U.S. v. Anderson

• Decision Date: 20 September 1974
• Docket Number: No. 74--1029,74--1029
• Citation: 509 F.2d 724
• Parties: UNITED STATES of America, Appellee, v. Eddie Leroy ANDERSON, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 724

509 F.2d 724

UNITED STATES of America, Appellee, v. Eddie Leroy ANDERSON, Appellant.

No. 74--1029.

United States Court of Appeals, Ninth Circuit.

Sept. 20, 1974.

As Amended Jan. 2, 1975.

Certiorari Denied Jan. 27, 1975.

See 95 S.Ct. 831.

Joseph A. Milchen, (argued), San Diego, Cal., for appellant.

Douglas G. Hendricks, Asst. U.S. Atty. (argued), San Diego, Cal., for appellee.

Before HUFSTEDLER and GOODWIN, Circuit Judges, and NEILL, ^* District Judge.

OPINION

ALFRED T. GOODWIN, Circuit Judge:

Eddie Leroy Anderson appeals his conviction for possession of heroin, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He contends that the evidence should have been suppressed as the product of an illegal search. We reject this contention, and affirm.

On February 21 and 22, 1973, an agent of the United States Customs Service learned from two informants that a man named Tutwiler was en route to the area near Calexico, California, to purchase heroin. Soon afterward, one of these informants told the agent that Tutwiler had purchased five ounces of heroin in Mexicali and that the heroin would be delivered in Calexico or Brawley.

Early in the morning of February 23, Tutwiler, Anderson, and two other men entered the United States from Mexico at the Calexico port of entry. After a cursory search produced nothing, the men and the vehicle were permitted to leave the border station but they were followed by customs agents. The car was driven 25 miles north to Brawley, where it stopped near various bars, a service station, a motel, and then a cafe. Shortly before noon, the four men left Brawley driving south. Two miles south of town, they turned around and returned part of the way to Brawley. Tutwiler stopped the car on the shoulder of the road near a lone palm tree. He left the car, looked up and down the road for traffic, and then apparently retrieved a small package from beneath a limb of the palm tree. Tutwiler returned to the car and drove back north through Brawley. At the border-patrol checkpoint north of town, Tutwiler and his companions were searched; four ounces of heroin were found hidden in Anderson's waistband.

The government contends that this warrantless search can be justified on any of three separate grounds: (1) an extended border search, (2) a 'patdown' search after a stop based upon a founded suspicion, or (3) a search supported by probable cause.

I. Extended Border Search

Extended border searches in this circuit fall generally into two categories: Alexander searches, and Weil searches. See generally United States v. Kessler, 497 F.2d 277 (9th Cir. 1974). Under Alexander v. United States, 362 F.2d 379 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966):

'* * * the legality of the search must be tested by a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of search was aboard the vehicle at the time of entry into the jurisdiction of the United States * * *.' 362 F.2d at 382.

Breaks in surveillance are permitted under Alexander when other circumstances establish with reasonable certainty that the goods discovered upon search of the suspect or his vehicle were goods under his control when he entered the country. See, e.g., United States v. Mejias, 452 F.2d 1190, 1193 (9th Cir. 1971); Castillo-Garcia v. United States, 424 F.2d 482 (9th Cir. 1970). However, where the amount of contraband is small, and where it is not inaccessible, even a very brief lapse in surveillance prevents customs agents from relying upon Alexander. See, e.g., United States v. Petersen, 473 F.2d 874, 876 (9th Cir. 1973).

Here, a quantity of heroin approximately the size of two quarterpound sticks of butter was found concealed in Anderson's trousers. Because of a number of men seen entering and leaving Tutwiler's car after it had entered this country, and in view of the breaks in surveillance, it cannot be said that there was a reasonable certainty that the heroin found on Anderson was in the car at the time it crossed the border. Indeed, it is more reasonable to infer that Tutwiler picked up this contraband at the palm tree outside Brawley and gave it to Anderson. Hence, the search cannot be justified as an extended border search under Alexander.

Nor can the search be justified under United States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert. denied 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971). Under Weil a search north of the border will be considered to be the equivalent of a border search where it appears with reasonable certainty that the vehicle contained goods which have been smuggled or a person who has crossed the border illegally. See also United States v. Markham, 440 F.2d 1119, 1121--1123 (9th Cir. 1971).

After the Weil decision, we held in United States v. Vigil, 448 F.2d 1250 (9th Cir. 1971), that the car searched need not have recently crossed the border 'if it is 'reasonably certain' that it contains goods or persons which have just crossed the border illegally.' 448 F.2d 1251 (emphasis removed and added). Here the officers were reasonably certain that Tutwiler had retrieved narcotics from the palm tree, but knowledge that the narcotics had just crossed the border was problematic. The officers knew that Tutwiler was transacting business with smugglers in Mexico, but that knowledge was too generalized to provide a Weil rationale for an extended border search. See Note, From Bags to Body Cavities: The Law of Border Search, 74 Colum.L.Rev. 53, 69--70 (1974).

II. Founded Suspicion and Probable Cause

Next, the government contends that even if the search was not valid as an extended border search, the agents still had a founded suspicion entitling them to stop the vehicle in order to investigate Anderson and his companions. See United States v. Jaime-Barrios, 494 F.2d 455 (9th Cir.) cert. denied, 417 U.S. 972, 94 S.Ct. 3178, 41 L.Ed.2d 1143 (1974); United States v. Bugarin-Casas, 484 F.2d 853 (9th Cir. 1973), cert. denied 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974). Having stopped them, the government argues, the agents had a right to check for weapons. We need not decide whether the stop was legal in the absence of probable cause to arrest Tutwiler, who had been the subject of intermittent customs surveillance for nearly six weeks. The agents had probable cause to stop the car, arrest the occupants, and search for contraband. Whether the transaction was an arrest, or an investigatory stop, it was supported by probable cause. To find probable cause, the trial court had to examine the credibility of the informants who caused the Customs Service to initiate surveillance of Tutwiler and company.

The first informer told a customs agent on January 11, 1973, that Tutwiler was in Mexicali looking for a heroin supplier. Later that day Tutwiler was observed in Calexico, just across the line from Mexicali. The next day the informer told the customs agent that Tutwiler had bought some heroin in Mexicali. Although Tutwiler was followed for the next four days and searched every time he returned to the United States, the heroin was never found.

On January 23, 1973, the same informer told the customs agent that Tutwiler was back in Mexicali to buy more heroin for delivery in Calexico or Brawley. That day, Tutwiler entered the United States at Calexico. Three thousand dollars were found on Tutwiler's companion; the next day, when Tutwiler's party was again searched at the port of entry, the money was not found. Surveillance was ended on the night of January 25. Later that day, after Tutwiler had left the area, the informer reported to the customs agent that heroin had been thrown over the border fence at Calexico and delivered to Tutwiler in Brawley.

On February 22, 1973, this same informant told the Customs Service that Tutwiler was again en route to Mexicali to purchase heroin. The next day, the informer said that Tutwiler had bought approximately five ounces of heroin in Mexicali that would be delivered in Calexico or Brawley. As predicted, Tutwiler, Anderson, and two other men entered the United States at Calexico. As noted earlier, this odyssey ended in the arrest and search presently being challenged.

The agent with whom the informant had been working testified that he considered the informant to be reliable. He had received information from the informant approximately seven times since the first of January. This information proved to be accurate, and resulted in one arrest. The agent testified in chambers to his knowledge of the informant's methods and the manner in which the informant obtained his information.

The second informant first implicated Anderson on February 21, 1973, when he told another federal agent that Tutwiler, Anderson, and another man were scheduled to travel soon to Mexico to purchase some heroin. This informant described Tutwiler's auto and gave its license number. This agent testified that the informant had provided valid information in approximately seven other narcotics investigations; every case resulted in an undercover buy of heroin and an arrest. Again in chambers, the agent testified how the second informant had obtained his information. The court concluded that the informant was, in fact, reliable.

Anderson challenges the propriety of in camera hearings to determine the bases for the informants' knowledge. Under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States,393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), for an informant's tip to provide grounds for a finding of probable cause, law-enforcement officers must establish both the reliability of the informant as well as the reasons for trusting the conclusions made by the...