Vaccaro v. United States, 18754.

• Decision Date: 14 December 1961
• Docket Number: No. 18754.,18754.
• Citation: 296 F.2d 500
• Parties: John J. VACCARO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

296 F.2d 500 (1961)

John J. VACCARO, Appellant, v. UNITED STATES of America, Appellee.

No. 18754.

United States Court of Appeals Fifth Circuit.

December 14, 1961.

William C. Wright, John E. Fitzgibbon, Laredo, Tex., for appellant.

William B. Butler, Asst. U. S. Atty., Woodrow Seals, U. S. Atty., Houston, Tex., for appellee.

Before TUTTLE, Chief Judge, and HUTCHESON and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment of conviction entered upon a jury's verdict finding the defendant guilty as charged in counts one and three of a four-count indictment. Both counts were based upon the same approximately 60 grains of marihuana, Count 1 charging a violation of Section 176a of Title 21 United States Code Annotated, and Count 3 charging a violation of Section 4744(a) (2) of Title 26 United States Code Annotated. After an information of previous convictions, one of which related to 1004 grains of heroin hydrochloride, the court sentenced the defendant to 25 years imprisonment on each of the two counts, the sentences to run concurrently, and fined him $5,000.00 on each count or a total of $10,000.00. The appellant argues for a reversal upon two grounds, expressed in his brief as follows:

"I. There was no probable cause to arrest and search the appellant without a warrant of arrest or search warrant.

"II. The action of the prosecuting attorneys in offering and bringing before the jury, and the action of the trial court in admitting, and instructing the jury on evidence pertaining to a suitcase full of marijuana found in a pasture close to a public highway, the day following the arrest of appellant (and admittedly in no way connected with him) denied appellant due process of law and denied him a fair trial."

I. The Search and Seizure.

On the night of August 6, 1960, a customs agent stationed at Laredo, Texas, received information from an informant who lived across the river in Mexico that approximately 18 to 20 pounds of marihuana would be smuggled into the United States the following day, concealed in the back trunk of a 1951 or '52 two-tone green Chevrolet, and delivered in the City of Laredo, Texas, approximately at the corner of Davis and Farragut Streets. The customs agent had previously received information in other cases from this informant and had found that information to be reliable.

On the following day other customs agents, to whom this information had been furnished, observed a 1951 green and white Chevrolet automobile go to the place where the informant had reported the marihuana would be delivered. One of the agents saw through binoculars the driver go to the trunk of the automobile, open it up and lift something out. The driver walked north toward a house in the driveway of which appellant's car was parked. Observation was then obstructed due to passing automobiles. No actual delivery was seen.

The agents were familiar with appellant's car, a 1959 blue Oldsmobile bearing Louisiana license tags 233241, because about six weeks previously they had observed appellant in this same automobile in Laredo. On that occasion, the appellant had registered when he crossed the international bridge, as required by 18 U.S.C.A. § 1407, as one previously convicted of violating the marihuana laws. The customs agents had then placed appellant's automobile under surveillance, and later tried to stop it, but were unsuccessful after the automobile was driven off at a speed of approximately a hundred miles an hour.

On the present occasion, appellant's car moved from the driveway in which it had been parked. The agents followed it to the edge of Laredo where they attempted to stop it, Agent Simpson calling to appellant from a distance of a little more than arm's length, "Stop for United States Officers." Appellant pulled away, his car striking the car of one of the agents. He proceeded out the highway, finally forcing one of the agents off the road and causing his car to wreck when the agent tried to pass appellant and his speedometer registered in excess of 120 miles per hour. State officers, as a result of a telephone call, had set up a road block at Freer, Texas, some sixty miles from Laredo. Appellant evaded the road block temporarily, but was stopped in Freer within a few minutes thereafter. A customs agent then placed him under arrest. A brief examination revealed marihuana sweepings in the trunk of the vehicle. The appellant was taken to a physician's office and there searched. Some marihuana was found in his right and left front trouser pockets and in the trouser cuffs. A customs agent drove appellant's car back to Laredo, arriving late in the evening, and locked the car in the customs' garage. The next day the car was searched more thoroughly and more marihuana sweepings were found and removed.

In ruling upon the motion to suppress as evidence the marihuana discovered in appellant's trousers and in his automobile, we may by-pass, temporarily at least, the special statutes authorizing searches and seizures by customs officers,¹ for we think that the searches were reasonable as incidental to a lawful arrest of the appellant. If we considered the arrest as made when the agents first attempted to stop appellant's car on the outskirts of Laredo, we would hold that probable cause then existed for the arrest, and for stopping and searching the car. See Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. Actually, the arrest and the subsequent searches were not made until after the conclusion of appellant's daring flight. Flight is, of course, circumstantial evidence of guilt. Kimes v. United States, 5 Cir., 1957, 242 F.2d 99; cf. Husty v. United States, 1931, 282 U.S. 694, 701, 51 S.Ct. 240, 75 L. Ed. 629; Brinegar v. United States, 1949, 338 U.S. 160, 166, note 7, 69 S.Ct. 1302, 93 L.Ed. 1879. The arrest and searches of appellant and of his car at the conclusion of the flight were entirely reasonable.

The car in which some marihuana had been discovered, having been taken into custody by the customs agents, could properly be subjected to a further search on the succeeding day without offending the rule announced in Rent v. United States, 5 Cir., 1954, 209 F.2d 893, 897. Such, in effect, was the holding as to a boat in United States v. Lee, 1927, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202. We conclude...