United States v. Petersen

• Decision Date: 18 January 1973
• Docket Number: No. 72-2123.,72-2123.
• Citation: 473 F.2d 874
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jared Rex PETERSEN et al., Defendant-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

473 F.2d 874 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. Jared Rex PETERSEN et al., Defendant-Appellees.

No. 72-2123.

United States Court of Appeals, Ninth Circuit.

January 18, 1973.

Ann Bowen, Asst. U. S. Atty. (argued), James E. Mueller, Asst. U. S. Atty., William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appellant.

Fredric F. Kay, Asst. Federal Public Defender (argued), Tom Karas, Federal Public Defender, Tucson, Ariz., Robert B. Norgren (argued), Tucson, Ariz., Paul W. Colarich (argued), of Laber, Lovallo &. Colarich, Tucson, Ariz., for defendant-appellee.

Before MERRILL and DUNIWAY, Circuit Judges, and CONTI,^* District Judge.

DUNIWAY, Circuit Judge:

The United States appeals from an order granting appellees' motion to suppress nine pounds of marijuana seized from them.¹ That seizure was the basis of an indictment charging them with illegally importing and possessing marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 952 (a). We affirm.

In its briefs, the government argued that there was probable cause for the search. However, at oral argument government counsel stated that the government does not claim that there was probable cause. It relies only on the theory that there was a valid "border search". We confine our attention to that theory.

On December 2, 1971, Deputy Sheriff Corona observed appellees enter the United States from Mexico through the port of entry at Naco, Arizona. They were in an orange Volkswagen sedan with California license plates. Corona saw Customs Inspector Alshouse search both the appellees and their car; they seemed nervous, but no contraband was found.²

In the evening of the next day, December 3, Alshouse informed Corona that the same Volkswagen had entered the United States through the port of entry, and that it was occupied only by the driver, one Manuel Silva. Corona considered Silva a suspicious person because he had been known to associate with narcotic addicts. At Alshouse's direction, Corona followed the car down Second Street in Naco. Proceeding along side streets to avoid detection, Corona saw the Volkswagen once, but then lost contact with it for a period of approximately ten minutes.

Second Street runs east from the port of entry in Naco, about a block from the international boundary and parallel to it. A right turn from Second Street takes one to the "corrals," an area frequently used by smugglers to transfer contraband brought in from Mexico, while a left hand turn leads directly to Highway 92, the main highway running north out of Naco. The Second Street area is rarely used for residential traffic, but it contains five houses, a school, and a post office. It does not appear whether Silva or any of his friends or relatives lived in one of the houses.

When Corona next saw the Volkswagen it had three occupants and was travelling north on Highway 92. He saw it stop at a market, where one of the passengers entered the store and returned with a small bag. Shortly thereafter, at the direction of a Customs agent with whom he had been in radio contact and with the aid of another deputy, Corona stopped the car. The driver, Petersen, produced a driver's license and identification at Corona's request, but refused to open the trunk. Corona then shone his flashlight into the car, saw that Geisler and Carpenter were seated in it, that Silva was not, and that an open paper sack containing a box of plastic baggies was on the floor. Corona communicated with Customs officials, one of whom was dispatched to the scene. After being informed of the foregoing facts, the agents searched Petersen for weapons and then searched the car, finding marijuana in the trunk.

The court held that the search was not a "border search." The government argues that it was because Corona, and hence the Customs agent who conducted the search, could be "reasonably certain of a probable smuggling offense."

The decisions of this court do not support the government's formulation of the test for a border search. It places too much emphasis upon the notion that the Customs agent need only be "reasonably certain," and is ambiguous with respect to what he must be reasonably certain about. Many of the crimes committed in border areas are "smuggling offenses," so that the Government's test appears to permit the search of a person and his vehicle at any time his actions could be characterized as suspicious. That is not the law. We do not mean to suggest that an officer cannot rely upon his experience in such matters to interpret the actions of persons whom he observes; our cases establish that quite the contrary is true. See, e. g., United States v. Markham, 9 Cir., 1971, 440 F.2d 1119, 1122. We simply are not prepared to hold that Fourth Amendment rights are completely abrogated as one approaches an international boundary.

Our cases establish two situations which will support a "border search" by Customs agents. The first test was stated in Alexander v. United States, 9 Cir., 1966, 362 F.2d 379:

"Where . . . a search for contraband by Customs officers is not made at or in the immediate vicinity of the point of international border crossing, the legality of the search must be tested by a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and

...