United States v. Steinkoenig

• Decision Date: 19 December 1973
• Docket Number: No. 73-2802. Summary Calendar.,73-2802. Summary Calendar.
• Citation: 487 F.2d 225
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Ray STEINKOENIG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 225 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. George Ray STEINKOENIG, Defendant-Appellant.

No. 73-2802. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 23, 1973.

Rehearing Denied December 19, 1973.

Thomas G. Sharpe, Jr., Brownsville, Tex., for defendant-appellant.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellant was convicted on a threecount indictment charging that he conspired to import 190 pounds of marijuana, imported the marijuana, and possessed it with intent to distribute, in violation of 21 U.S.C. § 963, 21 U.S.C. § 952(a), and 21 U.S.C. § 841(a)(1). On appeal he challenges the admissibility of the 190 pounds of marijuana and other evidence. We affirm his conviction on the basis that the marijuana was found in a valid border search, and the other materials' admission was harmless error.

On January 25, 1972, customs agents received a tip that four white males staying in the Brownsville, Texas, Rodeway Inn were in the area for the purpose of buying narcotics. That afternoon the agents placed appellant and three companions under surveillance. Their efforts were soon rewarded.

Suspects Fuller, Seals and Steinkoenig left their motel and entered Mexico at about 6:00 p. m. When their car returned to the United States at 11:00 p. m., driver Seals was the lone occupant. After a fifteen-minute stop at the motel, Seals left in a van with Newell, who had stayed behind while the others went to Mexico. Customs agents followed the van six miles to an area near the Rio Grande River; the van stayed by the river until it returned to the motel at 3:00 a. m. the next morning.

Shortly after the van arrived back at the motel, agents surrounded it and informed Newell, by this time the sole occupant, that he was under arrest. His first response was to brandish a rifle but, upon further reflection, he put it down, left the van and surrendered. Agent Nicko then searched the van; other agents entered the motel room to search it and arrest the other three suspects.

When Agent Nicko entered the van he found five burlap sacks on the floor. He opened them and found, in all, 190 pounds of marijuana. Also in the van were 2,850 seconal pills. Agents searching the motel room found six and one-fourth ounces of marijuana, one and three-fourths ounces of marijuana seed, fifteen partially smoked marijuana cigarettes, amphetamines and four smoking pipes.

Appellant's first point of error is that the 190 pounds of marijuana was the product of an unconstitutional search and therefore inadmissible. We believe that Nicko's search of the van should be measured by border search standards. It is true that the vehicle searched had not crossed a border, but this Circuit has decided that a border crossing is not the sine qua non of a valid border search. In United States v. Hill, 5th Cir. 1970, 430 F.2d 129, the court adopted the Second Circuit rule that

. . . when an individual has direct contact with a border area, or an individual\'s movements are reasonably related to the border area, that individual is a member of the class of persons that a customs officer may, if his suspicions are aroused, stop and search while the individual is still within the border area.

430 F.2d 129 at 131. See United States v. Glaziou, 2d Cir. 1968, 402 F.2d 8, cert. denied, 1969, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126. See also United States v. Salinas, 5th Cir. 1971, 439 F.2d 376. In Hill the court used the rule to validate the warrantless search of a panel truck that had taken on a load of smuggled liquor from a docked ship when there was no showing that the vessel had recently crossed an international boundary. In the instant case the van driven by Seals and Newell came in direct contact with the border when it parked by the Rio Grande in the early morning hours of January 26, 1972. Therefore when Agent Nicko searched the van¹ soon after its return from its riverside parking place, he was conducting a border search even though the van had not crossed a border.

The search does not lose its border status simply because it took place six miles from the Rio Grande. In United States v. Warner, 5th Cir. 1971, 441 F.2d 821, cert. denied, 404 U.S. 829, 92 S.Ct. 519, 17 L.Ed.2d 439, this court said:

Therefore when Customs agents choose to conduct a border search outside the immediate vicinity of a border crossing point, the legality of the search will usually depend upon such factors as the distance of the search from the crossing point, the time elapsed since crossing, and the circumstances upon which the agents base their suspicions.

441 F.2d 821 at 833. See also Alexander v. United States, 9th Cir. 1966, 362 F.2d 379, cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439. In the instant case the search occurred six miles from the border, fifteen minutes after border area contact, and upon the basis of an informer's tip and close surveillance. These circumstances create a nexus with the border that is sufficient to make this a border search.² See also United States v. Martinez, 5th Cir. 1973, 481 F.2d 214; United States v. Maggard, 5th Cir. 1971, 451 F.2d 502, cert. denied, 405 U.S. 1045, 92 S.Ct. 1330, 31 L.Ed.2d 587; Thomas v. United States, 5th Cir. 1967, 372 F.2d 252.

Probable cause is not required to initiate a border search; we must approve Agent Nicko's search if we conclude he had reasonable suspicion to believe the van contained contraband. See United States v. Martinez, supra; United States v. Thompson, 5th Cir. 1973, 475 F.2d 1359; Annot., 6 A.L.R.Fed. 317. We believe the events in this case would arouse a custom agent's reasonable suspicion. There was an informant's tip, followed by a surveillance period in which agents observed three suspects enter Mexico. Only one returned, and he quickly departed for the Rio Grande after picking up a companion and changing vehicles. He returned to the motel at 3:00 a. m. after being parked by the border for more than two hours. Such activity could easily foster the suspicion that two persons remained in Mexico to smuggle contraband across the Rio Grande after dark. Consequently we conclude the 190 pounds of marijuana was properly admitted as the product of a valid border search.

Appellant next challenges the trial court's decision to admit other drugs and paraphernalia to show appellant's "intent." Challenged here are the seconal pills in the van and the sundry small quantities of narcotics and paraphernalia found in the motel room. We believe that any error the trial court may have committed in admitting these materials was harmless.

There are two tests for harmless error, and we make the choice by asking whether the error rises to constitutional dimensions. 8A Moore's Federal Practice ¶ 52.02 2. Any error committed in admitting the seconal pills would not have affected appellant's constitutional rights, for we have already determined that Agent Nicko conducted a valid border search of the van, and that search produced the seconal pills. The proper objection to their admission would be either that they were irrelevant, or that they had slight probative value that was outweighed by their prejudicial effect. In fact, the pills arguably were evidence of "other crimes" that should have been excluded unless its admission would "complete the story of the crime on trial by proving its immediate context of happenings near in time and place." McCormick, Handbook of the Law of Evidence 448 (2d ed. 1972). They certainly were not probative of appellant's "intent" as the trial court believed. However, even if the pills were admitted erroneously, the error was harmless.

In Kotteakos v. United States, 1946, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, we find the test for determining whether a nonconstitutional error is harmless.

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

328 U.S. at 764-765, 66 S.Ct. at 1248. See also United States v. Fischetti, 5th Cir. 1971, 450 F.2d 34, cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478; United States v. Cohen, 5th Cir. 1969, 418 F.2d 68; Ahlstedt v. United States, 5th Cir. 1963, 315 F.2d 62, cert. denied, 375 U.S. 847, 84 S.Ct. 101, 11 L.Ed.2d 74. Applying this test to the case at hand, we note that the seconal pills had no direct bearing on the issue of whether appellant conspired to import, imported, or possessed with intent to distribute 190 pounds of marijuana. It is inescapable, of course, that admission of the seconal must have prejudiced appellant in the jury's eyes and permitted them to infer that one who possessed large quantities of seconal was a "bad man" who would import marijuana. On the other hand the properly admitted evidence against appellant and his colleagues was formidable. Agents testified that they had...