Cervantes v. United States

• Decision Date: 08 April 1960
• Docket Number: No. 16681.,16681.
• Citation: 278 F.2d 350
• Parties: Luis L. CERVANTES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

278 F.2d 350 (1960)

Luis L. CERVANTES, Appellant, v. UNITED STATES of America, Appellee.

No. 16681.

United States Court of Appeals Ninth Circuit.

April 8, 1960.

Willis D. Hannawalt, San Francisco, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Elmer Enstrom, Jr., Asst. U. S. Atty., San Diego, Cal., Robert John Jensen, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BONE, POPE and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

Luis L. Cervantes appeals from his conviction on the first two counts of a three-count indictment charging violations of the narcotic laws.¹ This is the second time Cervantes has been convicted under this indictment. As a result of a previous trial Cervantes was convicted on all three counts. However, on appeal we reversed and remanded with directions which led to the granting of a new trial. Cervantes v. United States, 9 Cir., 263 F.2d 800.

The single question presented on the previous appeal was whether exhibits consisting of narcotics and a hypodermic syringe should have been excluded as having been obtained by means of an unreasonable search and seizure, contrary to the Fourth Amendment. These articles were found in Cervantes' automobile on the evening of December 8, 1955, when he was stopped on the highway by a customs inspector at San Clemente, California.

Since the officer who stopped Cervantes did not have a warrant for his arrest or search, the reasonableness of the search and seizure depended upon a showing of probable cause. Carroll v. United States, 267 U.S. 132, 155-156, 45 S.Ct. 280, 69 L.Ed. 543. The burden of making such a showing is upon the government. Wrightson v. United States, 95 U.S.App.D.C. 390, 222 F.2d 556. We determined on the earlier appeal that the government had not maintained this burden, and that under the doctrine of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, the evidence should have been excluded. Our direction on remand was to grant Cervantes a new trial or, in the discretion of the trial court, to dismiss the action.²

Following the remand Cervantes moved in the district court for dismissal of the action and in the alternative for transferal of the cause to another department of the district court. Both motions were denied. Cervantes then moved, prior to trial and in the manner provided in Rule 41(e), Federal Rules of Criminal Procedure, 18 U.S.C.A., to suppress the evidence to which reference has been made. This motion was also denied. United States v. Cervantes, D. C., 174 F.Supp. 398. All subsequent motions and objections made during the trial in an effort to exclude this evidence were likewise denied or overruled.

On this appeal Cervantes contends that the trial court erred in denying the motion to suppress and in admitting the evidence over his objection. Several arguments are made in support of this contention, one being that the government did not maintain its burden of proving that the officer who ordered the search and seizure had probable cause for so doing.

As indicated by what has been said above, this is the precise question which was before us on the first appeal. Our previous holding that the government did not maintain its burden of proving probable cause became the law of the case in so far as the evidence then before us is concerned. If, therefore, the evidence was the same at the second trial as it was at the first, the law announced in our prior decision should have caused the trial court to exclude the evidence and does require us to reverse. See City of Seattle v. Puget Sound Power & Light Co., 9 Cir., 15 F.2d 794, 795, discussing the rule of the law of the case.

The order to search Cervantes' automobile was given by Kenneth Grant, a federal customs inspector. The fact which the government had to establish was that on or before December 8, 1955, when he gave that order, Grant had probable cause to believe that Cervantes would be transporting narcotics in his automobile on that day. Based on the evidence produced at the first trial, we held on the prior appeal that Grant did not have personal knowledge or knowledge through an informant which would warrant the belief that Cervantes was transporting narcotics on December 8, 1955.³

On the motion to suppress which preceded the second trial the government did not produce any substantial additional evidence as to Grant's personal knowledge. As to information received by Grant from an informant, however, the government did produce one item of additional evidence. In order to make clear the respect in which this new evidence was additional to that originally produced, it is first necessary to describe the original evidence and our treatment of it. We do so in the words of our first opinion. (263 F.2d 804):

"The only information Grant received as to Cervantes\' possible narcotics activities was that which came to him on September 27, 1955. He was told that on that date a man answering Cervantes\' description was in Tijuana to buy narcotics, and was in contact with Manuel Vargas, known to Grant as a narcotics vendor. The only information thereafter given to Grant was that communicated on October 28, 1955. This information was that Cervantes was again in Tijuana, and that a corrected license number had been ascertained. Grant was not told that Cervantes had come to Tijuana on October 28 to purchase narcotics, or that he was or had been in contact on that date with Vargas or any other narcotics vendor.

"The fact that Cervantes may have purchased narcotics in Tijuana on September 27, 1955, for importation into this country does not tend to prove that his presence in Tijuana ten weeks later must have been for the same purpose. Thus, assuming that Grant had reason to place reliance upon the information supplied by his informant, we do not believe that it would warrant a man of reasonable caution in believing that Cervantes must have been illegally transporting narcotics when he entered the United States from Mexico on December 8, 1955."

It will be noted that our holding was to the effect that the information received by Grant on September 27 and October 28, 1955,...