos. 24775, 24783, 24784 and 25482.

United States Court of Appeals, Ninth Circuit.

May 28, 1970.

Rehearing Denied August 12, 1970.

Joseph R. Schlozman, Kansas City, Mo. (argued for Steven R. Kandlis), James M. Sakrison, of Lesher, Scrugg, Rucker, Kimble & Lindamood, Tucson, Ariz.; John R. McDonald, of Deconcini & McDonald, Tucson, Ariz. (argued for Julian J. Zebrowski), James M. Sakrison, of Lesher, Scruggs, Rucker, Kimble & Lindamood, Tucson, Ariz. (argued for Wm. W. Quinn, Jr.), Leon Thikoll, of Thikoll & Johnston, Tucson, Ariz. (argued for Larry A. Slocum), for appellants.

James McLeod Wilkes (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Jo Ann D. Diamos, Asst. U. S. Atty., of Tucson, Ariz., for appellee.

Before CHAMBERS, HAMLEY and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

The four appellants were each charged with violations of 21 U.S.C. § 176a and 26 U.S.C. § 4744(a). They were tried before a jury, found guilty on the 21 U.S.C. § 176a charge, and each was sentenced under the Youth Corrections Act. Their common contention is that the trial court erred in failing to suppress evidence that marihuana was found in the car in which they were riding, as the product of an illegal search. We reverse.

Lukeville, Arizona is a tiny town on the Arizona-Mexico border next to the Organ Pipe Cactus National Monument, where state highway No. 85, coming from the north, reaches the border. The nearest town to the north of any size is Ajo, some forty miles away. The nearest Mexican town is Sonoita, two and one-half miles to the south. From there the road runs south and west to Puerto Penasco (also referred to as Rocky Point) on the Gulf of California, 65 miles away. Puerto Penasco is a fishing resort. On weekends a considerable number of vehicles cross the border en route to or from Puerto Penasco. Sonoita is reputed to have a population of 5,000, but the only business there that might attract American students is said to be a house of prostitution. There is a secondary road east from Sonoita to the main highway south and thence to such resorts as Guaymas and Mazatlan.

The permanent population of Lukeville is about 50. On winter or spring weekends, such as March 2, 1969, there are enough trailer campers in the town to more than double the population. There is one commercial building containing, among other things, a bar, and one gasoline service station. Some 60 feet from the border, and across the highway from the commercial building, is the United States border station. On March 2, 1969, there were two United States Customs inspectors and three Immigration inspectors, but no other law enforcement personnel in Lukeville. There is an eight foot cyclone fence at the border, but to the West it extends only a quarter of a mile. From thence West, there is a four strand barbed wire fence. The gate across the highway is locked at midnight.

Six miles to the north, and just off highway 85, is the headquarters of the National Monument. There are camping grounds at the headquarters, and on March 2, 1969, there were five tents and 225 trailers in the campgrounds, with an estimated total population of 568. For March 3, the figures were 1 tent, 203 trailers, and 503 people. From the highway to the campgrounds is about a mile and a half. There are many roads in and out, and they are never closed. Especially on weekends, a certain amount of evening "partying" — drinking beer and singing — goes on in the campgrounds. Hitchhikers are not uncommon along highway 85.

On Sunday, March 2, 1969, one of the appellants, Quinn, drove a car across the border from Mexico at Lukeville, at about 11:45 P.M. The United States border station was manned by Customs Inspector Chauncey Espe. Espe asked Quinn where he was going, and was told that Quinn was returning to Tucson, to the University of Arizona. Quinn did not have the registration papers for the car, which carried California license plates, and said that it belonged to a friend who had met other friends at Sonoita and was continuing on to Mazatlan with them. Espe then asked Quinn to open the car trunk. Quinn did so, and in a cursory search of the trunk Espe found two jackets of different weights, a piece of nylon rope, a pair of heavy boots, and a small packsack. He looked in the packsack, but saw nothing that he could remember.

Espe allowed Quinn to proceed. He locked the border gate at midnight and then called the sheriff's office at Ajo, by radio, and asked that Quinn's car be intercepted and that he be told how many people were in it. Espe noticed that Quinn's car was parked in front of the bar, and walked over and saw that Quinn was seated there alone. Espe returned to his office. He saw Quinn's car drive north at 12:25 A.M., but did not see whether there were other people in it. He radioed the sheriff that the car had left. He attempted no surveillance, because he would have had to do it on his own time and in his own car, which was at his house 100 yards away. He did, however, remain in his office playing solitaire while he awaited a call from the sheriff's office.

At about 2:15 A.M. sheriff's deputy Garchow stopped Quinn on highway 85, approximately 23 miles north of Lukeville. He informed Espe by radio that the car now held four persons. Espe requested that the car and occupants be detained until he arrived. Garchow told the occupants that they would have to wait for Espe and obtained Quinn's driver's license. Between this call and Espe's arrival, another patrol car arrived to support deputy Garchow. Both deputies were armed.

Espe reached the scene at about 2:50 A.M. He asked Quinn to get out of the car and demanded the keys, which Quinn handed to him. Espe also asked Quinn where he had picked up the three men, and was told that it was north of Lukeville. He then asked Quinn to open the trunk. Quinn tried to, but the keys did not fit. Next, Espe asked one of the other men in the car to get out and to open a suitcase that was between his feet. In it Espe found marihuana. All four men were told that they were arrested, and a subsequent search revealed more marihuana.

At oral argument the government properly conceded that the search in question was not a border search and therefore probable cause was needed for the search. See Plazola v. United States, 9 Cir., 1961, 291 F.2d 56, 61.

We need not decide precisely when the arrest occurred. It could have been when deputy sheriff Garchow stopped the car. (See, however, Wilson v. Porter, 9 Cir., 1966, 361 F.2d 412; Jackson v. United States, 9 Cir., 1970, 423 F.2d 506. It could have been when the deputy told the four men that they must wait, or when Espe arrived and demanded the car keys, or when the men were finally told that they were under arrest. Nor need we decide whether a customs agent can stop and search a car without arresting any of its occupants when he has probable cause to believe that it contains contraband. See Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. Here, the arrest and search are inextricably intertwined. The officers could neither arrest nor search without probable cause; if they had probable cause, they could do both. The only question, then, is whether there was probable cause when Espe arrived and at once set about a search. Suspicion, with some grounds to support it, there undoubtedly was. But that is not enough. See United States v. Selby, 9 Cir., 1969, 407 F.2d 241.

If there was probable cause, it had to be based on Espe's knowledge; the sheriff's deputies merely did what he asked them to. Espe testified that there was nothing about the appearance...