United States v. Jaime-Barrios, 73-3001

• Decision Date: 17 June 1974
• Docket Number: No. 73-3001,73-3002.,73-3001
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos JAIME-BARRIOS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rafael PINI-ORNELAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

494 F.2d 455 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Carlos JAIME-BARRIOS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rafael PINI-ORNELAS, Defendant-Appellant.

Nos. 73-3001, 73-3002.

United States Court of Appeals, Ninth Circuit.

March 25, 1974.

Certiorari Denied June 17, 1974.

Frank Ragan, Deputy Federal Public Defender, (argued), Charles M. Sevilla, Deputy Federal Public Defender, San Diego, Cal., for appellant.

Peter Nunez, Asst. U. S. Atty., (argued), Harry D. Stewart, U. S. Atty., Stephan G. Nelson, Robert P. Risso, Asst. U. S. Attys., San Diego, Cal., for appellee.

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

Certiorari Denied June 17, 1974. See 94 S.Ct. 3178.

PER CURIAM:

Appellants, Carlos Jaime-Barrios (Jaime) and Rafael Pini-Ornelas (Pini) have appealed from a judgment of the district court, sitting without a jury, adjudging each of them guilty as charged in Count Three (conspiring to possess with intent to distribute 939 pounds of marijuana) and Count Four (possession with intent to distribute 939 pounds of marijuana) of a four-count Indictment.

On August 2, 1973, appellants filed a motion to suppress the marijuana seized from the vehicles being driven by them and to sever their trial. After an evidentiary hearing, the motion to suppress and to sever was denied. Immediately thereafter, the case was submitted to the court upon the evidence introduced at the hearing on the motion to suppress by way of a stipulation of counsel and agreement of appellants. The court found appellants guilty as to the above mentioned counts and not guilty as to Counts One and Two of the Indictment.

Appellants contend that, under the undisputed facts and circumstances existing at the time the vehicles were stopped and searched, the trial court erred in failing to grant their motion to suppress.

The record reveals that on July 3, 1973, at approximately 6:30 A.M., Robert H. Dunlap, a Border Patrol Agent, accompanied by Agent Martinez, was patrolling the High Pass area of the International Border between the United States and Mexico. This is a remote area, fairly desolate, suitable for ranching, and on the date in question, there were only four residences between Tierra del Sol Road and East-West Road and Campo, six miles to the west. Agent Dunlap had lived in one of the residences for about two years and knew all of the persons living in the area, as well as being familiar with the vehicles they drove. The Tierra del Sol Road connects with the East-West Road at a point approximately 300 yards from the border and the East-West Road is approximately 100 to 150 yards from the border at the point it intersects with Indian Road. Dunlap testified that on many occasions he had apprehended persons smuggling aliens or marijuana on the Tierra del Sol Road; that the traffic on this road is extremely light and is normally that of residents of the area who usually operate 4-wheel drive vehicles or pickups.

When Agent Dunlap approached the above mentioned area, at approximately 6:30 A.M. on July 3, 1973, he encountered appellant Jaime at the intersection of the East-West Road and the Tierra del Sol Road driving a dark green 1969 Chrysler automobile at a faster rate of speed than normal on this very rough unimproved dirt road. As the cars passed each other, Dunlap got a good look at Jaime who was alone in the Chrysler.

Because of his experience in apprehending persons smuggling aliens and marijuana on this road, the early hour of the day, the fairly high rate of speed the vehicle was traveling on the rough dirt road, and because he did not recognize the vehicle or the driver, Dunlap and Martinez decided to turn around and stop the car. Dunlap testified that he had been on patrol in the area during the entire night and had not seen the Chrysler at any of the residences in the area, and since none of the houses had garages, it was unlikely that the vehicle might have been parked out of sight.

On cross-examination, Dunlap agreed that on weekends there was more traffic in the area in question because of campers and motorcycles; that the stop of appellants' vehicles took place the day before the Fourth of July; that it was possible the Jaime vehicle belonged to a visitor, relative or messenger of one of the four...