U.S. v. Bergera

Citation512 F.2d 391
Decision Date21 January 1975
Docket NumberNos. 72-2913 and 72-3049,s. 72-2913 and 72-3049
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Nick Victor BERGERA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Lynn MITCHELL, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Frank R. Ubhaus, Asst. Federal Public Defender (argued), San Francisco, Cal., for defendants-appellants.

James Hazard, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.

Before CHAMBERS and ELY, Circuit Judges, and MURRAY, * District Judge.

OPINION

WILLIAM D. MURRAY, District Judge:

On November 10, 1971, a Volkswagen bus, imported from Rotterdam, Holland, was unladen at Pier 9, San Francisco, California. The bus was given a routine Customs examination with the aid of a dog trained to detect marijuana. The dog indicated that marijuana was concealed behind the right and left rear quarter panels. The substance was analyzed and found to be marijuana.

The bus was kept under continuous surveillance by Customs officers from November 10 through November 18, 1971.

On November 12, 1971, at approximately 4:20 P.M. the bus was picked up by a Kymry Simonds at Pier 9. Kymry Simonds drove the bus to the middle of the 200 block of Miller Avenue, Mill Valley, California, where she parked the vehicle. On November 18, 1971, at approximately 3:35 A.M., a Volkswagen bus bearing California license 464 BPW parked behind the Volkswagen bus containing the marijuana. This bus had two occupants, later identified as Nick Bergera and David Lynn Mitchell, registered owner of the Volkswagen bus bearing California license 464 BPW.

At approximately 3:50 A.M. a tow truck arrived and towed the Volkswagen bus containing the marijuana to 34 Rice Street, Daly City, California, where it was placed in the garage.

The officers waited about 25 minutes after the bus had been placed in the garage and then approached the front of the residence. The defendants came out of the house and were arrested on the steps. Two agents entered the residence by force. Inside the residence, the agents found and arrested Cheryl Bergera. Once in the house, the agents found three marijuana plants in a rear bedroom closet, a brown paper bag in a hallway closet containing approximately one kilo of marijuana and two 5 X 8 boxes in the kitchen that contained marijuana seeds, stems and residue. The Volkswagen bus containing the marijuana was found in the garage. The agents did not have a search warrant for the residence nor did they have anyone's consent to search the house or garage. They had no arrest warrants.

Mitchell and Nick Bergera were indicted for the knowing possession with intent to distribute marijuana in hashish form. Appellants filed a motion to suppress evidence. Hearings on the motion were held before a United States Magistrate. The magistrate recommended that the motion to suppress be granted as to hashish found in the Volkswagen bus in the garage and as to marijuana found in the bedroom, closets and kitchen of the residence. On February 17, 1972, the government filed a request for review of the magistrate's decision by the district court judge and the case was certified to the district judge. The judge entered an order reversing the magistrate and denying the motion to suppress. Appellants were found guilty as charged on April 21, 1972.

On Appeal, Bergera and Mitchell contend that (1) the trial court erred in setting aside the magistrate's findings on the motion to suppress without taking additional evidence, and (2) the district court erred in failing to grant a mistrial when it became apparent that the government could not justify the seizure of small amounts of marijuana about which substantial testimony had been introduced.

Appellants' first contention presents an important issue not previously considered by this court. In a recent decision, we held that a United States Magistrate may hold evidentiary hearings on a motion to suppress; however, the reports of the magistrate represent recommendations only, since the district court must make the final adjudication on the motion. Campbell v. United States District Court for the Northern District of California, 501 F.2d 196 (9th Cir. 1974). Campbell did not consider the question now before the court: whether the district court can enter an order inconsistent with the recommendations of the magistrate without itself hearing the evidence on the motion to suppress. We hold that it cannot and reverse the convictions.

Before making his recommendations to the district court on the motion to suppress, the magistrate has listened to each side present arguments, has seen the expressions and demeanor of witnesses, and has directed the course of the hearing. This experience places the magistrate in the best position to rationally determine the facts underlying the motion to suppress. The district court should not lightly disregard recommendations made from first-hand knowledge of relevant evidence. However, since the magistrate may only make recommendations, a question must inevitably arise with regard to what procedures must be adopted by the district court when it chooses to disregard the recommendations of the magistrate. Two alternatives immediately present themselves: (1) the district court can reject the recommendations of the magistrate and adjudicate the motion on the basis of records provided, or (2) the court can order that the motion to suppress be reheard and the evidence presented directly to it.

The crucial question to be considered when making a choice between these two alternatives is which of the two provides the strongest guarantee for the integrity and accuracy of the fact-finding process.

The ultimate result in many cases like the one presented here is determined by a ruling on a motion to suppress evidence. Since that ruling in turn is often dictated by a factual determination, the method used to ascertain facts must be as accurate as possible. Rules of law affecting the trustworthiness of the fact-finding process should be forged with these considerations well in mind. In Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), the United States Supreme Court recognized the important role procedures for determining facts can have in the ultimate outcome of litigation:

"To experienced lawyers it is commonplace that the outcome of a lawsuit-and hence the vindication of legal rights-depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied." Speiser, supra at 520, 78 S.Ct. at 1339.

Requiring the district court to rehear the evidence if it decides not to follow the recommendations of the magistrate insures that any decision on the facts will be the result of first-hand observation of witnesses and evidence. The law has long recognized the value of these more immediate impressions, and gives them a measure of protection from easy modifications made on the basis of dry records. See 52(a) and 53(e)(2) of the Federal Rules of Civil Procedure and 8(d) of the Magistrate's Rules. A rule of law permitting the district judge to assign evidentiary hearings to a magistrate, and then disregard the recommendation of the magistrate without hearing any testimony or seeing any evidence, would fly in the face of traditional legal respect for findings of fact made on the basis of full participation in the methods recognized as most effective for determining facts. When the vindication of important legal rights necessarily hangs in the balance, the...

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32 cases
  • U.S. v. Whitmire, 77-5359
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 4 Junio 1979
    ...to a magistrate's recommendation on a referred evidentiary matter without itself holding an evidentiary hearing. United States v. Bergera, 512 F.2d 391 (9th Cir. 1975). Appellants would have us not only espouse that position but extend it to hold that a district court cannot even Adopt a ma......
  • Mildner v. Gulotta
    • United States
    • U.S. District Court — Eastern District of New York
    • 29 Marzo 1976
    ...to disregard the recommendation of the magistrate and decide the motion only on the basis of dry records . . .." United States v. Bergera, 512 F.2d 391, 393-94 (9th Cir. 1975). In the only case directly in point that we have found, a federal court has ruled that a state court's order of sus......
  • Johnson v. Finn
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 8 Diciembre 2011
    ...findings.” United States v. Ridgway, 300 F.3d 1153, 1154 (9th Cir.2002).3 We initially adopted this rule in United States v. Bergera, 512 F.2d 391 (9th Cir.1975), explaining that a requirement for “the district court to rehear the evidence if it decides not to follow the recommendations of ......
  • U.S. v. Raddatz
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 4 Mayo 1979
    ...underlying a motion to suppress. Jackson v. Denno, 378 U.S. 368, 376-77, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), United States v. Bergera, 512 F.2d 391, 393 (9th Cir. 1975). Due Process, however, does not encompass any fixed requirement that the trier of fact personally hear the evidence in e......
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