United States v. Jackson, 23084

• Decision Date: 26 May 1970
• Docket Number: No. 23084,23085.,23084
• Citation: 423 F.2d 506
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie Calvin JACKSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roberto HERNANDEZ-MACIAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

423 F.2d 506 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Willie Calvin JACKSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Roberto HERNANDEZ-MACIAS, Defendant-Appellant.

Nos. 23084, 23085.

United States Court of Appeals, Ninth Circuit.

March 5, 1970.

Rehearing Denied April 29, 1970.

Rehearing Denied May 26, 1970.

Benjamin Lazarow (argued), Tucson, Ariz., for appellant, Jackson.

Gordon T. Alley (argued) Tucson, Ariz., for appellant, Hernandez-Macias.

Jo Ann D. Diamos (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Tucson, Ariz., for appellee.

Before BROWNING, DUNIWAY and CARTER, Circuit Judges.

Rehearing Denied in No. 23085 April 29, 1970.

Rehearing Denied in No. 23084 May 26, 1970.

DUNIWAY, Circuit Judge:

Jackson and Hernandez-Macias appeal from a conviction under 21 U.S.C. § 174.¹ Their primary contention is that the customs agents did not have probable cause² to stop and search the car in which the heroin was found. We affirm.

Jackson registered at the Arroyo Motel in Nogales, Arizona, on January 20, 1968, under the name of James Smith. He did not fill in a car license number on the registration form. However, later he parked a Chevrolet in the space outside his assigned room. The owner of the motel recognized the car, and thought that Jackson was the same person who had registered at his motel three weeks before as Louis Brown and asked to rent a room for only two hours. He therefore called Customs Officer Swindler, who came to the motel at about 6:30 P.M. Swindler and other agents put Jackson's room under surveillance.

Eventually Jackson received a phone call, left the motel, drove around the corner and picked up a passenger, Hernandez-Macias. The car then took a very circuitous route through and around the downtown Nogales area, made a U-turn, and started toward Tucson, all the while followed by from one to four customs vehicles. The customs cars were unmarked and the agents wore no uniforms. After he had been informed by radio that the motel room had been completely vacated, Swindler drove his car alongside Jackson's and flashed a pulsating red light at Jackson, and ordered him to pull over. At the same time one of the other customs cars activated a siren. Instead of stopping, Jackson pulled over on the extreme right edge of the road and slowed to about 45 miles per hour. Hernandez-Macias leaned over and opened the right-hand door, activating the dome light. The door was shut and Jackson accelerated again, reaching a speed of 80 miles per hour before Swindler stopped him, by forcing the car to the side of the road. No one saw a parcel drop from the car, and a later search of the roadside was fruitless.

After the car was stopped, the occupants were given a quick pat search. Then agent Cavitt began searching the car. At this point Jackson asked for his sweater, which was on the back seat of the car. While fetching the sweater Cavitt found a package on the floor of the car behind the front passenger seat. The agents opened the package and discovered heroin. Then Agent Swindler put the two men under arrest.

It is clear that the appellants' conduct after the agents attempted to stop them gave the agents probable cause to believe that a crime was being committed. Appellants claim however, that such actions cannot be considered in weighing the validity of the search, because the activation of the red light was an arrest, and probable cause must have existed before that time to make the search valid.

This circuit has already considered the effect of flashing lights in order to stop a vehicle. In Wilson v. Porter, 9 Cir., 1966, 361 F.2d 412, we said:

"We conclude that no right of the appellee was violated when the officers stopped the car and that the subsequent seizure of the evidence upon which he was convicted was justified as pursuant to a lawful arrest. While it is clear that at the time appellee\'s car was pulled over probable cause for an arrest did not exist, it is also clear that not every time an officer sounds his siren or flashes a light to flag down a vehicle has an arrest been made. * * *

We take it as settled that there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Busby v. United States, 296 F.2d 328 (9th Cir. 1961). A line between reasonable detention for routine investigation and detention which could be characterized as capricious and arbitrary cannot neatly be drawn. But due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their action. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing." (361 F.2d at 414-415.)

See also State v. Gunter, 1966, 100 Ariz. 356, 414 P.2d 734, 737-738.

The agents had been told that Jackson had...