U.S. v. Alvarado
| Citation | 519 F.2d 1133 |
| Decision Date | 24 September 1975 |
| Docket Number | No. 75-1583,75-1583 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ramiro ALVARADO and Valentine Kalie, Defendants-Appellants. Summary Calendar. * |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Douglas Tinker, Donald B. Dailey, Kenneth L. Yarbrough, Corpus Christi, Tex., for defendants-appellants.
Edward B. McDonough, Jr., U. S. Atty., James R. Gough, Jr., Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Texas.
Before WISDOM, BELL and CLARK, Circuit Judges.
Defendants Ramiro Alvarado and Valentine Kalie seek reversal of their convictions for conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846. They attack the constitutionality of the border search leading to discovery of the prohibited substance and the correctness of two district court actions: (1) in taking judicial notice of facts found in a prior decision, and (2) in refusing to admit certain impeachment evidence. We have reviewed each of these contentions and find them to be without merit. Accordingly, we affirm.
Briefly recounted, the testimony at trial revealed that on May 5, 1973, a vehicle occupied by two unindicted coconspirators, Maria Isabel Salinas and Frone Fae Miracle, was stopped by United States Border Patrol agent Richard J. Powell pursuant to citizenship check at the Sarita, Texas, permanent checkpoint. While routinely inquiring into the citizenship of the two ladies, agent Powell was alerted by the strong scent of strawberry emanating from the car. Powell knew from experience that strong smelling sprays of various scents were often utilized to disguise or cover the smell of marijuana. Simultaneously, the agent noticed that Ms. Miracle was displaying "her feminine charms a little bit over-abundantly". Again, experience warned agent Powell that suggestive overtures by females were often used to distract an agent's attention. These indicia of suspect conduct caused him to request that the trunk be opened. The driver responded that she did not have a key. Agent Powell knew this to be still another method often used to secret illicit activity by persons who hoped that the agent would allow their vehicle to pass rather than to take the time and effort necessary to forcibly open the trunk. Aroused by this sequence of seemingly evasive maneuvers, Powell directed the automobile to a secondary inspection point for further inspection. His diligence was rewarded by discovery of some 290 pounds of marijuana hidden in the trunk of the vehicle.
At trial below, the two women testified that appellants had induced them to drive a car containing marijuana from McAllen, Texas, to Reviera, Texas, for 400 dollars. According to these witnesses, Alvarado issued the instructions and Kalie supplied the automobile.
On appeal both defendants argue that the search of the vehicle was unconstitutional. We disagree. In deciding the issue we are governed by pre-Almeida-Sanchez 1 precedent since this search occurred prior to the Supreme Court's pronouncement in that cause. 2 Under this precedent, the border "nexus" of the Sarita checkpoint is beyond dispute. E. g., United States v. Wooldridge, 508 F.2d 802 (5th Cir. 1975); United States v. Merla,493 F.2d 910 (5th Cir. 1974). We need only determine whether agent Powell had "reasonable cause to suspect" a customs or immigration violation. United States v. McDaniel, 463 F.2d 129, 132 (5th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973); Accord, United States v. Diemler, 498 F.2d 1070, 1072 (5th Cir. 1974). Clearly he had such reasonable cause here. The cumulative impact of the strong scent of strawberry, the apparent lewdness of Ms. Miracle's demeanor and the unavailability of a trunk key, clearly formed a reasonable basis for the suspicion that the trunk contained contraband. 3
Defendants next point contests the trial court's right to take judicial notice of the location, justification, and other physical aspects of the Sarita checkpoint as developed and analyzed by it in a prior criminal proceeding, U. S. A. v. Jose Ascension-Garcia, Criminal No. 72-C-82. Again, we find no error. Clearly the trial judge was warranted in taking judicial notice of immutable geographic and physical facts adjudicated in a previous proceeding. See Rule 201, Federal Rules of Evidence. Additionally, we see that these same facts have been noted previously by this court in United States v. Merla, supra. This facility of accepting what was plainly true could not abridge any Sixth Amendment right to confront witnesses.
Finally, Alvarado asserts...
To continue reading
Request your trial
-
Bayside Enterprises, Inc. v. Carson
...902. Second, under Fed.R.Ev. 201, the Court may judicially notice geographical distances and locations, see United States v. Alvarado, 519 F.2d 1133, 1135 (5th Cir. 1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1107, 47 L.Ed.2d 315 (1976), and to a great extent the plaintiffs' map serves sole......
-
State v. Guzman
...from the vehicle on a scale of one to ten when all the others had been fives, Robinson rated the odor as a nine. See United States v. Alvarado, 519 F.2d 1133 (5th Cir.1975) (use of air freshener was factor in establishing articulable suspicion at border patrol checkpoint), cert. denied, 424......
-
Fulton v. State
...effect that evidence of pending charges against a witness is inadmissible for impeachment purposes. See, e.g., United States v. Alvarado, 519 F.2d 1133, 1135 (5th Cir. 1975); Truman v. Wainwright, 514 F.2d 150, 152 (5th Cir. 1975); United States v. Madden, 482 F.2d 850 (8th Cir.), Cert. den......
-
U.S. v. Hughes
...but evidence of arrests or investigations is not admissible. United States v. Hodnett, 537 F.2d 828 (5th Cir. 1976); United States v. Alvarado, 519 F.2d 1133 (5th Cir.), cert. denied, 424 U.S. 911, 96 S.Ct. 1107, 47 L.Ed.2d 315 (1975). It was therefore proper to exclude this proffered Hughe......
-
§ 44.03 TYPES OF FACTS SUBJECT TO NOTICE: FRE 201(B)
...committee report as an official statement proper but not truth of statement contained therein).[56] United States v. Alvarado, 519 F.2d 1133, 1135 (5th Cir. 1975).[57] Government of Virgin Islands v. Testamark, 528 F.2d 742, 743 (3d Cir. 1976).[58] See Disabled Rights Action Committee v. La......
-
§ 44.03 Types of Facts Subject to Notice: FRE 201(b)
...F.2d 1060, 1063 (10th Cir. 1985) (judicial notice of court records of prior proceedings in the same case).[57] United States v. Alvarado, 519 F.2d 1133, 1135 (5th Cir. 1975). [58] Government of Virgin Islands v. Testamark, 528 F.2d 742, 743 (3d Cir. 1976).[59] See Disabled Rights Action Com......
-
§ 44.05 Criminal Cases
...draft). The provision to which this section of the Note refers was subsequently changed by Congress.[90] United States v. Alvarado, 519 F.2d 1133, 1135 (5th Cir. 1975) (court may judicially notice "immutable geographic and physical facts adjudicated in a previous...
-
§ 44.05 CRIMINAL CASES
...draft). The provision to which this section of the Note refers was subsequently changed by Congress.[88] United States v. Alvarado, 519 F.2d 1133, 1135 (5th Cir. 1975) (court may judicially notice "immutable geographic and physical facts adjudicated in a previous proceeding"). ...