United States v. Cervantes, Crim. No. 25755.
| Citation | 174 F. Supp. 398 |
| Decision Date | 16 June 1959 |
| Docket Number | Crim. No. 25755. |
| Parties | UNITED STATES of America, Plaintiff, v. Luis L. CERVANTES, Defendant. |
| Court | U.S. District Court — Southern District of California |
Laughlin E. Waters, U. S. Atty., by Peter J. Hughes, Asst. U. S. Atty., San Diego, Cal., for plaintiff.
Oscar F. Irwin, San Diego, Cal., for defendant.
In February of 1956 defendant was tried and convicted of the offense of smuggling heroin and marihuana. After the trial had begun, the defense made a motion to suppress the use as evidence of narcotics and a hypodermic syringe on the ground that the same was procured by illegal search and seizure.
A hearing was had on oral testimony outside the presence of the jury, at which Customs Agent Kenneth Grant testified, and the Court denied the motion.
On January 21, 1959, the Court of Appeals of the Ninth Circuit handed down its decision, and ordered:
"The judgment is reversed and the cause is remanded with directions to grant appellant a new trial, or, in the discretion of the trial court, to dismiss the action."
The defendant being an indigent, counsel was appointed, at his request, to defend him.
On March 30, 1959, counsel for the defendant moved to dismiss the indictment, which motion was denied and a new trial granted.
On April 16, 1959, defendant moved to suppress as evidence certain heroin, hypodermic syringe and marihuana seeds seized on December 8, 1955, on the ground that said property was unlawfully seized against the will of the defendant and without a search warrant.
A hearing was had at which the oral testimony of the officer making the seizure, Clifford J. Davis, and Customs Agent Kenneth Grant was heard. On motion of the defendant the testimony at the hearing was ordered transcribed at the expense of the government.
Upon the filing of the transcribed testimony and after arguments of counsel, the Court denied the motion and this memorandum is filed with reference to the denial of such second motion to suppress.
At said hearing the evidence disclosed that on December 8, 1955, Clifford J. Davis, a patrol inspector of the Immigration and Naturalization Service and also an authorized customs inspector, stopped the defendant in his automobile near San Clemente, California, on Highway 101. 101 is a main highway between the Mexican Border and Los Angeles, California. Mr. Davis testified that he stopped the automobile because he had received directions from the United States Customs officials of San Diego so to do. That he did not have a warrant for the arrest of the defendant nor for the search of the defendant or his automobile.
Mr. Davis stated that when the defendant stopped his automobile in response to a siren and red light of the officer, the defendant was asked to alight from the automobile. Upon alighting, Mr. Davis noticed that the defendant appeared to be under the influence of narcotics. He made no objection to the search of his person, which search revealed heroin, a syringe and an eye dropper. Search of the automobile disclosed a secret compartment containing a small amount of marihuana.
Mr. Kenneth Grant testified that he had been in the employ of the United States Custom Service since 1940 and most of the time had been stationed near the Mexican Border; that more arrests for narcotics are made at the port of entry at San Ysidro (near San Diego) at the Mexican Border than anywhere else in the United States; that Tijuana, Mexico, adjoining the said Port is considered to be the chief source of supply for marihuana and also supplies a large proportion of the heroin imported illegally, and that 75% of the narcotics so imported are destined for places further north than San Diego, California. Mr. Grant testified that he had alerted the officers who stopped Cervantes because he had received certain information from an informant which led him to believe that Cervantes was carrying narcotics or marihuana. That his informant was a man whom he had known for about five years prior to 1955. That several convictions in Federal court had resulted from information given Grant by this informer. That when the informer "suspected" that a person might be engaged in dealing with narcotics, he so stated, and not always had the suspicions been verified, but that Grant had never found the informant wrong when he stated he "knew."
Mr. Grant further testified that he had been acquainted with a person named Manuel Vargas, whom Grant knew to have been dealing in narcotics since 1946. That during 1945, Vargas frequented a bar known as "La Officina" in Tijuana, and had his headquarters on First street near said bar. That the informant told Grant that when Vargas made a sale of narcotics or marihuana he would get drunk and would talk about the sale. The informant also told Grant that Vargas had boasted that he had a regular customer from Los Angeles named "Luis" who bought marihuana regularly in large quantities and who had a secret compartment built in his car especially for the purpose of carrying the marihuana. That the man known as Luis drove a green car, which might be a Dodge or a Plymouth and its license number was possibly 1W-4752 or 1W-47537. And that the informant had seen Luis in company of Vargas.
Mr. Grant stated the first information as to "Luis" came to him from the informant on September 27, 1955, by telephone. Mr. Grant posted a "lookout" at the border port of entry into the United States at San Ysidro by giving the officers of the Customs Service on duty at that point the two license numbers that he had been given by the informant. Grant then went to Tijuana about 2 p. m. on that day, and spent several hours looking around for either Vargas or the described car. About 5 or 6 o'clock, Grant located Vargas in the bar known as La Officina, but did not see the defendant. Grant then contacted his informant and told him that if the informant learned anything further that Grant would be available at a certain place. He also discussed with the informant the "secret" compartment, and the informant told Grant that "Luis" had a compartment in his car large enough to carry 20 kilos of marihuana.
Grant testified that he had many conversations with the informant on this subject between September 27 and December 8. After September 27, Grant told the informant that the officers at the port of entry had not stopped any car as was described, and the informant stated that "He is coming regularly and we will get him next time." "If he gets through once, he will be back again." Grant testified that the informant also told him that he was sure "Luis" was a user of heroin, but that he did not know where the heroin was obtained, and that Luis came to Tijuana about once a week from Los Angeles for marihuana.
That between September 27, and October 28, Grant saw his informant several times and gave him his home and office telephone so that the informant could reach him day or night, and told him to let Grant know as quickly as possible the next time the car was in Tijuana.
On October 28 the informant telephoned Grant and stated that the automobile and the driver were in Tijuana, and that if Grant could come down, the informant would point out the car. Grant proceeded to Tijuana. The informant told Grant that he, the informant, had misread the license number, and gave Grant the corrected number.
The informant also pointed out the automobile and Grant walked past the automobile and saw the defendant in it. That was the first time Grant saw the defendant. He checked the license number, and noted that it was the corrected number which the informant had given him. He testified that the informant said Cervantes had come to Tijuana looking for Vargas, but that Vargas was in Mexico City. Grant remained in Tijuana most of the afternoon and observed Cervantes at a distance but later lost him in traffic.
Grant testified that he had again placed a look-out for the automobile at the San Ysidro port of entry, but that a check with the officers there revealed that they had not seen the described carpass through such port.
After October 28, Mr. Grant submitted the corrected license number to...
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Cervantes v. United States
...Procedure, 18 U.S.C.A., to suppress the evidence to which reference has been made. This motion was also denied. United States v. Cervantes, D. C., 174 F.Supp. 398. All subsequent motions and objections made during the trial in an effort to exclude this evidence were likewise denied or On th......