United States v. Weil

• Decision Date: 08 October 1970
• Docket Number: No. 25594.,25594.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael David Jose WEIL, aka Michael James Gideon, and Stephen Eugene Looper, aka Stephen Lyme, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

432 F.2d 1320 (1970)

UNITED STATES of America, Plaintiff-Appellant, v. Michael David Jose WEIL, aka Michael James Gideon, and Stephen Eugene Looper, aka Stephen Lyme, Defendants-Appellees.

No. 25594.

United States Court of Appeals, Ninth Circuit.

October 8, 1970.

Ann Bowen (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Tucson, Ariz., Ronald J. Blask, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Frank E. G. Weil (argued), Atty., Washington, D. C., for defendants-appellees.

Before DUNIWAY and CARTER, Circuit Judges, and SWEIGERT,^* District Judge.

DUNIWAY, Circuit Judge:

The United States appeals, under 18 U.S.C. § 3731, as amended by Pub.L. 90-351 of June 19, 1968, 82 Stat. 197, 237-38, from an order granting a motion to suppress evidence. The United States Attorney has certified that the appeal is not taken for the purpose of delay and that the evidence is a substantial proof of the charge pending against the appellees (defendants). We reverse.

The evidence suppressed is certain marihuana concentrate and certain drugs that were found in suitcases in the trunk of a car driven by appellee Looper and in which appellee Weil was a passenger. The search occurred on Arizona State Highway 85, two and one-half miles north of Lukeville, Arizona.

We have recently had occasion to consider another case involving a car that crossed the border at Lukeville. United States v. Kandlis et al., 9 Cir., 1970, 432 F.2d 132. We there described in some detail the town of Lukeville, the surrounding area, the roads, the border and other features of the area. We do not repeat that description here, but we add a little to it. Highway 85 is the only road north from Lukeville. About one mile north from the border, a graded road called Puerto Blanco Drive takes off from Highway 85. It runs west, more or less along the border — at some places as close to it as 20 feet. It does not lead to another town. After about 13 miles, it forks, the left fork continuing westerly to the boundary line of a federal game reserve, the right fork looping around to the north and going ultimately to the headquarters of Organ Pipe Cactus National Monument, a distance of about 51 miles. The Park Service recommends half a day for this scenic loop trip.

The events leading up to the search and seizure were these. At about 1:00 P.M. on August 19, 1969, Looper drove a Plymouth car into the United States from Mexico at Lukeville. Customs Agent Corley found in the trunk one small suitcase and a knapsack, but no contraband. There was a motel key for a motel in Sonora. Looper had a Virginia driver's license in the name of Lyme. The car had been rented at Tucson at 8:00 P.M. on August 18, also in the name of Lyme, but by the use of another person's credit card. Looper said the credit card belonged to a friend in New Jersey. Looper was vague about what he was doing in the area; he said that he was a photographer, but had no photographic equipment with him. The temperature was 108°, and there were very few sightseers in the area. Corley knew that a modus operandi of narcotic smugglers was to "fly from distant points to Tucson, Phoenix;¹ rent a car, drive to Mexico, drive around the area. Later they will make contact, pick up the stuff."

At about 6:10 P.M. on the same day, Corley was at home, some five and one-half miles north of the border, and received a radio message that the Plymouth car had again crossed the border from Mexico. He drove south on Highway 85, but did not see the car. At the border, he was told by Immigration Inspector Walker that the car had crossed with one occupant, the driver, a tall Caucasian person, and that it contained two small pieces of luggage. Corley then drove to the area of Puerto Blanco Drive and waited. In a short time, at about 7:00 P.M., he saw the Plymouth come out of Puerto Blanco Drive and turn north on Highway 85. There were two people in the vehicle. Corley followed it; he also asked, by radio, to have Park Ranger Begeman come to his assistance, which Begeman did. Corley stopped the Plymouth about a mile and a half north of Puerto Blanco Drive. He did so because he "felt that they had picked up something on Puerto Blanco Drive and one person had illegally entered the United States." He asked both persons for identification, which they showed him. He also asked the passenger (Weil) where and when he entered the United States, but got no answer. He asked them to open the car trunk, which was done. He detected a strong odor of marihuana. The trunk contained the two small pieces of luggage that Corley had seen before, and two large tan leather suitcases. A search of those suitcases by Corley and Begeman revealed the contraband concealed beneath false bottoms.

In Kandlis, supra, the government made no claim that the search there involved was a border search; it relied upon a claim that there was probable cause for the arrest and search. We held that, under the facts that there appeared, there was not probable cause. In the present case, the government disclaims reliance upon probable cause; it claims that the search was a "border search," so that probable cause was not required.

If we take the term "border search" literally, this was not a border search. It did not occur at the border, and the car had already been searched there. Moreover, when the car crossed the border, it contained no contraband. We assume that it was because of these facts that the trial judge held that the search was not a border search and granted the motion to suppress. There is no doubt that the language of some of our decisions supports this result. For example, in cases in which we have upheld a search as a border search, we have emphasized that under the facts it was reasonably clear, by reason of continuous surveillance, that whatever was in the car when it was searched was also in it when it crossed the border. See, e. g., King v. United States, 9 Cir 1965, 348 F.2d 814; Leeks v. United States, 9 Cir., 1966, 356 F.2d 470; Alexander v. United States, 9 Cir., 1966, 362 F.2d 379; Rodriguez-Gonzalez v. United States, 9 Cir., 1967, 378 F.2d 256; Bloomer v. United States, 9 Cir., 1969, 409 F.2d 869; Castillo-Garcia v. United States, 9 Cir., 1970, 424 F.2d 482. Yet even in such cases, we have not required certainty. Thus in Alexander, supra, and Castillo-Garcia, supra, there had been a break in the surveillance, but the search was upheld, because it appeared, "with reasonable certainty," (362 F.2d at 382) that the contraband had been in the vehicle when it crossed the border. The language of the opinions in these cases must be considered in the light of the facts to which it relates. In each case, the government claimed that the facts showed that...