United States v. Powell, 71-1690
| Decision Date | 31 August 1971 |
| Docket Number | No. 71-1690,71-1691.,71-1690 |
| Citation | 449 F.2d 335 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Edward POWELL and Kenneth Wayne Wheeler, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George W. Hunt, George Haverstick, San Diego, Cal., for defendants-appellants.
Harry D. Steward, U. S. Atty., Robert H. Filsinger, Chief, Crim. Div., Nancy Duff, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before HAMLEY, HUFSTEDLER, and KILKENNY, Circuit Judges.
Codefendants Wheeler and Powell appeal from their respective convictions for violating 21 U.S.C. § 176a. Both appellants challenge the legality of the search that revealed the marihuana. Wheeler attacks the sufficiency of the evidence to sustain his conviction.
On the evening of September 13, 1970, a border patrol agent saw a pickup truck stop on a road about a mile and a half from the Mexican border. The truck lights were off, and the driver got out of the vehicle and lifted the hood. Someone milled around the truck. The agent notified two other agents about the stopped truck. About 15 minutes after the truck had stopped, the hood went down and the truck was driven a short distance to the south, then turned around and moved north. The two agents who had been contacted had kept the truck in view, and shortly after the truck turned around, the agents stopped it. One of the agents saw two backpacks in the rear of the truck from one of which protruded a package that appeared to be a kilo brick of marihuana. Thereupon, the agents searched the truck and found 165 pounds of marihuana.
Agent Spence observed footprints around the place the truck had initially stopped. The tracks proceeded about 75 yards to a brush area less than a mile from the border. At that point there were indentations in the ground indicating that a burden had been there rested. The same agent described both Wheeler's and Powell's boots, each of which had some unusual characteristics. He identified the tracks as those made by Wheeler's and Powell's boots.
The observations of the border patrol agents were appropriately made from their lawful vantage points. (Harris v. United States (1947) 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.) Their observations fully justified their stopping the truck and looking in the open bed of the truck. When the agent saw the package that appeared to be marihuana, he had probable cause to search the vehicle. (United States v. Oswald (9th Cir. 1971) 441 F.2d 44.) Because there was probable cause for the search, it is unnecessary for us to decide whether or not this was a border search for which probable cause is unnecessary. Both the search and the arrests of the appellants were valid.
We turn to Wheeler's additional contentions. First, he argues that the district court should have sustained his...
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United States v. Patterson, 73-2911
...across an unguarded border point by persons on foot. The contraband is then retrieved on the United States side. See United States v. Powell, 449 F.2d 335 (9th Cir. 1971). Cf. United States v. Markham, 440 F.2d 1119, 1122 (9th Cir. 1971); United States v. Weil, 432 F.2d 1320 (9th Cir. 1970)......
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People v. Rosa
...evidence, but rather, were properly for the jury to consider in determining the weight to be given this testimony (see, United States v. Powell, 9th Cir., 449 F.2d 335; People v. Houle, 85 A.D.2d 751, 445 N.Y.S.2d 255; cf., People v. Wicks, 122 A.D.2d 239, 505 N.Y.S.2d 171, lv. denied 68 N.......
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United States v. Jones
...appellants' objection therefore, must be deemed as going to the weight of the evidence and not its admissibility.4 United States v. Powell, 449 F.2d 335, 336 (9th Cir. 1971); cf. Ewing v. United States, 386 F.2d 10, 14 (9th Cir. 1967), cert. denied, 390 U.S. 991, 88 S.Ct. 1192, 19 L.Ed.2d S......
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United States v. MONDESI-CRUZ, 71-1769.
...element of the offense, citing Current v. United States (9th Cir. 1961) 287 F.2d 268. As we have pointed out in United States v. Powell and Wheeler (9th Cir. 1971) 449 F.2d 335, the Current case holds that proof of commercial value is relevant to the issue of intent to defraud and thus admi......