Duprez v. United States, 25756.

Decision Date10 December 1970
Docket NumberNo. 25756.,25756.
Citation435 F.2d 1276
PartiesGene DUPREZ, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

George H. Chula, Santa Ana, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., Shelby R. Gott, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before BARNES and KOELSCH, Circuit Judges, and BYRNE,* District Judge.

BYRNE, District Judge:

On March 26, 1969, at approximately 2:30 A.M., Cecil G. Sargent, Jr., an immigration patrol inspector for the United States Immigration and Naturalization Service, was on duty at his checkpoint station located on Highway 395, sixty-seven to seventy-seven miles from the Mexican border. As a border patrolman it was the duty of Sargent to determine alienage or citizenship of persons suspected of being in the United States illegally. Also, as is true of all such patrolmen, it was Sargent's duty as a deputy customs inspector, to curb any violations of the narcotic laws of the United States which might come under his observation.

At this time, a motor vehicle approached the well lighted inspection station. It first appeared to slow down; then as it came closer to the station, its speed increased to thirty-five to forty miles per hour and it proceeded through the checkpoint. The vehicle was identified by Sargent as a brown pickup truck with a camper.

After the truck had been driven through the checkpoint, Sargent and his partner, Howard Dobbs, who at this point had been sitting in the "chase vehicle," pursued the fleeing truck. The two officers followed the vehicle for approximately four miles. Both vehicles went off the road and came to a stop. During the chase, the driver of the truck took evasive action by repeatedly swerving from one lane to the other, and also ignored the flashing red light and blaring siren of the pursuing vehicle.

When the camper had been driven through the checkpoint, Sargent was able to observe the driver and a passenger. The lighting at the checkpoint was such that Sargent was able to see the driver clearly. According to the testimony of the border patrolman, the driver had long hair, a full beard, a ring on his left finger, and wore a brown knitted watch cap and a blue-gray jacket. Sargent was unable to see the passenger with any clarity.

Immediately after the two vehicles came to a stop, the driver left the truck, ignored the officers' orders to halt, and fled into the night. When the driver escaped, he crossed directly into the lights of the chase vehicle. Sargent testified that he wore white pants and a bluishgray jacket. The officer testified the driver was approximately six feet tall and weighed 170 to 180 pounds.

As the passenger alighted from the camper, she kicked a grocery bag to the ground. As a result of the kick, "a clear plastic bag * * * and a partially used brick of marijuana" fell out of the bag. The passenger later identified as Cheryl Fleming, the appellant's co-defendant, was placed under arrest and put in the patrol car. The officers then returned to the fallen packages and searched the vehicle where they discovered an additional fifteen packages of marijuana.

At about noon, the same day, Sargent was notified that the Elsinore Police Department was holding a suspect who fit the description of the driver who had driven through his checkpoint that morning. Sargent identified the suspect, now the appellant, as the driver of the camper, and he was delivered to the Federal authorities.

The Federal Grand Jury for the Southern District of California returned a one-count indictment charging the appellant and Cheryl Fleming with intent to defraud the United States by knowingly concealing and facilitating the concealment of forty-six pounds...

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18 cases
  • United States v. Almeida-Sanchez
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 3, 1972
    ...for concealed aliens within a hundred air miles from any external boundary without a showing of probable cause. Duprez v. United States (9 Cir. 1970) 435 F.2d 1276; Fumagalli v. United States (9 Cir. 1970) 429 F.2d 1011; Miranda v. United States (9 Cir. 1970) 426 F.2d 283. A stop and search......
  • U.S. v. Peltier
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 9, 1974
    ...a roving-patrol search so long as it was conducted within the 100-mile area defined in 8 C.F.R. 287.1. See, e.g., Duprez v. United States, 435 F.2d 1276, 1277 (9th Cir. 1970); Fumagalli v. United States, 429 F.2d 1011, 1013 (9th Cir. 1970); United States v. Elder, 425 F.2d 1002, 1004 (9th C......
  • U.S. v. Bowen
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 9, 1974
    ...United States v. Aranda, 457 F.2d 761 (9th Cir. 1972); Mienke v. United States, 452 F.2d 1076 (9th Cir. 1971); Duprez prez v. United States, 435 F.2d 1276 (9th Cir. 1970); Fumagalli v. United States, 429 F.2d 1011 (9th Cir. 1970); United States v. Avey, 428 F.2d 1159 (9th Cir.), cert. denie......
  • U.S. v. Brennan
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 13, 1976
    ...124, 131 (9th Cir. 1963), cert. denied, 377 U.S. 956, 84 S.Ct. 1635, 12 L.Ed.2d 499 (1964) (concurring opinion) with Duprez v. United States, 435 F.2d 1276 (9th Cir. 1970) (stop of pickup justified under 8 U.S.C. § 1357, but "no one . . . claiming this is a border search"); United States v.......
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