United States v. Salvador Moreno-Buelna, United States of America v. Raul Nava-Flores
524 F.2d 1129
9th Cir.
1975
Check Treatment

*1 depth. greater mental condition credibility weight However, America, STATES UNITED question testimony is not given the Plaintiff-Appellee, court; for the is appellate an for Miles, 449 v. fact. trier of United 1971); v. Turner (10th Cir. (10th Ward, Cir. MORENO-BUELNA, Salvador of the evidence in conflicting nature Defendant-Appellant. to that United this case similar America, UNITED STATES Stewart, Plaintiff-Appellee, Coleman, and United 1974). In Stew- expert witness- testimony of two art the by was contradicted es for defendant NAVA-FLORES, Raul expert witness of one Defendant-Apрellant. government. In lay for witness 75-1120, 75-1119. Nos. testimony of psychiatrist Coleman the was rebutted called the defendant Appeals, States Court as lay several witnesses testimony of Ninth Circuit. rather and observations facts to concrete 19, 1975. Sept. we held In both cases opinion. than as matter of sufficient was Dec. Denied Certiorari pres- in the We hold law. See 96 S.Ct. sufficient, we likewise ent case judg- the trial court’s overturn will not credibility concerning on matters ment testimony. weight of the Appellant argues also that his Gordon,

expert witness, unduly Dr.

limited court in the manner the trial testify.

he was We have ex allowed and find that Dr.

amined record Gor given fully ample

don was express latitude to opinion and the reasons

it.

Affirmed. *2 pickup

Sometime later a white equipped camper awith ar- shell-type rived at a the residence driven male person. pickup The driver of the en- thereafter, Shortly tered the residence. Dodge a white parked that had been driveway of moved the residence was person and another male moved Pon- driveway. tiac into the Two males were making about ten minutes observed for trips two of Pon- from the back seat tiac to the rear of the residence. At approximately 6:00 P.M. the Ponti- ac, male, departed, driven a single proceeded south and went into Mexico. Continuing agents surveillance the saw lights activity in or about resi- approximately dence until 3:30 the next morning lights when were then observed being Shortly, on. wag- turned a station vicinity on arrived in the of resi- (argued), Die- Michael J. McCabe San dence and the driver walked the resi- Cal., go, defendants-appellants. for dence. Arbetman, U. Jeffrey F. Asst. S. Continuing observation, agents Cal., Diego, plaintiff-ap- Atty., San saw a camp- white-colored pellee.

er shell arrive shortly after the station wagon. Still one another vehicle this left, arrived, blue Chevrolet pickup came OPINION back and was obsеrved to driven be Before CHAMBERS HUFSTED- around to the of rear the residence. LER, Judges, REAL,* Circuit Dis Agents lights go observed the off in the Judge. trict walking residence persons and two from truck, back of the residence to the appeared putting bags some REAL, Judge: Distriсt into the back of the blue appeals These the legality involve of a search made without a warrant. At about 6:00 A.M. agents saw Agents Drug two persons male Enforcement ad- enter the blue Chevro- ministration, let having depart. after and agents Following received infor- informant, mation vehicle of an proceeded commenced ‍​​‌​​​​​​‌‌​‌​​​​​​‌‌‌​‌‌​‌‌‌​​‌‌​‌‌‌​​‌​‌‌‌‌​​‌‍sur- aon some- P.M., veillance what at about 3:00 through November circuitous route residential 5, 1973. Observing seeming the vehicle—a blue areas Hebеr, without reason to pre- Pontiac—license number HGP then to Highway Interstate 8 where 761— viously they proceeded described to them—enter westerly in a direction. Mexico, agents Enlisting States from the Border Patrol the vehicle followed the Pontiac to stopped residence in was in the Jacumba area and Calexico. Finding searched. quantity of mari- juana Appellants Nava-Flores and More At the residence two females exited no-Buelna were arrested. Pontiac, people met with other residence, departed and then the res- Subsequently convicted in a Court tri- idence in al, another vehicle. after suppress denial a motion to

* Real, Judge, California, sitting by Honorable Manuel L. designa- District Central District of tion. stashing operation. a classic border-area urging that appeal now the trial parked the passenger The driver her respects. judge two erred in and then the residence in front of car require disclosure Refusal to conveyance. A man from left other informant, and Pontiac into the moved the residence to suppress. Denial of the motion *3 working in driveway began and two men identity Disclosure of the of the area, making trips several rear seat necessary informer was not under during next min- ten into the house explicated of this established law Circuit An so a man drove utes. hour or later Alvarez, in United (9th 472 111 Mexico. into Pontiac back morning a blue Before dawn the next front tip parked in The and the additional facts that had been disclosed by the the rear of the house surveillance of was moved to agents probable headlights. meet the cause test of of Two indi- without the aid States, 307, objects Draper carrying from the begаn 358 79 U.S. viduals 329, (1959). S.Ct. them on the rear bed placing 3 L.Ed.2d 327 The house and 108, gloss Texas, Aguilar of 378 done pickup, U.S. of the and this was without 1509, (1964) 84 12 723 lights. They S.Ct. L.Ed.2d and appeared aid of house 410, Spinelli States, objects tarp 393 v. United U.S. with a other to cover the covering. 584, (1968) re S.Ct. 21 L.Ed.2d men thеreafter two Soon quires house, no different result. pickup away drove the from the testified that heading Agent Goff west. his Appellant Moreno-Buelna on pickup were loaded two men who challenges the sufficiency own accоunt away it. who drove in men same two supporting his of the conviction. that This is also This There contention is without merit. either was under surveillance constant on the record from which the ground or from an air- from vehicles jury that could conclude Moreno-Buelna working ground plane that with was one of the male individuals who vehicles. Therefore, loaded the the evi dence is support sufficient to convic In Ortiz, United States v. 422 U.S. tion. 2585, 2589, S.Ct. 45 L.Ed.2d dealing with at searches The judgment is affirmed. checkpoints trаffic in the vicinity of the border, Mexican-American Justice Powell CHAMBERS, Judge (concur- Circuit recognizes that of the “some factors” ring): which can relied be in officers difficulty I concur. I have in find- determining probable if have cause this ing probable сause for search. The to search per- a car are “the number of evidence, including the uncontroverted vehicle, appearance sons in a and parties, stipulated facts as is that passengers, behavior of the driver morning tip on the in question English, their inability speak to the re- informer, received an who had from sponses ‍​​‌​​​​​​‌‌​‌​​​​​​‌‌‌​‌‌​‌‌‌​​‌‌​‌‌‌​​‌​‌‌‌‌​​‌‍questions, they give to officers’ reliable, proved that “before too himself vehicle, the nature of the indications long” blue-green Pоntiac with Califor- that it may heavily be loaded.” In addi- nia license number HGP and con- tion, “the officers are entitled to draw marijuana, taining would enter the Unit- reasonable inferences these in from facts proceed ed States and to lоcation light knowledge their of the area Calexico the contraband where would prior experience their with aliens and afternoon, Early “stashed.” within smugglers.” hours, matching a matter a Pontiac precisely, from description entеred tip In this we have the accurate case proceeded Mexico reliability, residence proven from an informant of ensuing up Calexico. events The add followed activities Calexico HUFSTEDLER, Judge (dis- residence that corroborated the Circuit inform- senting): er’s information that the contraband would be there. “stashed” Add to this The convictions of both defendants the “reasonable inferences light ... in should be reversed because there was no knowledge of the [the officers’] probable cause to search the Chevrolet. prior experience area and their majority says sup- that information smugglers” aliens and and there is plied by the proba- informant furnished enough probable to constitute сause for telephoned ble cause. The informant an the search. Drug of the Enforcement Admin- istration and blue-green told him that a Moreover, court has consistently Pontiac, license California HGP held may stop that officers to makе in- would enter the United at Calexi- quiries suspicion” if there is “founded long” co “before too and would “contain stop, suspicion” and “founded *4 marijuana.” gave If the informant may be probable less than cause. United agent “any explanation, source or basis Bugarin-Casas, 853, States v. 484 F.2d information, government this (9th 1973). 854 already Cir. As dis- (United failed to introduce it.” States v. cussed, I have difficulty finding prob- (9th 1974), Hamilton Cir. able cause. But probable even if cause 600.) lacking, were suspi- there was founded hearing At the suр- on the motion to justified cion that stop. Further- press, agent who received infor- more, stipulated it was Agent that Cole- phone mant’s call testified that the in- man, approached who pickup after supplied formant had him with acсurate stop, saw what appeared to be mari- information about contraband-laden ve- juana plain debris in view in the driver’s hicles on four to six occasions within the compartment of A search previous years. six This being justified causе, now by probable directed to the issue of the informant’s he coverings lifted the on the floor bed However, reliability. “there is a ‘two- pickup of the pounds and found the 180 pronged’ necessary test. It is to make marijuana. While the facts of the some showing validity of the of the con- suggest case may that the officers have clusions made reliable informant.” intended to event, pickup any search the in (United Hamilton, supra, States v. fact, true, this if would be irrele- 600; F.2d at Spinelli see v. United vant, supported as the search was (1969), 410, 416, 393 U.S. 89 S.Ct. independent probable cause. United 637; 584, 21 Aguilar L.Ed.2d v. Texas Bugarin-Casas, States v. supra, at 108, 114, 378 U.S. 84 S.Ct. fn. 1. 723; 12 L.Ed.2d United States v. Davis The claim of insufficient evidence with (3rd 1972), 1026, 1033.) Cir. respect appellant Moreno-Buelna is aspeсt The second of the test can be without merit. The presumption of any satisfied in ways: of three different knowledge of the ap- contraband which supply informant can govern- plies to the (in driver of a vehicle agent ment with the underlying basis of case appellant Nava-Flores) ap- does not conclusions; indepen- can ply passengers appellant such as Mor- dently significant corroborate features of eno-Buelna. But enough there is in this story; informant’s or the infоrma- upon record which the trier of fact could supplied by tion the informant can be so possession. infer Notably, there is the detailed inherently it is reliable. evidence that the two men who loaded (United Hamilton, v. supra, were the samе two men who 01.) F.2d at sup- The record fails to 600— it, away drove and were the same two port any of these alternatives. men who were in it when it stopped

and searched. See United v. The Government contends that the in- Hood, 493 F.2d 677 tip formant’s was indеpendently corrobo- (United speculation.” firmer than “utter Certainly there agree. rated. I cannot Holland, at supra, 445 F.2d driving a vehi- States nothing about criminal 703.) a residence the border to cle ‍​​‌​​​​​​‌‌​‌​​​​​​‌‌‌​‌‌​‌‌‌​​‌‌​‌‌‌​​‌​‌‌‌‌​​‌‍across ap- activity was criminal Calеxico. No reverse both con- Accordingly, I would residence. Eighth parent at Street victions. Calexico, community of farming In the loading “a turning lights, early rising, large bag” onto a

large box or commonplace events. These

truck are signals of un- are not

routine activities en- activity are “not

lawful suspicion by vir- an aura

dowed with tip.” (Spinelli tue of the informer’s America, UNITED STATES States, at supra, 393 U.S. Plaintiff-Appellee, 590; v. Larkin see United States S.Ct. [observation corroborative].) not of innocuous details Leon RUYLE and Medilab David justify cannot The Government Company, Defendants-Appellants. tip turned an unverified search because hornbook law that right. out to be “It is No. 74-1822. does not satis- verification post ex facto *5 Appeals, Court of United States (United Amendment.” fy the Fourth Sixth Circuit. Hamilton, 490 F.2d at supra, 601.) Argued Oct. 1975. Decided Oct.

Moreno-Buelna’s conviction should be ground that reversed on the аdditional Rehearing ‍​​‌​​​​​​‌‌​‌​​​​​​‌‌‌​‌‌​‌‌‌​​‌‌​‌‌‌​​‌​‌‌‌‌​​‌‍Denied Dec. connecting there is insufficient underlying criminal activi- him with the

ty. Eighth No saw him at marijuana was

Street residence. No person.

found on his The sole

against that he was a him was the fact

passenger in the Chevrolet when stopped it

Boarder Patrol and discovered marijuana. The not contraband was passen-

visible to either the driver or (See

ger. v. Thomas 141; 1971), see also United 1972), v. Flom

554; v. Holland United States 701; ‍​​‌​​​​​​‌‌​‌​​​​​​‌‌‌​‌‌​‌‌‌​​‌‌​‌‌‌​​‌​‌‌‌‌​​‌‍Murray U.S.App.D.C. (9th Cir.

v. United States

694.) majority cites no evidence to jury that the could

support its statement “was Moreno-Buelna

have concluded that individuals who loaded

one the male nothing in the pickup.” I can find jury could have

record from which present that Moreno-Buelna inferred loaded, that he when the vehicle was loading anything

had to do nothing rests The inference