U.S. v. Ramos-Zaragosa, RAMOS-ZARAGOS

• Decision Date: 19 May 1975
• Docket Number: RAMOS-ZARAGOS,No. 74-2932,A,74-2932
• Citation: 516 F.2d 141
• Parties: UNITED STATES of America, Appellee, v. Jose Jesusppellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 141

516 F.2d 141

UNITED STATES of America, Appellee, v. Jose Jesus RAMOS-ZARAGOSA, Appellant.

No. 74-2932.

United States Court of Appeals Ninth Circuit.

May 19, 1975.

Richard Trujillo, Phoenix, Ariz., for appellant.

Michael B. Scott, Asst. U. S. Atty., for appellee.

OPINION

Before HUFSTEDLER and SNEED, Circuit Judges, and NIELSEN, ^* District Judge.

SNEED, Circuit Judge:

Appellant was charged with possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b). He was convicted in a trial without a jury and assigns as error the denial of his motion to suppress evidence. We reverse.

On April 9, 1974, an informer telephoned Special Agent George Cons and revealed that an old perhaps 1965 or 1966 green Ford station wagon or pickup with a white, homemade wooden shell camper was transporting heroin. It appears that the informer also notified Cons that the vehicle had California license plates.

Cons relayed the information to two officers of the Yuma City-County Narcotics Task Force, who later that day spotted a moving pickup, within the limits of the above description, with two occupants. The officers, driving an unmarked car, turned on the siren and a red dashboard light and approached on the left side of this pickup. The officer in the passenger seat of the unmarked car displayed his badge and gun through the window and ordered the occupants to put up their hands. The two vehicles traveled side by side, a few feet apart, at a speed of approximately 30-35 mph, for about 250-350 yards. One of the officers testified that he observed the passenger of the pickup reach inside her jacket, lean forward, and reach downward. He testified that appellant, the driver, was also leaning forward, as though he were shielding the passenger from the officers' view. Thereafter, the appellant and his passenger sat upright and the truck stopped.

Both were directed to get out. One of the officers went to the passenger side of the pickup, opened the door, leaned down onto the floorboard, looked under the front seat, and discovered a sack of heroin. The officer testified that the sack could have been seen by one sitting in the vehicle and leaning over the seat. The sack was not visible from outside the vehicle.

No pretrial motion to suppress was made. At trial, prior to taking of testimony, the following exchange took place:

MR. LEBOWITZ (Assistant U. S. Attorney): There have been two items marked.

Government's Exhibit 1, we will stipulate to this: It indicates the fact that the heroin in question was shipped to the chemist, that the analysis was made, and the result appears right on here. And I could read that into the record.

Here is the substance. That is Exhibit Number 2.

THE COURT: What is the stipulation?

MR. LEBOWITZ: Well, I think the stipulation would be that, first of all that Exhibit 2 is in fact the substance that was seized on April 9th, 1974, on or about. And that the particular substance in Exhibit 2 was sent to the Regional Laboratory in Dallas.

It was there analyzed, and it was determined that the exhibit contained 14.5 percent heroin, and that the weight of the substance was 192 grams. The gross weight was 193 grams. The net weight after the examination was 187 grams, and that it has not been tampered with since that time.

And actually we could just say that everything that appears in Exhibit Number 1 could take the place of the heroin itself, and if the Court would just as soon not take it into custody, we could then return it.

THE COURT: Well, since it is agreed that the substance in question is heroin, there is no reason that I see that the heroin needs to be part of the Clerk's file here.

MR. LEBOWITZ: Then with leave of Court, I would ask to withdraw it.

THE COURT: Can we agree to release that? Is it Exhibit 2?

MR. LEBOWITZ: Exhibit 2.

MR. TRUJILLO (Defendant's Counsel): Yes. I have no objection to its being released.

THE COURT: All right. Is the stipulation agreed to?

MR. TRUJILLO: Yes, your Honor. The stipulation as stated by counsel, it is accurate.

THE COURT: Exhibit 1, the paper, may be admitted, and Exhibit 2 may be released by stipulation.

MR. LEBOWITZ: And that the substance that was seized was in fact heroin.

MR. TRUJILLO: Yes.

THE COURT: Yes. So we don't need to keep it. For purposes of custody, it can be returned to the agent.

(R.T. 8-10.)

No motion to suppress the evidence was made at this time. Later, during the cross-examination of an agent, such a motion was made and, although the court expressed on several occasions the view that the above exchange together with the failure to move to suppress at the outset of the trial amounted to a waiver of appellant's rights to suppress the evidence the motion was taken under advisement.

At the conclusion of the trial, the court found the appellant guilty. In doing so the court reiterated its belief that the appellant's rights to suppress the evidence had been waived, but concluded that even if this were not the case, there was "probable cause to stop the vehicle" (R.T. 151) and that the seizure of the heroin was not unlawful. It is our view that the trial court acted quite properly in hearing the appellant's motion to suppress. Its error was the denial of this motion.

Our review of the entire record of this case convinces us that it would be unjust to treat the circumstances set out above as a waiver. Even if it be assumed that counsel for the appellant and the Government were engaged in palpable tactical maneuvers, it does not follow that in a non-jury trial such maneuvers should deprive the accused of a meaningful hearing on his right to suppress evidence. Such a hearing was afforded here.

The fact that the motion to suppress was untimely, of course, does not preclude our review of the trial court's ruling with respect to such an untimely motion. United States v. Wylie, 149 U.S.App.D.C. 283, 462 F.2d 1178 (1972); United States v. Seay, 432 F.2d 395 (5th Cir. 1970); United States v. DiRe, 159 F.2d 818 (2nd Cir. 1947), aff'd, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1947). Cf. Taglavore v. United States, 291 F.2d 262 (9th Cir. 19...