United States v. Bugarin-Casas, No. 73-1559.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: DUNIWAY and CHOY, Circuit , and RENFREW
• Citation: 484 F.2d 853
• Docket Number: No. 73-1559.
• Decision Date: 07 January 1974
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvador BUGARIN-CASAS, Defendant-Appellant.

484 F.2d 853 (1973)

UNITED STATES of America, Plaintiff-Appellee,
v.
Salvador BUGARIN-CASAS, Defendant-Appellant.

No. 73-1559.

United States Court of Appeals, Ninth Circuit.

August 15, 1973.

Certiorari Denied January 7, 1974.

Robert W. Ripley, Jr., Federal Public Defender (argued), San Diego, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty. (argued), Stephen G. Nelson, William A. Bower, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.

Before DUNIWAY and CHOY, Circuit Judges, and RENFREW,^* District Judge.

Certiorari Denied January 7, 1974. See 94 S.Ct. 881.

OPINION

DUNIWAY, Circuit Judge:

At about 7:30 on the morning of December 8, 1972, appellant Bugarin-Casas was driving a Ford station wagon alone along Interstate Highway 8 in southern California. Two Border Patrol agents

484 F.2d 854

on roving patrol, Henderson and Gilbert, were parked on the side of the highway observing traffic. That particular stretch of Interstate 8 was known by the agents to be an area with a high incidence of transportation of "illegal" aliens. When Bugarin's car passed by them, the agents noted that Bugarin appeared to be of Mexican descent, that he was apparently alone in the car, and that the car was "riding low" in the rear. Agent Gilbert was aware that a station wagon of that model had a compartment in the rear into which the back seats could be folded, and that aliens had been found hidden in such compartments. Their suspicions aroused, the officers stopped the car. The stop was made about twelve to fifteen miles from the Mexican border

Agent Gilbert approached Bugarin, who remained in the car, and asked his citizenship. Agent Henderson walked to the rear of the car. While Gilbert was questioning Bugarin, Henderson saw through the rear window that the floorboard panels covering the compartment were slightly ajar. Through a crack about an inch and a half wide he saw packages, wrapped in blue paper and covered by cellophane, underneath the panels. In his 16 years as a Border Patrol agent he had seen kilo packages of marijuana similarly wrapped "hundred of times," and he concluded immediately that the packages contained marijuana.

Gilbert told Bugarin to open the back of the station wagon. Bugarin got out of the car, opened the rear window of the station wagon, and then lowered the tailgate. Gilbert too saw the packages. The agents then opened the compartment and found a considerable quantity of marijuana. Bugarin was arrested.

A pre-trial motion to suppress the marijuana was denied. Bugarin was convicted of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a). On appeal Bugarin contends only that his motion to suppress should have been granted.

We delayed submission of the case pending decision by the Supreme Court of Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (June 21, 1973), because the government relied primarily on our decision in that case to sustain the search (United States v. Almeida-Sanchez, 9 Cir., 1971, 452 F.2d 459). In its decision, the Supreme Court held that border patrol agents, on roving patrol such as this one, cannot stop and search cars, pursuant to 8 U.S.C. § 1357 and 8 C.F.R. § 281.7, without probable cause or a warrant. We conclude, however, that Almeida-Sanchez does not control this case.

We have held that a stop may be made by such agents, based on a "founded suspicion," which may be less than probable cause. United States v. Barron, 9 Cir., 1972, 472 F.2d 1215; United States v. Roberts, 9 Cir., 1972, 470 F.2d 858; United States v. Brown, 9 Cir., 1970, 436 F.2d 702; Wilson v. Porter, 9 Cir., 1966, 361 F.2d 412. If after a valid investigatory stop probable cause arises, the search may then be made. United States v. Roberts, sup...