Riley v. United States

• Decision Date: 20 June 1969
• Docket Number: No. 22511.,22511.
• Citation: 411 F.2d 1146
• Parties: James RILEY, Jr., and Frank Marshall, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

411 F.2d 1146 (1969)

James RILEY, Jr., and Frank Marshall, Appellants, v. UNITED STATES of America, Appellee.

No. 22511.

United States Court of Appeals Ninth Circuit.

May 28, 1969.

Rehearing Denied June 20, 1969.

COPYRIGHT MATERIAL OMITTED

William T. Healy (argued), Tucson, Ariz., for appellants.

Rubin Salter (argued), Asst. U. S. Atty., Edward E. Davis, U. S. Atty., Jo Ann D. Diamos, Asst. U. S. Atty., Tucson, Ariz., for appellee.

Before BARNES and DUNIWAY, Circuit Judges, and McNICHOLS, District Judge.

McNICHOLS, District Judge:

Appellants, James Riley, Jr. and Frank Marshall (hereinafter referred to respectively as "Riley" or "Marshall") were each convicted by jury verdict on both counts of a joint two count indictment. The first count charged a conspiracy by the two men to receive, conceal and transport an illegally imported narcotic substance, i. e., heroin. The second count charged the receipt, concealment and transportation of the heroin all in violation of Sections 173 and 174, Title 21, United States Code. Concurrent ten year sentences were meted out.

The principal errors relied on in the order to be discussed are as follows:

1. That the trial court erred in refusing to suppress evidence obtained as the result of an unlawful arrest where no probable cause for arrest existed.

2.(a) That proof was lacking that appellants ever had possession of the narcotic contraband.

(b) That even if possession in appellant Marshall was proved, there was a lack of proof of possession on the part of appellant Riley.

3.(a) That in custody statements of appellant Riley were improperly admitted in evidence, the same being the fruit of an illegal arrest.

(b) That it was error for the trial court to fail to caution the jury, on his own motion, that Riley\'s statements could not be considered by the jury against Marshall.

4. That it was error to refuse to order the government to disclose the identity of an informer whose communications were relied upon in making the arrests.

5. That a fatal variance developed between the dates alleged in the indictment and those disclosed by the proof.

6. That the United States Attorney, during closing argument, was guilty of prejudicial misconduct warranting a mistrial.

A review of the facts leading up to the arrest of the appellants and of the occurrences immediately thereafter is required.

Nogales, Arizona is a relatively small town located adjacent to the border between the United States and the Republic of Mexico. Nogales, Sonora, Mexico is across the international border from Nogales, Arizona. As is true of many such border towns, the port of entry at Nogales is frequently utilized for the unlawful smuggling of narcotics from Mexico to the United States. Considerable surveillance by customs authorities in Nogales, Arizona is carried out.

In the middle of the month of May, 1967, during such a surveillance, the appellant Riley was observed by customs officers in the company of a known drug trafficker, one Billy Joe Campbell. On May 21, 1967, customs agents were advised by an informant, whose prior tips had been very reliable, that two Negro men, associates of Campbell, were negotiating in Nogales, Mexico with one Poncho Martinez to purchase a large quantity of heroin. Both appellants in this case are Negroes. A few days later the same informant advised that the two Negro men had made a purchase of heroin, had transported it to Chicago, and would return to Nogales, Arizona about June 5, 1967. The informant further advised that Martinez was going to another Mexican city to obtain an additional supply of narcotics and expected to meet the two Negroes in Nogales, Mexico on or about June 5, 1967.

On June 5, 1967, the appellants, with a Negro woman identified as Miss Stanley, registered in a motel in Nogales, Arizona. A surveillance of the appellants was established. During the day of June 5, 1967, they rented two different rental cars in Nogales, made numerous telephone calls on a pay phone, and drove about the community. In the afternoon of that day, the appellants, with the woman companion, drove away from Nogales, Arizona toward the city of Tucson. The customs agent stopped appellants' car and searched the occupants. No contraband was found, but in searching appellant Riley, he was discovered to have approximately $5,000.00 in cash on his person. The surveillance continued and, at about 1:00 A.M. on June 6, 1967, the appellants and Miss Stanley reregistered at the same motel in Nogales, Arizona. They were seen again to make numerous phone calls and on several occasions one or the other would leave the motel in a taxicab. Finally, about 9:30 in the evening, the appellants and Miss Stanley left the motel in a taxi, went to the bus station where Miss Stanley boarded a bus, and the men then went on foot into Mexico. On June 7, 1967, the informant called the customs agent by telephone and advised that the two Negro males were in Nogales, Mexico waiting for Martinez to return. He described the men so that the officers easily recognized that the description matched that of the appellants. About 6:00 P.M. on June 7, 1967, the informant again called the customs officers and informed them that Martinez had returned to Nogales, Mexico and that appellants had made a purchase and had paid Martinez 50,000 pesos (about $4,000.00 in American money).

About 6:00 P.M. on June 7, 1967, appellants, first Riley and then a few minutes later Marshall passed through the Nogales port of entry on foot. The border inspection officers had been instructed to watch for them, report their return, but to let them pass without search.

Shortly thereafter appellants were observed by customs officers in a taxicab headed in the direction of Tucson, Arizona, a distance of sixty-seven miles from Nogales. The cab was followed to the Tucson bus depot where the appellants were arrested as they emerged from the taxi.

A cursory "patting down" search for weapons was made at the bus depot and the appellants placed in the back seat of a police car and transported to a state facility for a more complete search. An officer testified that there was nothing on the back seat of the police car when the appellants entered the car. While in the car, Marshall was observed to put his hand inside his shirt and move it toward the right rear of his person. When the appellants were removed from the police car, a package was observed on the seat which later was found to contain some five ounces of heroin.

Inside the building a search of the persons of the suspects revealed no contraband. Appellants were advised of their constitutional right to remain silent and to have counsel. Riley thereafter attempted to speak and was advised by an officer not to say anything. However, he persisted and asked, "Did those Mexicans turn me in?"

From the foregoing, it is abundantly clear that the officers had reasonable cause to arrest the appellants. The informer was one whose prior tips had been very reliable. The activities of the appellants had been such as to arouse the suspicions of the officers. At least one of them had been associated with a known narcotics dealer; they had followed a course of changing cars; they made an unusual number of phone calls; they carried a rather unreasonably large amount of cash.¹ All of these activities aroused the suspicions of the experienced peace officers. In addition to this, on the emergence from Mexico, the appellants took a taxicab to make a trip of sixty-seven miles over a route where public bus transportation was available. It is to be reremembered that all of these events occurred in a setting adjacent to the Mexican border where narcotics smuggling is prevalant. The appellants had just returned from Mexico where narcotics are known to be available. Details of the informer's report were independently corroborated by the officers. The informer had advised that the two Negro men were to arrive in Nogales on or about the 5th of June, 1967, and they did; he said they were in Nogales, Mexico waiting for the narcotics dealer, Martinez, to return, the officers knew the appellants to be in Mexico at the time. The appellants were similar in appearance to the men described by the informer as waiting in Mexico to make a purchase of narcotics. The informant advised that the sale had been made and a purchase price of $4,000.00 paid. Appellants were known to have at least this amount of money available. Very shortly thereafter the appellants crossed into the United States and were traveling by taxi from Nogales to Tucson, itself an unusual action.

Probable cause for arrest exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information prior to the arrest are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed by a person or persons so to be arrested. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Hollins v. United States, 9 Cir., 338 F.2d 227 (1964). Here the test of probable cause was amply met. The arrest was lawfully made with probable cause. It follows that the Court properly rejected the motion to suppress the evidence secured in a search incident to this lawful arrest.

It is strenuously urged that proof of possession of the contraband by the appellants was not shown. Concededly proof of possession in this case must rely on circumstantial evidence. However, the circumstantial evidence here is substantial. No package was present on the back seat of the police car when Riley and Marshall were placed therein. When they were taken out the package was seen. Additionally, Marshall was observed to have put his hand into his shirt and move it toward the back of his person. Shortly after they were taken from the police car, Riley, apparently unable to contain himself, asked if "the...