United States v. Phillips, 73-1230.

• Citation: 496 F.2d 1395
• Decision Date: 15 July 1974
• Docket Number: No. 73-1230.,73-1230.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert PHILLIPS and William Arnold Tolbert, Jr., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

496 F.2d 1395 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Robert PHILLIPS and William Arnold Tolbert, Jr., Defendants-Appellants.

No. 73-1230.

United States Court of Appeals, Fifth Circuit.

July 15, 1974.

Philip A. Gillis, Detroit, Mich., for defendants-appellants.

Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before WISDOM, GODBOLD and INGRAHAM, Circuit Judges.

GODBOLD, Circuit Judge:

The appellants were convicted in a nonjury trial for possession of 230 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The contraband was discovered on May 5, 1972, in the locked trunk of an automobile rented and driven by Phillips and in which Tolbert was a passenger, and as a result of an immigration search conducted by border patrol officers at a highway checkpoint.

We know these facts about the search in question. The checkpoint was located approximately 11 miles north of Laredo, Texas, (approximately 9 miles north of the city limits), on highway 35, the main highway from Laredo north to San Antonio. As the crow flies the point was three and a half to four miles from the Rio Grande River, the international boundary. It may fairly be inferred from overall consideration of this and other cases,¹ that the government employs a checkpoint with at least some degree of regularity a few miles north of Laredo on the main highway to San Antonio.

The location at which Phillips and Tolbert were stopped was divided into primary and secondary search areas. At around 8:00 a. m. the officers on duty were conducting what they termed a "blitz," checking for illegal aliens by stopping every vehicle that came through and opening the trunk of some or all.² They referred to this time of day as the "changeover period" (the appellation was unexplained), and there was testimony that this was a time when many vehicles were coming through and "we have had occasion to have other people try to bring aliens through the checkpoint at the changeover time." Officers were working in shifts, and the 8:00 a. m. to 4:00 p. m. shift was on duty, comprising at least three officers. Stop signs were up to stop vehicles.

A search of automobiles for aliens under the circumstances of this case is valid. See United States v. De-Leon, 462 F.2d 170 (CA5, 1972), cert. denied, 414 U.S. 853, 94 S.Ct. 76, 38 L. Ed.2d 102 (1973); United States v. McDaniel, 463 F.2d 129 (CA5, 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973).³ Once the search in the present case was begun, it was legitimate for the officers to look wherever there was room for an alien to hide, and to seize evidence of other crimes if it was in plain view. See United States v. McDaniel, supra. Thus the District Court did not err in denying appellants' motion to suppress the marijuana found in the trunk of the rented car.

We turn to the sufficiency of the evidence to establish that Tolbert knowingly possessed the marijuana.⁴ Both the possession and the knowledge of possession can be proved by circumstantial evidence, e. g., Montoya v. United States, 402 F.2d 847 (CA5, 1968), and possession may be actual or constructive but in any event there must be dominion and control over the item or a power to exercise dominion and control. There are numerous caveats that go along with cases of circumstantial evidence of knowing possession. No term is more ambiguous in common speech and in legal terminology than the word "possession," especially when it occurs in criminal statutory provisions, and "it is so fraught with danger that the courts must scrutinize its use with all diligence." Guevera v. United States, 242 F.2d 745 at 747 (CA5, 1957). "It is easy to get the eye off the target in a case like this, to focus so precisely on the inviting bullseye of the defendant's failure to give a credible explanation of why he was on the scene and what he was doing, that the requirement of possession never gets under the gunsight, and as a consequence the defendant is subjected to the critical inferences here, the critical consequences of possession not because he is a non-explaining possessor but because he is an incredible non-possessor who is where the action is." Fitzpatrick v. United States, 410 F.2d 513 at 515-516 (CA5, 1969). The line between knowing possession and guilt by association can be very thin. Proof of mere proximity to contraband is not sufficient to establish actual constructive possession or the element of knowledge. United States v. Canada, 459 F.2d 687 (CA5, 1972).

Mindful of these commands that we proceed with caution,⁵ we conclude that there was sufficient evidence to support a finding of knowing possession by Tolbert. There was evidence which the court was entitled to credit, to the following effect. Phillips and Tolbert had flown together from Detroit to Texas, and they had come together to Texas on this and prior occasions and had traveled about the state together. Phillips had rented the car at Harlingen, Texas, at which time the agent delivered to him an ignition key and a trunk key. There is no evidence that Tolbert ever had a trunk key in his possession, but he was at the rental agency with Phillips when the car was rented. The two men stayed the night together in a motel. There were four or more large suitcases in the trunk, only one small suitcase inside the car. When the car was serviced by the rental agency before delivery only the spare tire was in the trunk. When told by the officers that they were checking for aliens, Tolbert inquired whether they were searching for drugs. The quantity of contraband was large, the packages numerous and sizeable, and some of them were loose in the trunk. At least one package, about 15" x 10" x 4", was removed by an agent, and at least one of the agents observed through the plastic covering leaves, stems and seeds. An agent felt one of the packages and could feel vegetable matter within. As soon as access was obtained to the trunk, there was in the rear seat area a heavy smell of mothballs, whose odor is often used to mask the scent of marijuana, and there were moth flakes on the exterior of at least some of the packages.

Both appellants denied the existence of a trunk key. Before entering the trunk the agents attempted to secure a key from the rental firm owning the car, which entailed a delay of about 10 minutes. During this interim they talked separately to Tolbert and Phillips who gave conflicting explanations for their presence in the area. Tolbert stated he was in Texas because of family trouble, while Phillips said the two of them were there for business reasons.⁶

Under all of these circumstances the court could conclude that both Phillips and Tolbert had knowing possession of the marijuana.

The cases relied upon by Tolbert do not require a different result. In Montoya v. United States, 402 F.2d 847 (CA5, 1968), appellant Montoya was a passenger in the front seat of a pickup truck owned by a third person but driven by his brother-in-law. It had on the back an enclosed homemade camper with a door but without windows. Within was 539 pounds of marijuana in 25 large cloth sacks, inside of which were small plastic bags each containing a paper package of marijuana. On appeal we concluded that the jury must have totally rejected Montoya's incredible story of the events leading up to the arrest. This being so, there was no evidence of a joint undertaking other than Montoya's presence in the vehicle as a passenger. Nor was there any evidence, other than Montoya's presence, that he had any reason to enter the enclosed portion of the truck or any nexus to it or any reason to be aware of the presence of the sacks, or, if he was aware of them, any knowledge of their contents. In a later case of marijuana in a car trunk we sustained the conviction of the passenger and distinguished Montoya because of evidence, from a statement made by the passenger, that he was aware of the presence of the contraband. United States v. Canada, supra. United States v. Lowry, 456 F.2d 341 (CA5, 1972), also relied upon by appellants, is another case in which there was no basis for belief that the defendant either saw or knew of the existence of contraband in the vehicle. In Cuthbert v. United States, 278 F.2d 220 (CA5, 1960) the defendants were on a lengthy trip together, and five pounds of marijuana was purchased by one defendant (an addict) at a time the other defendants were not present and subsequently was found in his baggage. We reversed...