United States v. Sanchez

• Citation: 450 F.2d 525
• Decision Date: 10 November 1971
• Docket Number: No. 71-1079.,71-1079.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Francisco SANCHEZ, Defendant-Appellant.

450 F.2d 525 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Jose Francisco SANCHEZ, Defendant-Appellant.

No. 71-1079.

United States Court of Appeals, Tenth Circuit.

November 10, 1971.

Tosh Suyematsu, Asst. U. S. Atty. (Richard V. Thomas, U. S. Atty., on the brief), for plaintiff-appellee.

Philip White, Cheyenne, Wyo., for defendant-appellant.

Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

This is a direct appeal by Sanchez of his conviction on a charge of unlawful possession of marijuana brought under the Assimilative Crimes Act, 18 U.S.C. § 13, and §§ 35-350 and 35-369 of the Wyoming Statutes, 1957, as amended. More specifically, Sanchez was convicted on a charge of the unlawful possession of narcotic drugs in Yellowstone National Park having been previously convicted of a narcotics violation. On appeal the sole issue is whether the trial court erred in denying Sanchez' motion to suppress the admission into evidence of the marijuana which formed the basis for the prosecution. Accordingly, some reference to the evidence adduced at the hearing on the motion to suppress becomes necessary.

Sanchez and his two companions, Destefani and Traller, while traveling through Yellowstone National Park, parked their van-type vehicle by the side of the road and hiked into a nearby wooded area. At some time during the hike Destefani became separated from the other two and accordingly returned to the van by himself. When Sanchez and Traller did not return soon thereafter, Destefani became concerned that his friends were lost, and he began flagging down passing motorists in an effort to get help. At about this point in time a park official arrived on the scene. Destefani advised this particular official that "I have a couple of buddies and we were out on the trail. My two buddies are still on the hiking trail. They are lost. We need to find them. * * * We have been on LSD. I have been with God all day. Can you take me to the hospital? I need a fix or shot." Destefani was then taken to a ranger station where he again advised other park officials that he, Sanchez and Traller were on an LSD trip and that he was quite concerned about his friends' safety. He also cautioned that "Whomever you send to get them, please warn them that my friends might be dangerous."

One Hassard, a park ranger, was generally apprised of the foregoing information by two rangers who had themselves conversed with Destefani at the station. Acting on the background information thus acquired, Hassard then proceeded to drive to the place where the van was said to have been parked. It was in this general setting that Hassard, after locating the van, noticed two barefoot persons emerge from the woods and walk toward the van. Hassard testified that under the circumstances he was fearful of the individuals and accordingly remained in his car. Using the vehicle's bull horn, he then requested the two to "please move over to the visible side of their vehicle," and advised them that they were suspected of illegal use and possession of drugs. Hassard did not make any statement that the two were under arrest nor did he utter any words that could in themselves be understood to be tantamount to an arrest.

The two initially complied with Hassard's request, although moments later one of them went to the far side of the van where he was momentarily out of the direct view of the ranger. Hassard again requested this person to return to the other side of the van, which he did. This same individual, who was later identified as Sanchez, once again "ducked behind the van * * * appeared to open and shut some doors * * * reached inside and hurled a small brown paper package 50 feet into the woods * * *."

About this time another park ranger, one Hawthorne, arrived on the scene to assist. Hassard then proceeded to retrieve the brown paper package previously thrown by Sanchez. A quick inspection of the contents of the package convinced Hassard that the package contained marijuana, whereupon Hassard "nodded" to Hawthorne, who in turn placed Sanchez and Traller under arrest. Based on this evidence, the trial court found probable cause and accordingly denied Sanchez' motion to suppress. We find no error in this action of the trial court.

The position advanced here by counsel is that Sanchez was "arrested" when Hassard first asked him and his companion to move to the visible side of the van; that such arrest was without a warrant and was not based on probable cause; and therefore the evidence stemming from his unlawful arrest, i. e., the brown paper sack containing marijuana, was inadmissible and should have been suppressed, citing Murray v. United States, 333 F.2d 409 (10th Cir. 1964).

It is the position of the Government that Sanchez was not arrested until after the brown paper sack was retrieved by Ranger Hassard and the substance contained therein tentatively identified as marijuana, at which time, the Government asserts, the park officials clearly had probable cause to make an arrest. At the time Sanchez tried to get rid of the brown paper sack by throwing it into the woods, Sanchez was not under arrest, according to the Government, but had been only temporarily detained for limited investigatory purposes. Alternatively, the Government...