525 F.2d 873 (5th Cir. 1976), 75--1100, United States v. Freund

Docket Nº:75--1100.
Citation:525 F.2d 873
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Wayne FREUND, Defendant-Appellant.
Case Date:January 07, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 873

525 F.2d 873 (5th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

David Wayne FREUND, Defendant-Appellant.

No. 75--1100.

United States Court of Appeals, Fifth Circuit

January 7, 1976

Page 874

David R. Rosado (Court-appointed), El Paso, Tex., for defendant-appellant.

John E. Clark, U.S. Atty., San Antonio, Tex., Frank B. Walker, William B. Hardie, Jr., Asst. U.S. Attys., El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, CLARK and RONEY, Circuit Judges.

CLARK, Circuit Judge:

In this direct criminal appeal from conviction of possession of marijuana with intent to distribute (21 U.S.C. § 841(a)(1)), appellant Freund raises two issues which relate to the validity of a warrantless search of his truck conducted by a Customs Control officer. Specifically, appellant contends that: (1) the officer lacked probable cause to search the vehicle and (2) the trial court erred in denying his request for disclosure of the identity of a government informer who witnessed the search and ensuing arrest. Without the aid of supplementary proceedings in the district court, this court is unable to clearly assess the propriety of the trial judge's refusal to order disclosure and its effect on the issue of probable cause. We thus remand the case with directions that the district court interview the informer-witness in camera for the purpose of determining whether disclosure is warranted under the balancing test prescribed by the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

I. THE FACTS

Appellant's sole defense at his nonjury trial was that the evidence which formed the basis of his conviction was secured as a result of an illegal search and seizure and thus should have been suppressed. To resolve appellant's claim of an illegal search, a detailed recitation of the events preceding the search is required. Customs Control Officer Regala testified that on May 17, 1974, he received a tip from a reliable informer that an individual in El Paso was attempting to purchase a large quantity of marijuana from Mexico. Although no name or description of the person was given, the tipster stated that the individual was driving a red utility truck bearing North Carolina license plates, No. AE 8420. The next evening at approximately 10:00 p.m. Regala was foot-patrolling the Rio Grande a mile away from the port of entry at Fabens, Texas, when he observed two vehicles approach each other from opposite sides of the border, stop and turn their lights off. The vehicle from the American side then left the area and drove within 20 yards of Regala, just long enough for the officer to note that it was a red utility truck with North or South Carolina plates containing the letters 'A' and 'E.' Regala did not witness any illegal transaction nor did he take steps to secure a search warrant for the truck. On the morning of the arrest, May 20, 1974, Regala was patrolling Interstate Highway 10 when he saw the truck described to him by the informant. Believing the vehicle to be

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the same one involved in the nocturnal events at the border two days before, Regala allowed the vehicle to pass him and proceeded to run a license check. At this point, Regala claimed that he observed that 'the back of the vehicle didn't appear to be quite right, in that the bed of the vehicle appeared to be somewhat higher than I was expecting.' He also noticed that a seam of white caulking had been laid at the edges of the bottom of the truck's bed and thought that this suggested a false bottom. According to Regala, he now felt justified in stopping the truck 'due to my prior information, the activity I had observed and the vehicle itself . . .' Regala then stopped the vehicle and asked the driver, appellant Freund, for identification. Freund had none. While conversing with appellant regarding his inability to produce identification, Regala detected the distinct odor of marijuana. The search that followed uncovered 164 pounds of marijuana hidden underneath a false bottom in the front part of the truck bed. Freund was subsequently arrested and advised of his constitutional rights.

In his pretrial motion to suppress and at trial, Freund took the position that Regala's sole purpose for stopping the truck was to conduct a 'routine check' and that the officer did not have probable cause to believe that the vehicle contained contraband. To support his theory, Freund relied on a portion of a written case summary prepared by Officer Legaretta, a DEA special agent who compiled the report from information supplied by Regala. The summary did not recount...

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