UNITED STATES of America, Plaintiff, Appellee, v. John Alfred HAMILTON, Defendant, Appellant.
No. 73-2124.
United States Court of Appeals, Ninth Circuit.
Jan. 2, 1974.
Rehearing Denied March 18, 1974.
490 F.2d 598
The claim that Local Board Memorandum No. 723 requires a different result is without merit. That Memorandum clearly applies only to specified situations where the registrant‘s response is triggered by board action and restricted to specified time limits.4 United States v. Baldridge, supra, 454 F.2d at 404-405. Here, Hughes presumably was not responding to the induction order, but to his brother‘s alleged illness. Since appellant‘s request for a change in classification was received by the local board after the date scheduled for his induction, he was required to obey the induction order. It may be that a situation will arise where an unusual delay in the mails or some other equitable circumstance would raise due process questions if a mailed request for reclassification was therefore received too late to be considered. See id.; Blades v. United States, 407 F.2d 1397, 1399 n. 1 (9th Cir. 1969). But this is far from such a case.
Judgment affirmed.
Kevin J. McInerney (argued), San Diego, Cal., for defendant, appellant.
Harry D. Steward, U. S. Atty., Stephen G. Nelson, Shelby R. Gott (argued), Asst. U. S. Attys., San Diego, Cal., for plaintiff, appellee.
Before ALDRICH,* ELY and CHOY, Circuit Judges.
ALDRICH, Senior Circuit Judge:
Defendant Hamilton, the driver of a Chevrolet pickup truck, was arrested on August 12, 1972, following a successful search of the vehicle for contraband as a result of information supplied to the United States Border Patrol by an infоrmant. After a non-jury trial he was found not guilty of importing, but guilty of possessing the 264 pounds of marijuana found in the truck, with intent to distribute, in violation of
The same hiatus in the surveillance between the vehicle‘s apparently lawful entry from Mexico (at 2:30 PM) and its apprehension and the discovery of the marijuana (at 6:30 PM) which required a finding of not guilty on the importation count, makes frivolous the government‘s claim that the “search was the functional equivalent of a border search.” We merely note, in passing, that this is not a case of a
We turn, thеrefore, to the district court‘s finding that the search was supported by probable cause. The facts are these. At about 4:30 PM on the day in question one Fernan, a Border Patrol аgent was informed by a previously demonstrated reliable informant that a truck, which he pointed out to him parked across the street from the Customs Agency in Calexico, California, had marijuana concealed in a false compartment in the body bed. If the informant gave Fernan any explanation, source or basis for this information, the government failed tо introduce it. Fernan reported by telephone to Walker, a Customs special agent. The precise nature of what was said is important. According to Walker, the sole testifier, the “informant indicated that there was a false compartment in the bed of this vehicle, and that it contained an unknown quantity of marijuana.” We cannot take Walker‘s word “indicated” as meaning pointed out the compartment as distinguished from merely stating it existed, because in the sentence almost immediately preceding Walker had used the word “indicatеd” as clearly meaning by word of mouth. It is true that there were visible plywood boards over the compartment, but no witness suggested that a plywood flooring in a pick-up truck was unusual or suspicious. Even the government did not claim that the testimony of agent Salinas of seeing the compartment after the flooring was removed, or the snapshots then taken, suggested that it wаs previously visible. Nor do we so construe the record. The burden is on the government, and if we were to draw any inference, it would be that there would be no point in having a false compartment if its existence was apparent.
Having seen the truck, Fernan obviously was able to describe it accurately. Walker went to the window and looked out, but the truck had gоne. A general call was sent out. At 6:30 PM a truck meeting the description stopped of the driver‘s own accord at a then closed highway checkpoint to clean the windshield. Sоme fortuitously present government agents recognized it, effected the search, and arrested the defendant.
The government asserts that the fact the informant was of proven reliability is all that was needed to establish probable cause for the search. While support may be found for this view, e. g., Costello v. United States, 324 F.2d 260 (9th Cir. 1963), cert. denied, 376 U.S. 930, 84 S.Ct. 699, 11 L.Ed.2d 650, it is now clear that, as the court said in United States v. Davis, 461 F.2d 1026, at 1033 (3rd Cir. 1972), there is a “two-pronged” test. It is necessary to make some showing of the validity of the conclusions made by the reliable informant. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). This aspect can be satisfied by evidence of “some undеrlying circumstances” warranting the informant‘s conclusions in the particular instance, Travis v. United States, 362 F.2d 477, at 479 (9th Cir. 1966), cert. denied, 385 U.S. 885, 87 S.Ct. 179, 17 L.Ed.2d 113, or by corroboration of his information from other sources, Draper v. United Stаtes, 358 U.S. 307, 79 S.Ct. 329, 3 L. Ed.2d 327 (1958); see Whiteley v. Warden, 401 U.S. 560, 567, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); or, perhaps, by the information itself if it is so detailed as to be inherently reliable. Thus in Draper, ante, where the informant not only described the suspect, but stated that he would be arriving by train from Chiсago carrying a brown satchel, the Court considered the subsequent fulfillment of this prophecy to be sufficient corroboration of the informant‘s statement that the suspect would be carrying contraband. The probative significance of this subsequent event was noted in Spinelli, ante, 393 U.S. at 416-417. In the case at bar all the government had was a statement supported by nothing that was not оpen and obvious to anyone. We know of no case suggesting that this is enough. Cf. Whiteley, ante, rejecting informant‘s unamplified “tip” that described individuals, in a described car, had stolen gold coins.
Finally, the gоvernment, in keeping with its other views in this case, offers as an alternative ground the fact “the information provided was verified.” It is hornbook law that ex post facto verification does not satisfy the Fourth Amendment. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L. Ed.2d 441 (1963).
Reversed.
CHOY, Circuit Judge (dissenting):
I respectfully dissent. I would sustain as not clearly erroneous the district court‘s factual finding that there was probable cause for the warrantless search. Costello v. United States, 324 F.2d 260, 261 (9th Cir. 1963), cert. denied, 376 U.S. 390.
Not only was the informant of proven reliability, but also his information was corroborated by government agents (Fernan and Salinas) before Agent Sаlinas made any attempt to lift the plyboard sheet covering the false compartment in the pickup truck-bed to smell the marijuana. The corroborative facts preceding the search and the reasonable inferences therefrom are:
The well-described truck, which the informant indicated had a false compartment in its bed containing a quаntity of marijuana, was parked where the informant said it was.
The plyboard cover to the false compartment in the open truckbed was clearly visible.
Fernan inspected thе truck where it was originally parked and saw the false cover.
Salinas saw the plyboard cover and recognized it as covering the false compartment before he rаised it.
I find this case indistinguishable from Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1958). I would not second guess the district judge and say he was clearly erroneous. We are concerned here with whether there was probable causе to search, not with whether a prima facie case to convict for possession of 264 pounds of marijuana was established before Salinas made the search.
I would affirm.
Notes
3. Local Board Memorandum No. 72 provides:
SSS Reg. 1624.1 1626.2 1627.3 1641.6
LOCAL BOARD MEMORANDUM NO. 72 ISSUED: DECEMBER 17, 1962 SUBJECT: TIMELY FILING OR SUBMISSION OF NOTICES OR INFORMATION
1. Selеctive Service Regulations provide that a registrant and other specified persons, to be entitled to a procedural right or to qualify for a status, must file with or submit to the locаl board a notice or information within a specified period of time or before a “cut-off” date.
2. When such a notice or information is filed with or submitted to the local boаrd by mail, the date of mailing as shown by the postmark on the envelope and not the date it was received by the local board shall be used in determining whether the filing or submission is timely.
3. The envеlope in which any such notice or information is received shall be placed in the registrant‘s cover sheet attached to the contents of the envelope.
4. The Mеmorandum indicates on its face that it applies to the registrant‘s duties under what were at the time of its issuance
The Memorandum was rescinded in 1972, after the relevant dates in this casе, and was replaced by Registrants Processing Manual § 603.6, which appears to be broader in its application.