United States v. Bates, 75-3187 Summary Calendar.

• Decision Date: 06 February 1976
• Docket Number: No. 75-3187 Summary Calendar.,75-3187 Summary Calendar.
• Citation: 526 F.2d 966
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank BATES, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 966

UNITED STATES of America, Plaintiff-Appellee, v. Frank BATES, Jr., Defendant-Appellant.

No. 75-3187 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 6, 1976.

Floyd W. Freed, III, Donald W. Bankston, Houston, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

Frank Bates was convicted by a jury of the importation of 2,798 Ionamin capsules and 11 bottles of Robitussin A-C cough syrup, both controlled substances under 21 U.S.C. § 952(a), and of possession of the capsules with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). In this appeal he argues that he was the victim of an illegal search and thus that his motion to suppress the contraband should have been granted. We find that the challenged search was conducted lawfully and we affirm the conviction.

The district court made the following findings regarding the search:

For purposes of the Motion to Suppress it appears that on April 14, 1975, at approximately 2:30 a. m. the Defendant Frank Bates, Jr. arrived at the Gateway International Bridge from the Republic of Mexico driving a 1974 Cadillac. Customs Inspector Mariam Medley, on finding out the Defendant's name, sent the Defendant to secondary inspection pursuant to a prior request from Drug Enforcement Administration Agent D'Antuono. At this point in time the Defendant was out on bond on a previous narcotics case and Agent D'Antuono had requested that he be notified in the event that the Defendant presented himself to any of the ports of entry along the Rio Grande River. Under the conditions of the Defendant's bond, he could not go to Mexico without prior approval from this Court.

Agent D'Antuono immediately came to the Gateway International Bridge and arrested the Defendant for violation of the conditions of his bond and took him to the Cameron County Jail. Because of the Defendant's prior record of narcotics dealings in the Republic of Mexico, Agent D'Antuono, along with Customs Agents, wanted to inspect the Defendant's vehicle. However, at this early hour of morning there was insufficient personnel to perform a search of the car immediately and it was at that time thought that the search would have to be delayed until 6:00 a. m. when more inspectors would come on duty. However, the Customs Inspectors were able to start searching the Cadillac sooner than they had originally thought and by the time that Agent D'Antuono had returned from leaving the Defendant at the Cameron County Jail the Customs Inspectors, principally Inspector Nowell, had discovered that the left rear tire of the automobile was visually different from the three remaining tires in that there was grease on the tire which indicated that the tire had been recently handled. Upon

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