*1 141 package, or original stamped knows point, the failed raise this but we consider illegally imported. plain have An it error and thus it to reverse as to the corollary pos- (count l).5 is that evidence of implicit purchase count is to support alone insufficient a session Appellant’s contention that the il purchase not in or from conviction importation legal count was brought un illegal stamped package, im- original the 21 der 176 U.S.C. which deals § with receiving or concealing or with portation, knowledge marihuana, is erroneous. govern of illegal importation. ment corrected indictment motion States, v. United U.S. Barnes 843, light before trial. of our disposition (1973); 93 S.Ct. appellant’s of claim on the sufficiency of Puco, States F.2d United the evidence we need not reach his con tention that the court’s failure to dismiss 1971). (2d Cir. of against three the four counts was tried after present case him at and, noted, Turner, government’s the close of the in as case de decision prived right him of his judge any omitted properly take the stand supra, in his own statutory defense as to presumptions the remaining of the mention they count. could jury cautioned importation purchase, on the convict not Reversed as to count 1 of the indict- concealing receiving counts sole ment, affirmed as to the remaining possession. The the basis of ly counts. posses than proved more government sion, possession and proved however. $11,000 on the cocaine valued of sale 48 hours of his alien within of an part a crew Rico as member in Puerto arrival The fact that from ship Colombia. aon drugs quantity of was in a valuable so pre either in or of one possession circumstances tending to be economic America, STATES UNITED as a crewman on that he work requiring Appellee, the fact that the ship, combined a so possession in his soon aft cocaine Rico, Puerto rendered arrival in er RAMOS-ZARAGOSA, Jose Jesus posses that the inference reasonable Appellant. into the smuggled the cocaine United sor 74-2932. No. The evidence suffi himself. States barely so. cient but Appeals, Court Circuit. Ninth jury found Since count, importation illegal on the guilty 19, 1975. May only reasonable and consistent basis they have him could also found on which or purchase not in from the
guilty stamped con package
original purchase was made out
clude We do see the United States. drug purchase of a outside
how foreign by national can States of 26 violation U.S.C. deemed provision. Appellant a revenue § tion of which would not have made inadmissi- to concurrent Appellant was sentenced any against appel- ble of the evidence offered We do not think year on each count. terms lant, requires resentencing. count, the elimina- reversal to one our *2 Trujillo, Phoenix,
Richard J. Ariz., for appellant. Scott, B. Asst. U. Atty.,
Michael S. appellee.
OPINION SNEED, Before and HUFSTEDLER NIELSEN,* Judges, and Circuit District Judge.
SNEED, Judge: Circuit charged Appellant possession with distribute, with of heroin intent 841(a)(1) (b). of 21 § violation U.S.C. and in a trial a He convicted without assigns and error the jury as denial evidence. re- his motion We verse. 9, 1974, April an
On
informer tele-
Special
George
Agent
Cons and
phoned
perhaps
that an
revealed
1965 or
old—
green
wagon
pick-
Ford station
or
1966—
white,
up
homemade wooden
shell
transporting
ap-
heroin.
camper
pears
the informer also notified
the vehicle had
Cons
California
plates.
license
relayed the information
Cons
to two
of the Yuma City-County
officers
Nar-
Force,
Task
who later
day
cotics
within
spotted moving pickup,
the lim-
description,
the above
with two
its of
officers, driving
The
occupants.
an un-
car,
on the
turned
siren and a
marked
light
approached
dashboard
red
pickup.
side of this
The
left
officer
passenger seat of the
in the
unmarked
badge
displayed
gun
through
car
occupants
and ordered the
the window
up their hands.
two
put
vehicles
side, a few
feet apart,
traveled
speed
approximately
at a
30-35 mph,
yards.
250-350
One
for about
of the
he
testified that
officers
observed the
pickup
of the
reach
passenger
inside her
*
Nielsen,
Judge,
Leland
Honorable
C.
District
States'
Southern District of Cal-
ifornia, sitting by designation.
forward,
reach
down-
jacket,
lean
actually
And
just
we could
say that
appellant,
He testified
ward.
everything that appears in Exhibit
forward,
leaning
as
driver, was also
Number 1 could
place
take the
of the
shielding
passenger
though he were
itself,
heroin
and if the Court would
Thereafter,
view.
officers’
from the
just
soon not take it into custody,
upright
sat
and his
we could then return it.
*3
stopped.
truck
and the
THE
Well,
COURT:
since it
is
agreed that the substance
question
in
ofOne
get
to
out.
directed
were
Both
heroin, there is
is
no reason
I
that
see
the
to
went
the officers
that the heroin needs to be part of the
door, leaned
the
opened
pickup,
the
of
Clerk’s file here.
floorboard, looked under
the
onto
down
of
a sack
MR.
seat,
discovered
LEBOWITZ: Then with leave
and
front
the
Court,
the
that
of
I would ask to
testified
withdraw it.
officer
The
heroin.
sitting
by one
seen
been
have
could
sack
THE COURT:
we agree
Can
to re-
the seat.
over
leaning
and
vehicle
in the
lease
Is it
that?
Exhibit 2?
from outside
visible
not
was
The sack
MR. LEBOWITZ: Exhibit 2.
vehicle.
the
MR. TRUJILLO
Coun-
[Defendant’s
Yes.
I have
objection
no
to
sel]:
its
was
suppress
to
motion
pretrial
No
being released.
taking of testi-
to
trial, prior
At
made.
exchange took
following
THE
right.
COURT: All
mony,
the
Is the.
stipulation agreed to?
place:
Yes,
MR.
your
TRUJILLO:
Honor.
U. S.
LEBOWITZ [Assistant
MR.
stipulation
counsel,
as stated
it
items
have been two
Attorney]: There
is accurate.
marked.
THE
1,
COURT: Exhibit
paper,
the
Exhibit
we will
Government’s
admitted,
may be
2 may
Exhibit
fact
It indicates the
stipulate to this:
by stipulation.
be released
question
in
was
heroin
that
the
MR. LEBOWITZ: And that the sub-
chemist,
analy-
the
to the
shipped
stance that was seized was in fact her-
made,
appears
result
and the
was
sis
.oin.
I could read that
here. And
right on
MR.
Yes.
TRUJILLO:
record.
into the
THE
That
COURT: Yes.
we
substance.
is Ex-
So
don’t
is the
Here
keep
need to
it.
purposes
For
cus-
Number
hibit
tody, it can be
agent.
returned to the
the stipula-
What is
COURT:
THE
8-10.)
(R.T.
tion?
No motion to
Well,
suppress the
I
evidence
think the
MR. LEBOWITZ:
that,
Later,
made at this
was
time.
during
first of all
stipulation would
agent,
the cross-examination of an
in
the
2 is
fact
substance
such
that Exhibit
and,
9th, 1974,
a motion was made
April
although
seized on
the
that was
expressed
court
on several
particular sub-
occasions
And that the
the
or about.
view that
the above exchange together
2 was sent to the
in Exhibit
stance
the
to
failure move to suppress
Dallas.
Laboratory in
Regional
outset of the
the
trial amounted to a
analyzed, and it was
was there
appellant’s rights
suppress
waiver
the exhibit contained
determined
the evidence the motion was taken under
heroin, and that
the
percent
14.5
advisement.
substance was
weight
trial,
At
conclusion of weight was 193
gross
grams. appellant
found the
guilty.
court
In
weight after the ex-
do-
The net
grams.
ing so
court
it
reiterated
grams,
and that
its belief
amination
appellant’s rights
with since that
tampered
been
evi-
not
has
waived,
had
dence
but concluded
time.
case,
were not the
this
there
that even if
Williams,
authority of Adams
407 U.S.
stop
“probable
cause
vehicle”
(1972)
S.Ct.
L.Ed.2d 612
(R.T. 151)
the seizure of
and that
Ohio,
and Terry
392 U.S.
88 S.Ct.
It is our
heroin was not unlawful.
view 1868,
(1968)
is a difficult
quite properly
Compare
acted
one to
follow.
the trial court
draw and
Unit-
hearing
appellant’s
sup-
motion to
Bugarin-Casas,
ed States v.
1512,
Although we hold that the her cause to prior arrest to the completion of suppressed, we by oin should have been rec arrest pointing to the movements ognize present of this case of the appellant facts and his passenger imme very question. diately prior close The line between to stopping pick to an pursuant up. evidence seized unlawful one; issue is a close but it is suppressed (Henry be arrest which must our view movements, that these together States, 361 U.S. with all circumstances, v. United S.Ct. other were not (1959); 168, sufficient to probable amount cause Strickler, (9th 1974); 490 F.2d Cir. Suspicion arrest. sufficient justi States, fy 291 F.2d an investigatory Plazola stop cannot be em 1961)) evidence (9th ployed to support Cir. seized an arrest. Nor can an arrest, cause probable the basis of which devel unsupported by probable cause, concurrently reasonably with a oped saved redesignating it an investi stop pursuant investigatory gatory brief to the stop. of affairs is not this state
We realize law enforce- one for entirely happy
an surprising It is not officials.
ment are some- marked boundaries poorly such task, however, transgressed. Our
times markings as best we preserve
is to by pretending do this
can. We cannot exist.
they do not
Reversed.
NIELSEN, Judge (dissenting): District govern- am not convinced
I support opportunity had full
ment and there-
reliability of the informant
fore dissent. *5 TAYLOR, a minor D.
Darol Taylor Guardian, A. David ABBE, INC., Appellant O.
PAUL
in No. 74-1787 , CHEMICAL
DIAMOND SHAMROCK DIVISION, CO., ZINC SUPERIOR COMPANY, Third- ZINC SUPERIOR Defendant, Appellant Party in No. 74-
1788. 74-1787 and 74-1788.
Nos. Appeals, Court of Third Circuit.
Argued Feb. 1975. May
Decided