Bloomer v. United States

• Decision Date: 09 April 1969
• Docket Number: No. 22585.,22585.
• Citation: 409 F.2d 869
• Parties: Barnaby Ashford BLOOMER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

409 F.2d 869 (1969)

Barnaby Ashford BLOOMER, Appellant, v. UNITED STATES of America, Appellee.

No. 22585.

United States Court of Appeals Ninth Circuit.

April 9, 1969.

Herbert M. Porter (argued), Los Angeles, Cal., for appellant.

Mobley M. Milam (argued), Asst. U. S. Atty., Edwin L. Miller, Jr., U. S. Atty., San Diego, Cal., for appellee.

Before DUNIWAY and ELY, Circuit Judges, and BYRNE,^* District Judge.

ELY, Circuit Judge:

Appellant Bloomer was convicted, in a jury trial, of having unlawfully received 225 pounds of contraband marihuana. 21 U.S.C. § 176a. He appeals, invoking our jurisdiction under 28 U.S.C. §§ 1291, 1294.

Bloomer makes four contentions: (1) The search which revealed the marihuana was unlawful; (2) The failure of the Government to disclose the identity of its informant denied the appellant of his right to confrontation; (3) The jury commissioner failed to meet his affirmative duty to insure that the jury panel represented a cross-section of the community; and (4) The Government's proof was insufficient to support conviction. The contentions are ill-founded; hence, we affirm.

The facts can be briefly summarized. On January 6, 1967, Customs Agent Gates received a telephone call from an informant who warned that a 1958 blue Oldsmobile automobile, license number YWR-583, would cross the Mexican border at San Ysidro, California that afternoon. While Agent Gates did not learn who would be driving the automobile, he was informed that the car would likely contain marihuana and that it would probably be left parked somewhere in the San Ysidro area.

At about six o'clock that evening, Agent Gates observed an Oldsmobile with the suspect license number enter the United States. Gates, accompanied by several agents, followed the car to a laundromat in San Ysidro where it was parked. Shortly after the occupants of the vehicle entered the laundromat, the agents observed Bloomer approach the car, stop beside it, enter it, and apparently prepare to drive away. At this point, the agents interrupted Bloomer, searched the vehicle, and upon their discovery of marihuana hidden behind the door panels, made the arrest.

In attacking the legality of the search, Bloomer insists that probable cause for the search was not shown and, for that reason, the search infringed his fourth amendment rights. He recognizes that "border searches" do not require a showing of probable cause but contends that the search was not a "border search" and, alternatively, that the "border search" rule is unconstitutional insofar as it includes no probable cause requirement.

Both contentions lack merit. No useful purpose would be served by repetition of language by which we have often explained why the probable cause requirement is not applicable to "border searches." See, e. g., Witt v. United States, 287 F.2d 389, 391 (9th Cir.), cert. denied, 366 U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242 (1961). Therefore, in order to deal with the appellant's fourth amendment claims, we need only consider whether the search in question was a "border search." In Alexander v. United States, 362 F.2d 379 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed. 2d 439 (1966), our court defined the test of whether a search not made in the immediate vicinity of the border is a "border search" as follows:

"(T)he legality of the search must be tested by a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of search was aboard the vehicle at the time of entry into the jurisdiction of the United States. * * *"

Id. at 382. Here, the Oldsmobile was under constant surveillance from the time it crossed the border, it had traveled no great distance before it was searched, and the concealed marihuana was discovered behind the panels attached to the car doors. After the vehicle crossed the border and until it was searched, no person entered it except Bloomer, and he was allowed no sufficient time to...