U.S. v. Pretzinger

Decision Date17 September 1976
Docket NumberNos. 76-1589,76-1655,s. 76-1589
Citation542 F.2d 517
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Philip Carwin PRETZINGER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Dean ROBERTS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Robert J. Hooker (argued), of Hooker, McDonald & Morgan, Tucson, Ariz., for appellant in 76-1589.

Bob Barber, Jr. (argued), of Tucson, Ariz., for appellant in 76-1655.

John G. Hawkins, Asst. U.S. Atty. (argued), of Tucson, Ariz., for appellees.

Before CHAMBERS, CARTER and CHOY, Circuit Judges.

PER CURIAM:

In October, 1975, agents of the Drug Enforcement Administration learned that a Piper Cherokee Six, N-4001W, (the Clark plane), had been sold by a Dr. Donald E. Clark to one Sanders for $17,000 in cash. They further were informed that all of the seats had been removed from the aircraft except the pilot's and co-pilot's seats.

On October 21, 1975, Darrell Carrico, a pilot with the Border Patrol, happened to be at Paul Dickens' repair shop at Tucson International Airport when Donald Clark II, son of Dr. Clark, brought the Clark plane in for repairs. While a mechanic was working on the plane, Carrico went up to it, looked through the open doors and observed what he believed to be marijuana debris on the floor of the plane. He went into the plane and took some of the marijuana seeds. He then called the Drug Enforcement Administration (D.E.A.), which sent over two agents to investigate. One of these agents looked into the plane, saw the seeds and seized some of them. No warrant was obtained prior to either search of the plane.

On November 4, 1975, the United States Attorney applied to the United States Magistrate for an order allowing an electronic location buzzer to be placed on the Clark plane. The magistrate issued an order allowing the placement of the buzzer for a period of thirty days. On November 6, 1975, at 2:00 a. m., the beeper was placed on the airplane. At 4:00 p. m. the same day, the Clark plane took off and flew to Mexico. A D.E.A. aircraft followed it but had to abandon surveillance because of darkness. The next morning the D.E.A. plane began again to search for the Clark plane. A buzzer signal was received and the Clark plane was located and followed. Another D.E.A. plane was also called in.

The Clark plane was sighted and followed to an airstrip fifteen miles west of Buckeye, Arizona, where it was met by a green pickup truck. The agents in the planes observed bags of suspected contraband behind the truck. One of the D.E.A. planes followed the Clark plane as it left the rendezvous and the other followed the green truck. That truck met a red truck and stopped for a few minutes. The two trucks then proceeded toward the highway, entered it, and began moving toward Buckeye. The agent in the observing plane ordered the green truck stopped. The agents who stopped the green truck, driven by Pretzinger, found 800 pounds of marijuana in it. The D.E.A. plane did not continue its observation of the red truck after it entered the highway. Some seven minutes after the green truck was stopped, a sheriff's deputy stopped a red pickup truck about ten miles from where the green truck was stopped. The red truck was driven by Roberts. The deputy stopped the truck because he had been radioed that the D.E.A. wanted a red truck travelling in that direction stopped. Roberts' truck contained no contraband but he was taken back to where the agents were holding Pretzinger.

At 6:00 p. m. on the sixth, a newsman at a Phoenix television station received a phone call from an informant that a drug arrest would take place west of the city on the sixth or seventh. A reporter and camera man were sent out to Tonopah, Arizona, that night and waited until seven the next morning, at which time they began to return to Phoenix, but arrived on the scene of the drug arrest after a radio call about the activity.

Appellants were indicted for conspiracy to import a controlled substance, conspiracy to possess a controlled substance with intent to distribute it, and possession of a controlled substance with intent to distribute it.

The appellants moved to suppress the evidence of the various searches and moved to have the court order the newsman to reveal the name of his source. The district court denied these motions but entered a finding of fact that the informant was a government agent. Appellants submitted to trial without jury on the transcripts of the suppression hearings and were found guilty on all three counts. They received concurrent sentences on the three counts.

As to appellant Roberts, we reverse the convictions. Even applying the standard of Glasser v. United...

To continue reading

Request your trial
38 cases
  • People v. Smith
    • United States
    • California Court of Appeals Court of Appeals
    • 28 Febrero 1977
    ...the drum still was owned and in the possession of the chemical company when the installation took place. In United States v. Pretzinger (9th Cir.1976) 542 F.2d 517, 520, an electronic tracking device was attached to an airplane pursuant to a warrant authorizing the installation. The Court o......
  • State v. Rinaldo
    • United States
    • Washington Supreme Court
    • 18 Octubre 1984
    ...include In re McAuley, 63 Ohio App.2d 5, 21, 408 N.E.2d 697 (1979); Sandstrom, 224 Kan., at 575, 581 P.2d 812; United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir.1976); United States v. Liddy, 478 F.2d 586, 587 (D.C.Cir.1972); United States v. Orsini, 424 F.Supp. 229, 232 (E.D.N.Y.1976......
  • Smith v. State
    • United States
    • Maryland Court of Appeals
    • 14 Julio 1978
    ...exposed to the public, and therefore are not a subject of Fourth Amendment protection." 539 F.2d at 33-34. Accord: United States v. Pretzinger, 542 F.2d 517 (9th Cir. 1976). Contra: United States v. Holmes, 521 F.2d 859 (5th Cir. 1975), Aff'd by an evenly divided court, en banc 537 F.2d 227......
  • U.S. v. Brock
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 18 Febrero 1982
    ...577 F.2d 489, 492-93 (9th Cir.), cert. denied, 439 U.S. 896, 99 S.Ct. 258, 58 L.Ed.2d 243 (1978) (airplane); United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976) (car); United States v. Hufford, 539 F.2d 32, 33-34 (9th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 6......
  • Request a trial to view additional results
1 books & journal articles
  • Back to Katz: reasonable expectation of privacy in the Facebook age.
    • United States
    • Fordham Urban Law Journal Vol. 38 No. 2, December 2010
    • 1 Diciembre 2010
    ...did not constitute a search or seizure where vehicle was outside the "curtilage" of defendant's residence); United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976) (holding that installation of beeper on an airplane parked at a repair shop was not a A second camp held that attachment......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT