United States v. Portillo, 72-1141

• Decision Date: 22 November 1972
• Docket Number: 72-1142 and 72-2104.,No. 72-1141,72-1141
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel Ray PORTILLO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rocky Albert RUELAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gilbert Adolph PORTILLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

469 F.2d 907 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Samuel Ray PORTILLO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rocky Albert RUELAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gilbert Adolph PORTILLO, Defendant-Appellant.

Nos. 72-1141, 72-1142 and 72-2104.

United States Court of Appeals, Ninth Circuit.

November 22, 1972.

Michael A. Lacagnina (argued), Albert D. Noe, of Bilby, Thompson, Shoenhair & Warnock, Tucson, Ariz., W. Edward Morgan (argued), Jack I. Redhair, of Chandler, Tullar, Udall & Richmond, Tucson, Ariz., for defendants-appellants.

David Hoffman, Asst. U. S. Atty. (argued), Stephen McNamee, Asst. U. S. Atty., Wm. C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Before BARNES, DUNIWAY and TRASK, Circuit Judges.

TRASK, Circuit Judge:

We consider three separate appeals arising from the same set of facts, each from convictions of narcotic and marijuana violations under 21 U.S.C. § 841 (a)(1). The district court had jurisdiction under 18 U.S.C. § 3231. Rocky Ruelas was found guilty by the court on evidence adduced on a motion to suppress which was stipulated to be controlling. Samuel Portillo was found guilty in a jury trial and Gilbert in a trial to the court.

At the hearing on the motion to suppress it was developed that on July 29, 1971, at approximately 8:00 p. m., Special Customs Agent Seaver reported for duty at the port of entry at Lukeville, Arizona. He was informed by Customs Inspector Felix that a man by the name of Samuel Portillo had just cleared the port of entry declaring a bottle of tequila and that his name was submitted to the computer (known as CADPIN) and the computer data center reported that the subject (Portillo) was a possible smuggler of contraband into the United States. Agent Seaver was also informed by Felix that the automobile was clean, the driver was the sole occupant and he was driving a 1969 Rambler Ambassador. Agent Seaver and another officer then decided to follow Portillo's car and had it in plain view at a Lukeville gas station. When the Portillo car left the gas station heading north toward Why, Arizona, Agent Seaver allowed the vehicle to get less than one mile ahead before he started out. Nearly immediately, however, Agent Seaver lost sight of the Portillo vehicle. He then proceeded at speeds of up to 100 miles per hour to the town of Why, nearly 28 miles north of Lukeville. During the high speed trip, Seaver was unable to see the Portillo car. The only roads leading off the highway between Lukeville and Why, Arizona are the Organ Pipe National Monument Road and Puerto Blanco Drive. The latter is approximately a mile north of the port of entry and the former approximately 6 miles north of the port of entry.

Agent Seaver then returned south along the highway and maintained surveillance. At about 11:20 p. m., he saw the Portillo Rambler traveling north again at a high speed followed closely by a Ford LTD. Agent Seaver noticed that the Rambler was now carrying more than one person. Seaver then followed the two vehicles passing the Ford to get behind the Rambler until it pulled off the highway at a rest area, where Seaver followed, identified himself to the passengers and conducted a search. With Samuel Portillo in the Rambler were his two brothers, Gilbert and Robert. The search of the trunk of the Rambler revealed no drugs or contraband, but Seaver noted that there was an extra spare tire. Upon a patdown search of the three passengers Seaver found a piece of paper on Gilbert Portillo subsequently identified as the rental agreement on the Ford LTD. About a minute or two after the search of the Rambler and its occupants, the Ford LTD pulled into the rest area behind the Rambler.

Seaver then approached the driver of the LTD and told him that he wanted to conduct a search for contraband. As he went to the trunk of the car to conduct the search, Seaver noticed an orange package on the seat which looked to him like a brick of marijuana, similar to many he had seen with the same type wrapping. Upon opening the trunk, he found over three hundred pounds of marijuana. Later, the orange package was opened and was found to contain over three pounds of cocaine. Upon discovery of the marijuana all of the defendants were formally arrested.

At trial, Seaver also testified that he had had experience with smuggling in the Lukeville area and that the Puerto Blanco Drive area is notorious for its smuggling activities. He stated that when he saw the Rambler being followed closely by the Ford, it looked to him like a "lead car-load car" situation often found in smuggling operations. He also noticed that the Ford was riding low, although he did not indicate this fact in his report submitted following the search and arrest of all four occupants of the Rambler and Ford.

The district court admitted the evidence obtained from the searches finding that they were justified either as border searches or as searches based upon probable cause. We consider each.

As to the Rambler, it cleared an inspection at the port of entry with a bottle of tequila declared and an unfavorable computer data report that the government admitted at oral argument was unreliable. The agents had the vehicle under surveillance about one-tenth of a mile ahead as it was leaving town but they lost sight of it immediately. A three hour interval elapsed until the Rambler was again sighted going north at a high rate of speed. The vehicle now contained more than one occupant. It was "followed closely" by another vehicle, although not so closely but what the agent could pass between the two and follow the Rambler to a point 28 miles above the border where it halted, and it and its occupants were searched.¹ Appellees would justify this search as a border search upon the authority of United States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971), where we said:

"We also think that, if customs agents are reasonably certain that parcels have been (a) smuggled across the border and (b) placed in a vehicle, whether the vehicle has itself crossed the border or not, they may stop and search the vehicle. Similarly, if the agents are reasonably certain that a person has crossed the border illegally, and has then entered a vehicle on this side of the border, we think that they may stop and search the vehicle and person. They can assume that he may have brought something with him." 432 F.2d at 1323.

The difficulty with the analogy is that the facts here do not track the facts in Weil. There the car was recently rented on a credit card of a person other than the driver; the driver's license was irregular; the driver claimed he was a photographer, but carried no equipment; and the car was coming out of Puerto Blanco Drive, a smuggler's area. Here, Samuel Portillo was driving his own car; there was no suggestion that his driver's license or any other papers were irregular; and there was no evidence that he had been down Puerto Blanco Drive after Seaver had lost him going out of town. Puerto Blanco Drive was one of a number of possibilities, but the vehicle was not observed to have entered the Drive, to have exited the Drive or to have been upon it. Giving credit to all inferences in favor of the jury verdict, we find nothing in the case against the Rambler or its owner and operator that would justify the search as a border search under Weil...