534 F.2d 1386 (10th Cir. 1976), 75-1394, United States v. Stricklin

Docket Nº:75-1394, 75-1395, 75-1396, 75-1397 and 75-1398.
Citation:534 F.2d 1386
Party Name:UNITED STATES of America, Appellee, v. Jack M. STRICKLIN, Jr., et al., Appellants.
Case Date:April 22, 1976
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1386

534 F.2d 1386 (10th Cir. 1976)

UNITED STATES of America, Appellee,

v.

Jack M. STRICKLIN, Jr., et al., Appellants.

Nos. 75-1394, 75-1395, 75-1396, 75-1397 and 75-1398.

United States Court of Appeals, Tenth Circuit

April 22, 1976

Argued Feb. 26, 1976.

Rehearing Denied May 17, 1976.

Page 1387

Lee A. Chagra, El Paso, Tex., for appellants.

W. R. Hughes, Jr., Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., and Harris L. Hartz, Asst. U. S. Atty., Albuquerque, N. M., on the brief), for appellee.

Before LEWIS, Chief Judge, and SETH and BARRETT, Circuit Judges.

SETH, Circuit Judge.

Appellants appeal their conviction of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. § 846.

Early on the morning of August 18, 1974, Officer Larry Turner of the New Mexico Department of Game and Fish was patrolling a thinly populated ranch and recreation area northeast of Roswell, New Mexico, checking for illegal nighttime hunting. At approximately 1:00 a. m., after he saw briefly a flashing light on the horizon, he contacted Wildlife Officers Tom Moody and Lloyd Haun who were also patrolling. The three officers met and decided to split up and attempt to pursue the light source. Soon thereafter two of the officers saw an airplane near the horizon.

Sometime later, Officer Turner saw two vehicles near a gate on a pipeline road. The vehicles were going away from him and the taillights indicated that one was

Page 1388

pulling a trailer. All three officers then observed the vehicles, and, through radio communication, determined that the vehicles had turned around. The officers then temporarily lost sight of the vehicles, decided to change positions, and attempted to again watch the vehicles. Two of the officers again spotted the two vehicles and watched for about ten minutes as the vehicles, an automobile pulling a U-Haul trailer and a pickup truck traveling ten to twenty yards ahead of it, approached and then passed them. The vehicles were seen to be sweeping their headlights and thereby illuminating the areas to either side of the road. These two vehicles were the only ones seen in the area by the officers that morning.

At approximately 3:30 a. m., Officer Turner stopped the lead vehicle, an open-bed pickup truck. Appellant Stricklin got out of the truck on the passenger side and asked Officer Turner why they had been stopped. Turner replied that he was checking for illegal hunting. The officer then went to the rear of the truck and with the aid of a flashlight saw appellants Harris, Johnson, and Franklin seated in the open bed of the pickup. Turner then asked Stricklin if they had any firearms, and he replied that they had two pistols. He also said that they were just camping. Turner asked Stricklin why they were driving around at 3:30 a. m., and he replied that they had decided to leave.

Officer Turner went to the passenger side of the truck and saw a .38 caliber revolver and a hunting knife on the seat. On the floor of the truck, he saw five battery-powered handlights as well as an attache case and a plastic zippered bag. Turner then searched the glove compartment of the truck and...

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