United States v. Ardle

Decision Date04 February 1971
Docket NumberNo. 25791.,25791.
Citation435 F.2d 861
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael Robert ARDLE, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

John E. Lindberg (argued), of Price, Tinney, Lindberg & Gianas, Tucson, Ariz., for defendant-appellant.

John R. Lindberg (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., James M. Wilkes, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Before HAMLEY, BROWNING and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

Prior to his jury trial on a charge of violating 21 U.S.C. § 174, illegal transportation and concealment of heroin, Ardle moved to suppress certain crucial evidence. The motion was denied, was renewed at trial and again denied, and Ardle was convicted. Ardle now appeals contending that his motion to suppress should have been granted. We affirm.

The pretrial motion was submitted on a stipulation of facts and an affidavit of Ardle. At trial, there was relevant oral testimony by customs agents. In passing upon a claim of error such as this one, an appellate court "will not ordinarily limit itself to the testimony received at a pretrial hearing, but will also consider pertinent testimony given at the trial." Rocha v. United States, 9 Cir., 1967, 387 F.2d 1019, 1021. The following statement of facts is therefore based upon the stipulation, the affidavit, and the trial testimony.

Before 8:00 P.M. on September 30, 1969, Customs Agent Holgerson at Nogales had received a tip that one Kip Zech and another person would be travelling to Nogales, Sonora, in a green Volkswagen sedan or "bug," for the purpose of purchasing heroin. The informant had not previously provided any information; in other words, the informant was not known to be reliable. Zech, however, was known to some customs agents at Nogales. The informant said that there would be a second male occupant in the car.

As the result of the tip, a lookout was posted at about 8:30 P.M. The next morning, October 1, at about 3:30 A.M., Customs Agents Ciminelli and Timilty were watching the street running into Mexico, and saw a light green Volkswagen bug, license No. LHL-299, enter Mexico from the United States. There were two young males in it, the driver and a passenger. Neither officer could identify either of the occupants, but Timilty did observe that the passenger had "long, very long, hair."

At about twenty minutes to eight that same morning, Timilty saw "a male, tall, hippie-type, long hair," making an entry from Mexico on foot. Timilty then drove over to the port of entry, where he saw the Volkswagen. It had been driven across the border at about a quarter to eight. Only one person, Ardle, was in it. Ciminelli searched the car and Ardle's person, but found no contraband. From Ardle's driver's license, Timilty learned that he was from Tucson. Timilty left and drove his car to a position about six miles north of Nogales, on the Tucson highway, where he waited. Just after he left the port of entry, Timilty saw the same long-haired man walking north on Grand Avenue in Nogales.

After Timilty left, Ardle was permitted to leave. Ciminelli followed him in an unmarked car. At the corner of Grand Avenue and Court Street, he was stopped by a red light, and lost track of the Volkswagen. He saw a man with very long hair, a "beatnik type," standing on the corner. Ciminelli had not seen the man before, but he was later identified to Ciminelli as Kip Zech.

About five minutes after Timilty took up his vigil north of Nogales, the Volkswagen came by him. It had two occupants; one was Ardle, who was driving. The other was the man Timilty had seen walk...

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    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 3, 1972
    ...must be directly related to an entry across a border. A search that is not so related requires probable cause, see United States v. Ardle, 435 F.2d 861, 862 (9th Cir. 1971); United States v. Kandlis, 432 F.2d 132, 135 (9th Cir. 1970); for, to repeat, "those lawfully within the country, enti......
  • U.S. v. Peltier
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 9, 1974
    ...upon: (a) probable cause to believe that the automobile stopped was carrying illegal aliens or contraband, see e.g., United States v. Ardle, 435 F.2d 861 (9th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1638, 29 L.Ed.2d 116 (1971); cf. United States v. Kandlis, 432 F.2d 132 (9th Cir. 1......
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    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 22, 1980
    ...arrest individuals upon mere suspicion opens the door to the worst sort of discriminatory abuse of police power. E.g., United States v. Ardle, 435 F.2d 861 (9th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1638, 29 L.Ed.2d 116 (1971) (long hair of suspect considered as a factor giving c......
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    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 10, 1978
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