Jones v. United States
Citation | 326 F.2d 124 |
Decision Date | 28 January 1964 |
Docket Number | No. 18365.,18365. |
Parties | James Coley JONES, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Edgar G. Langford and J. Perry Langford, San Diego, Cal., for appellant.
Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief Criminal Section, and J. Brin Schulman, Asst. U. S. Atty., for appellee.
Before BARNES and DUNIWAY, Circuit Judges, and PENCE, District Judge.
Appellant was convicted by a jury of possession of marihuana, violating Section 176a of Title 21 United States Code, and was sentenced to prison. Appellant's automobile was stopped after a United States Customs Agent had been personally informed, through an informant known to him (who had given reliable information in the past with respect to unlawful importation) that "two colored people, a man and a woman driving a 1956 Buick automobile red and white in color, bearing California license plates MXW 707, had arranged to obtain a package of marihuana and would probably attempt to bring it into the United States at a later hour."
The United States Customs Agent at the border ascertained such a car had just passed through customs, so a message was dispatched by radio to have police stop the vehicle. This was accomplished within two and one-half hours, some sixty-seven miles from the border.
This specifically identified automobile was stopped by Border Patrol Inspector James G. Crawford. In describing the events leading up to the search, the trial court found, in the memorandum denying the motion to dismiss and suppress and to require disclosure:
In commenting on the request for disclosure, in the same memorandum denying such relief, the trial court made the following pertinent statement:
After a detailed discussion of the evidence produced by defendants in an attempt to show how bulk marihuana was placed in the locked rear compartment of their car by some unknown third person, the trial judge commented:
Appellant urges that Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, the very case relied upon by the trial court to deny the motion to name the informer, requires reversal. We disagree. That case holds the trial judge "may require disclosure of the name of an informant and, if the Government withholds the information, dismiss the action." It does not hold the trial court must require disclosure in each instance. As the Supreme Court stated: "We believe that no fixed rule with respect to disclosure is justifiable." Cf. Draper v. United States, 1959, 358 U.S. 307, 79 S. Ct. 329, 3 L.Ed.2d 327.
Appellant urges on us that the disclosure of the informer's name is here required, because such fact might have helped defendant defend the case, citing primarily Costello v. United States, 9 Cir.1962, 298 F.2d 99; Plazola v. United States, 9 Cir.1961, 291 F.2d 56; Contreras v. United States, 9 Cir.1961, 291 F.2d 63; and certain dicta in Roviaro v. United States, supra. We do not think so.
In Roviaro, supra, Count I of his indictment charged a sale of narcotics by defendant to one John Doe. Count II did not name any person other than the defendant, and charged illegal transportation of narcotics. The government urged before the Supreme Court that because concurrent sentences were imposed on defendants on both Counts I and II, Count II should be upheld because the identity of the informer had no real bearing on that charge.
"Where the disclosure of an informer's identity," says the Supreme Court, "* * is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege of nondisclosure must give way." (Id., 353 U. S. pp. 60-61, 77 S.Ct. pp. 627-628, 1 L.Ed. 2d 639.)
The Roviaro opinion then mentions the "no fixed rule" described above, and continues:
In Plazola, supra, the arresting officer "had received no prior information with respect to this particular transaction" (emphasis added) concerning which appellant was arrested. There was no warrant for his arrest. There was no violation of law with respect to narcotics taking place in the presence of the officers when Plazola's vehicle was stopped. We likewise found no unusual driving maneuvers. As we stated therein, "there was not even an attempt made herein to justify by evidence any proof of the reliability of any informant." (Id., 291 F.2d p. 60.)
In Contreras, supra, his car was stopped for an "illegal alien" check seventy-two miles north of the Mexican border, a perfectly legal stopping of the car. No question of an informant was raised. We held the stopping for an alien check was proper, but no "probable cause" for a search of the auto prior to arrest. The arrest was the result of what the search disclosed. As we stated: "There is nothing suspicious about a paper sack lying under a bedspread and jacket on the front...
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