545 F.2d 661 (9th Cir. 1976), 76-1947, United States v. Stanley

Docket Nº:76-1947, 76-2136.
Citation:545 F.2d 661
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Frank D. STANLEY and Mario Gonzalez-Garcia, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. The O/S NATIONAL, her engines, tackle, appurtenances, etc., in rem, Defendant, Frank D. Stanley, Claimant-Appellee.
Case Date:November 05, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 661

545 F.2d 661 (9th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellant,

v.

Frank D. STANLEY and Mario Gonzalez-Garcia, Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellant,

v.

The O/S NATIONAL, her engines, tackle, appurtenances, etc.,

in rem, Defendant,

Frank D. Stanley, Claimant-Appellee.

Nos. 76-1947, 76-2136.

United States Court of Appeals, Ninth Circuit

November 5, 1976

Rehearing and Rehearing En Banc Denied Dec. 20, 1976.

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Billie A. Rosen, Atty. (argued), Washington, D. C., Dennis Michael Nerney, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant.

William Pinkus (argued), of Abbott & Pinkus, Mill Valley, Cal., James H. Newhouse (argued), of Cooper, Newhouse, Hertz, & Lyons, Berkeley, Cal., for Frank Stanley and Mario Gonzalez-Garcia.

Before LAY, [*] WRIGHT and KILKENNY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The government appeals both the district court's grant of defendants' motion to suppress all evidence seized in a warrantless search of The O/S National and the entry of a judgment of non-forfeiture. Defendants were charged with importation of marijuana, 1 possession with intent to distribute, conspiracy to import, and conspiracy to possess with intent to distribute, in violation of 21 U.S.C. §§ 952(a), 841(a)(1), 963, and 846. Approximately 11,000 pounds of marijuana were found aboard the vessel and its forfeiture and condemnation were requested by the government under the provisions of 21 U.S.C. § 881(a)(4) and 49 U.S.C. § 782. The criminal and civil cases were consolidated for appeal.

I.

FACTS

On February 6, 1976, a Sonoma County deputy sheriff was called to the dock area of the Harbor Fish Company, Bodega Bay, California, where he observed a two-ton U-Haul rental truck with its right rear wheels broken through the pier. The driver told the officer that he was waiting for a fishing vessel to drop off some crab pots to be delivered to Eureka, California. The dock manager testified that tire tracks and a broken plank indicated that the truck had backed all the way down the pier to the loading area. This was denied by the driver. The driver then departed to obtain a hydraulic jack to free the truck.

After the driver left, the deputy noticed marijuana debris near the rear of the truck, inside it, and near the end of the pier by the water. He learned from local fishermen that two foreign boats (one well-known in Bodega Bay) and three local boats had left the harbor that morning, passing by the Harbor Fish Company pier as they were outbound. The less well-known foreign boat, The O/S National, was rigged for

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albacore fishing, then available only in southern California or Mexican waters.

Suspicious that illegal activity was afoot, the deputy phoned the Coast Guard, requesting apprehension of The O/S National. The National was first seen about nine miles from the coastline and was boarded 40 minutes later by Customs Patrol and Coast Guard personnel. Marijuana was found in the hold. The defendants were arrested and The National seized.

The district court determined that (1) there was insufficient probable cause to support a warrantless search, (2) there was insufficient evidence to warrant a finding that The O/S National had recently sailed from Mexican waters so as to sustain the action as a border search, and (3) because there was no probable cause and no border search, the search could not be sustained as a customs search pursuant to 19 U.S.C. § 1581(a).

II.

PROBABLE CAUSE

As a fundamental rule, "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." (Footnotes omitted.) Katz v. United States,389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception is the finding of probable cause coupled with exigent circumstances. In this case, our holding as to probable cause makes it unnecessary to reach the issue of exigent circumstances.

"As a matter of routine practice, this circuit recites and evaluates primary evidence whenever reviewing a question of probable cause in a criminal case." United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1108 (9th Cir. 1976).

The O/S National had entered the harbor after midnight on the morning of the 6th and, as previously noted, was one of several vessels proceeding out of the channel early that morning. The trial judge found that it was seen leaving the harbor from the direction that any vessel would have come when heading out to sea. He also noted that the rigging of O/S National was not so unusual as to trigger a connection with Mexico or contraband. In fact, it was rigged in the same manner as were 60% of the vessels berthed in Bodega Bay.

What was missing was a connection between The O/S National and the site of the marijuana transfer. In United States v. Bates, 533 F.2d 466 (9th Cir. 1976), probable cause was found where defendant had twice driven to and left a known smuggling area where the modus operandi was the picking up of smuggled goods by car. In United States v. One Twin Engine Beech...

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