United States v. Newman
| Decision Date | 06 February 1974 |
| Docket Number | No. 73-1540,73-1541.,73-1540 |
| Citation | 490 F.2d 993 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael Sherwood NEWMAN and Andrew Forga Coldwell, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John B. Jarboe, of Jarboe & Keefer, Tulsa, Okl., for appellant Newman.
Leslie L. Conner and James M. Little, Oklahoma City, Okl. (Leslie L. Conner, Jr., Oklahoma City, Okl., and Irvine E. Ungerman, Tulsa, Okl., with them on the brief), for appellant Coldwell.
Ben F. Baker, Asst. U. S. Atty. (Nathan G. Graham, U. S. Atty., N. D. Okl., with him on the brief), for appellee.
Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
Appellants Newman and Coldwell have directly appealed from their convictions for possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Jury trial was waived and the trial was before the United States District Court for the Northern District of Oklahoma.
Uncontroverted evidence introduced at trial revealed that at approximately one o'clock on the morning of September 1, 1972, Border Patrol Agent George Jackson was on duty observing traffic at a turnpike gate on the east end of the Will Rogers Turnpike near Miami, Oklahoma. He first observed appellants Newman and Coldwell as they approached the gate in a pickup truck bearing Texas license plates. The vehicle, which carried an attached camper shell, was driven by Coldwell. Newman and a large German Shepherd dog were seated beside him in the front of the truck. As Coldwell stopped the truck to pay his toll, Agent Jackson looked through a small window in the camper and espied a large container covered with clothes.
Jackson asked that the vehicle be pulled over to the side of the road and subsequently joined the appellants at a spot 40 or 50 yards from the turnpike gate. He asked Newman and Coldwell where they were from and they informed him that they were from Texas. They were questioned as to the ownership of the truck and Newman responded that it belonged to his brother. Coldwell was asked what was within the container in the back and he answered that it held mirrors. Jackson indicated that he wanted to look into the container because it was large enough to contain an alien. Coldwell advised him that a crowbar would be needed to open it and went to the front of the truck to get a lug wrench. He then returned to the rear of the camper shell and opened it. Agent Jackson entered the camper and observed a large deepfreeze, a large wooden box, and an antique trunk. Jackson also testified that he smelled the odor of marijuana when the rear of the camper was opened.1
Coldwell was unable to open the wooden container with the lug wrench. When Jackson informed him that he wanted to look inside the trunk also, Coldwell told him that he would have to get the key. He then returned to the cab of the truck, ostensibly to get the key, and departed abruptly with Newman. As they left, the deepfreeze and the trunk slid from the camper onto the highway pavement.
Jackson pursued in his patrol car and came upon the abandoned truck about a quarter of a mile up the road, but he was unable to find either of the appellants. After assistance arrived Jackson drove the truck, which still contained the wooden box, back to the turnpike gate. He subsequently opened all three containers, which were found to hold a total of approximately 741 pounds of marijuana. Newman and Coldwell were later apprehended and charged with the crime of which they now stand convicted. They have challenged these convictions on several grounds, but in the view which we take of this case we deem it unnecessary to consider each contention raised. We hold that the marijuana which provided the basis for these convictions was illegally seized pursuant to an illegal warrantless search conducted without probable cause. Its use as evidence was therefore improper and demands reversal.
The fact that the turnpike gate is located over 700 miles from the Mexican border clearly precludes consideration of this case as one involving a border search. Thus no peculiarly broad powers attach to the border patrol agent and the government's case here...
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