Cervantes v. United States, 15785.

Citation263 F.2d 800
Decision Date21 January 1959
Docket NumberNo. 15785.,15785.
PartiesLuis L. CERVANTES, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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

Luis L. Cervantes, Steilacoom, Wash., in pro. per.

Laughlin E. Waters, U. S. Atty., Peter J. Hughes, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BONE, POPE, and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

Luis L. Cervantes appeals from his conviction on three counts of illegally importing, transporting, and concealing narcotics in violation of 21 U.S.C.A. § 174. The one question presented is whether narcotics and a hypodermic syringe, received in evidence over appellant's objection, were obtained by an illegal search and seizure.

The facts having to do with the search and seizure are not in dispute. On September 27, 1955, Kenneth Grant, a federal customs investigator, received information about a man who was said to have gone to Tijuana from Los Angeles to purchase narcotics. He was described as a short man of Mexican extraction with the given name of "Luis," the surname being unknown. The information was that "Luis" was dealing with one Manuel Vargas — a person known to Grant since 1946 as a vendor of narcotics in Tijuana. The informant further advised that the car driven by "Luis" contained a secret compartment for hiding marijuana. The informant described the car as a green Plymouth, Dodge, or Chrysler, with license number 1W47527 or 1W47537.

Grant testified that his source was one who "has informed." Neither he nor any other witness, however, indicated that the informant was personally known to him, or whether past experience demonstrated that this was a reliable source. No evidence was offered concerning the manner in which the informant obtained his information — whether by personal observation or otherwise. Nor does the record reveal where Grant was when he received the information and how it was communicated to him.

Upon receiving this information on September 27, Grant notified border officials to be on the lookout for the described vehicle and occupant. No automobile with one of the indicated license numbers was observed crossing the border on that day. Grant thereafter made a check of the registration of these numbers, but found no automobile registered to a "Luis."

A month later — October 28, 1955 — Grant was contacted by the same informant and was advised that the same car was in Tijuana again. At that time the informant gave a corrected license number — 1W4752. Grant then went to Tijuana and observed a person answering the description provided by the informant driving a 1952 Chrysler with the indicated license number on First Street in that city. Grant again alerted the border inspectors for the purpose of giving this vehicle and its driver a thorough search upon entry into the United States. The record does not disclose whether the automobile and its driver were searched at the border on that day.

Grant thereafter checked the corrected license number and found that it was registered to Luis Cervantes in Los Angeles. Grant then made a check of the records in the sheriff's office of San Diego County and learned that in 1941 Cervantes had been convicted in federal court for smuggling marijuana. He also had a number of other arrests for narcotics violations.

On December 8, 1955, Grant again saw Cervantes driving his car on First Street in Tijuana. Once more Grant alerted border inspectors. He requested that the car and its occupants be searched thoroughly "as I suspected narcotics." Grant also notified the immigration authorities of his suspicions and requested that their Oceanside office be advised by radio.1 Again the record does not disclose whether Cervantes was stopped and searched at the border.

On the evening of December 8, 1955, Cervantes was stopped at San Clemente, California, while driving north in his Chrysler. He was traveling on U. S. Highway 101, which is one of the two main routes between San Diego and Los Angeles. Cervantes was stopped by Clifford J. Davis, a patrol inspector of the Immigration and Naturalization Service, and also an authorized customs inspector. Davis was working out of the Oceanside office and testified that he acted on the basis of Grant's "alert" for "possible suspects." Cervantes was not stopped because of any traffic or other law violation then visible. Davis did not have a warrant for Cervantes' arrest or search.

Davis testified that Cervantes was not "arrested," but was immediately searched. A substance later identified as heroin and a hypodermic syringe were found on Cervantes' person. Thereafter Cervantes, his lady passenger, and the automobile were taken to the police station in San Clemente where a further search of the car was made. A number of marijuana seeds were discovered and a "secret" compartment was found in the car.

At the jury trial Cervantes moved to suppress this evidence. He also objected to the questions eliciting information concerning the "secret" compartment. The motion was denied and the objection was overruled, the evidence being received as part of the government's case.

Invoking the Fourth Amendment, appellant argues that this evidence was obtained by an unreasonable search and seizure and was therefore, under Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 inadmissible in this federal prosecution. The search and seizure was unreasonable, appellant contends, because the arresting officer did not have probable cause to believe that Cervantes was carrying contraband or committing a felony.2

The government does not deny that the Fourth Amendment applies to the seizure of narcotics.3 It appears to accept appellant's proposition that the reasonableness of a search made of an automobile on the highway and its driver depends upon a showing of probable cause.4 Nor does the government contend that a showing of probable cause is excused in this case because the search was made in connection with a border entry.5 The government does, however, dispute appellant's contention that probable cause was not shown in this case.

One need not have evidence which would justify a conviction in order to have probable cause to believe that an offense has been or is being committed. On the other hand, probable cause means more than a bare suspicion. In Hamer v. United States, 9 Cir., 259 F.2d 274, 282, we quoted with approval this statement from the opinion in Brinegar v. United States, supra:

"Probable cause exists where `the facts and circumstances within their the officers\' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that\' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280."

Appellant argues that probable cause was not shown in this case. In support of this he contends: (1) The federal officers had no personal knowledge gained by observation or otherwise which would warrant the belief that Cervantes was transporting narcotics on December 8, 1955; (2) the information concerning such activity, which came to the officers from an informant, would not warrant the belief that Cervantes was transporting narcotics on December 8, 1955, because such information related to incidents which had occurred from six to ten weeks prior to that date; and (3) there is in any event no evidence in the record that this informant was reasonably trustworthy, and without such evidence probable cause may not be based thereon.

The evidence as summarized above supports appellant's contention that the federal officers had no personal knowledge gained by observation or otherwise which would warrant the belief that Cervantes was transporting...

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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 6, 1962
    ...v. United States, supra; Wong Sun v. United States, 9 Cir., 288 F.2d 366; Rodgers v. United States, 9 Cir., 267 F.2d 79; Cervantes v. United States, 9 Cir., 263 F.2d 800; Hobson v. United States, supra; Wrightson v. United States, 95 U.S.App. D.C. 390, 222 F.2d 556; Contee v. United States,......
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  • Blefare v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 8, 1966
    ...This it was ultimately found to be. Mere suspicion has been held enough cause for a search at the border. Cervantes v. United States, 9 Cir., 1959, 263 F.2d 800, 803, note 5.\'" (Emphasis The use of body cavities to transport narcotics has become an accepted practice by experienced smuggler......
  • United States v. Peltier 8212 2000
    • United States
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    • June 25, 1975
    ...must be shown to validate a search for contraband except in a border search or its functional equivalent, see, e.g., Cervantes v. United States, 263 F.2d 800, 803 (1959); Fumagalli v. United States, 429 F.2d 1011 (1970),3 and this despite a statutory authorization to search for contraband a......
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1 books & journal articles
  • Mission Impossible? Challenging Police Credibility in Suppression Motions
    • United States
    • Criminal Justice Policy Review No. 33-6, July 2022
    • July 1, 2022
    ...can shift to the government. For example, the prosecution bears the burden to justify warrantless searches (Cervantes v. United States, 263 F.2d 800, 9th Cir. 1959; United States v. De La Fuente, 548 F.2d 528, 5th Cir. 1977; United States v. Rivera, 321 F.2d 704, 2d Cir. 1963). Unlike other......

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