U.S. v. Tutwiler

• Citation: 505 F.2d 758
• Decision Date: 09 August 1974
• Docket Number: No. 74-1334,74-1334
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Euclid TUTWILER, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 758

505 F.2d 758

UNITED STATES of America, Plaintiff-Appellee, v. Euclid TUTWILER, Jr., Defendant-Appellant.

No. 74-1334.

United States Court of Appeals, Ninth Circuit.

Aug. 9, 1974.

Matthew N. Lees, San Diego, Cal., for defendant-appellant.

Richard E. L. Strauss, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Before CARTER and TRASK, Circuit Judges, and WHELAN, ¹ District judge.

OPINION

JAMES M. CARTER, Circuit Judge:

Defendant Tutwiler appeals from a judgment of conviction on two counts: (1) conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 846, and (2) possession of heroin with intent to distribute in violation of 21 U.S.C. 841(a)(1).

The seizure and arrest was made on February 23, 1973, at an immigration check point approximately 50 miles north of the Mexican border. Approximately five ounces of heroin were seized (the indictment alleges 112 grams) from the possession of defendant's companion, Eddie Leroy Anderson.

The trial court denied a motion to suppress. Defendant was convicted by a jury, but no issues are raised on appeal concerning the jury trial. Generally, the same evidence was presented as on the motion to suppress except for the references to the informers. At the trial, Anderson, previously indicted in a separate proceeding, testified for the government against defendant, to the effect that he, one Nichols and the defendant had agreed to travel to Mexico to secure heroin; that he (Anderson) and Nichols each put up one-half of the money for the purchase; that defendant was to receive one-third of the heroin for having the necessary contacts in Mexico and for making the arrangements; that they obtained the heroin the night before, hid it under a palm tree, and on the morning of the arrest, defendant picked up the heroin near the tree and handed it to Anderson, who placed it in his waistband.

The government's attempt to sustain the search and seizure as the result of a 'pat down' for weapons, fails. Its attempt to claim an 'extended border search' fails because of interruption in keeping a complete surveillance of the defendant and his companions northward from the border.

However, there was probable cause for the search, seizure and arrests, and the fact that the customs agents decided to utilize the check point for safety reasons does not negate their probable cause to search, seize and arrest.

Customs agent Espinoza, on February 23, 1973, secured information from an informant that defendant had purchased approximately five ounces of heroin in Mexicali, Mexico, and that delivery was to be in Calexico or Brawley, California.

Agents observed defendant and his companions, Anderson, Dixon and Nichols, enter the United States at the Calexico port of entry. The four men and the Cadillac car they were in were searched and no contraband found. Surveillance of the car and the men was then started.

Previously, the same informant had supplied information that about January 11, 1973, the defendant had purchased two ounces of heroin in Mexico; that on January 23, 1973, the defendant and Nichols were in Mexicali, Mexico, to buy heroin and that delivery was to be made in the United States; that on January 25, 1973, defendant and Nichols purchased four ounces of heroin and that it was to be delivered in Brawley, california. Defendant and Nichols had left the area by the time the agent received this latter information.

A surveillance of defendant and his companions on January 11, 1973, and four days thereafter produced no results.

On January 23, 1973, defendant and Nichols crossed the border into the United States. Nichols was searched and had $3,000 cash on his person. On January 24, 1973, he was again searched on crossing the border, and the cash was gone.

The defendant was driving the Cadillac automobile on both January 11 and January 23, 1973.

Information was also supplied by a second informant on February 21, 1973, that defendant was en route from Northern California to Calexico to purchase heroin in the same Cadillac he had been observed in on Manuary 11 and on January 23, 1973.

The informants were both shown to have been reliable and the agents testified 'in camera' as to the basis for the informants' information. The two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and ...