U.S. v. Stricklin
| Decision Date | 17 May 1976 |
| Docket Number | Nos. 75-1394,75-1397 and 75-1398,75-1395,75-1396,s. 75-1394 |
| Citation | 534 F.2d 1386 |
| Parties | UNITED STATES of America, Appellee, v. Jack M. STRICKLIN, Jr., et al., Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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.
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 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 found a .22 magnum pistol and a starlight scope, a device used for hunting and other purposes in the nighttime.
While Turner was searching the pickup, a car pulling a U-Haul trailer drove up behind the first vehicle. The driver and sole occupant of the automobile was appellant Russell, who owned the car and who had rented the U-Haul trailer several days before. Officer Moody, who had followed appellant Russell and who had told him to pull up behind the pickup, also told him that they were investigating possible game violations. When Officer Turner asked Russell what was in the trailer, Russell responded that it contained household goods.
Officer Turner then returned to the pickup truck and began to make a more detailed search. There were several unrolled sleeping bags in the bed of the truck and he began to check them for evidence of game. He picked up one of the bags and felt the weight of a heavy object at the foot of it. He unzipped the bag and discovered two bricks of marijuana.
Meanwhile, Officer Moody was inspecting the rear of the U-Haul trailer for signs of blood or animal hair, but found none. Appellant Russell voluntarily attempted to open two padlocks on the door of the trailer, but the keys did not fit. Russell gave the keys to Officer Moody, but Moody's attempts to open the trailer doors also failed.
About 4:15 a. m., other law enforcement officers who had been called to the scene by Officer Turner arrived. Officer Jesse Franco, a narcotics agent of the New Mexico State Police, was shown the bricks of marijuana found in the sleeping bag. He then went to the rear of the U-Haul trailer where, he later testified, he detected a strong order of marijuana. Officer Franco asked appellant Russell for the keys to the trailer. When none of the keys fit, Franco and another officer pried open the trailer door enough to permit the officers to see what appeared to be several sacks containing bricks of marijuana. The appellants were placed under arrest for narcotics and game violations, and taken to town. There, when the appellants were advised of their rights, appellant Stricklin stated that he had already called a friend who would take care of all of the appellants.
A later examination of the contents of the U-Haul trailer revealed 2,250 pounds of marijuana in brick form in eighty plastic sacks. All but one of the sacks were sealed and contained twelve to fifteen bricks of marijuana each. The open sack, which was found in the lower left front corner of the trailer, contained only eleven bricks. The keys to the padlocks on the door of the trailer were found in a shaving kit in the rear of appellant Russell's automobile.
At about 11:00 a. m. on the same morning, Officer Moody and Officer Romero of the Chaves County Sheriff's office visited a landing strip approximately eleven miles northeast of where the appellants had been apprehended. They there found fresh evidence of tire tracks on the pipeline road leading to the airstrip. The tracks appeared to be from two vehicles, one pulling a trailer. The tracks crossed the airstrip and returned to the pipeline road and on to the Red Bluff Road, the hard gravel road on which appellants were apprehended. On cross-examination, Officer Moody stated that the tracks at the airstrip appeared to match the tires of appellants' vehicles.
The appellants were convicted as noted above, and raise several grounds for reversal.
Appellants contend initially that the searches of both the truck and the U-Haul trailer were improper.
They urge that the officers did not have probable cause to stop the pickup truck initially, and that even if the stop was proper, the search of the bed of the pickup and the bedrolls was not based upon probable cause.
The officers stopped the vehicles upon the reasonable belief that...
To continue reading
Request your trial
-
People v. Hilber, 2
...See, e. g., United States v. Barnard, 553 F.2d 389 (CA5, 1977); United States v. Andrade, 545 F.2d 1032 (CA5, 1977); United States v. Stricklin, 534 F.2d 1386 (CA10, 1976); State v. Houlf, 27 Ariz.App. 633, 557 P.2d 565 (1976); People v. Maier, 47 App.Div.2d 344, 366 N.Y.S.2d 660 (1975); Co......
-
U.S. v. Espinosa, s. 83-2001
...a joint undertaking relative to the marijuana" may be found to be in constructive possession of the contraband. United States v. Stricklin, 534 F.2d 1386, 1390-91 (10th Cir.), cert. denied, 429 U.S. 831, 97 S.Ct. 92, 50 L.Ed.2d 95 (1976). Constructive possession is possession in law but not......
-
US v. McKneely
...States v. Sperow, 551 F.2d 808 (10th Cir.1977), cert. denied, 431 U.S. 930, 97 S.Ct. 2634, 53 L.Ed.2d 245 (1977); United States v. Stricklin, 534 F.2d 1386 (10th Cir.1976), cert. denied, 429 U.S. 831, 97 S.Ct. 92, 50 L.Ed.2d 95 (1976); United States v. Bowman, 487 F.2d 1229 (10th Similarly,......
-
State v. Greenwood
...v. Garcia-Rodriguez, 558 F.2d 956 (9th Cir. 1977), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 802 (1978); United States v. Stricklin, 534 F.2d 1386 (10th Cir.), cert. denied, 429 U.S. 831, 97 S.Ct. 92, 50 L.Ed.2d 95 (1976); United States v. Fontecha, 576 F.2d 601 (5th Cir. 1978);......