United States v. James Frederick Church

490 F.2d 353

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 4, 1974
• Docket: 73-2218
• Status: Published

Opinions

OPINION

Before ALDRICH,

* DUNIWAY and SNEED, Circuit Judges.

SNEED, Circuit Judge:

James Frederick Church, appellant, was convicted of possession with intent to distribute 477 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). On appeal, Church raises the issue of whether the trial court committed error in refusing to suppress contraband discovered by agents of the United States Bureau of Customs during a warrantless search of the automobile which he was driving.

There is no dispute as to the facts in this case. At approximately 5:00 a. m. on December 6, 1972, personnel of the United States Border Patrol and United States Customs Service began a surveillance of the Wisteria Check area of the All American Canal¹ — an area known by them to have a high incidence of marijuana and alien smuggling. Shortly after 6:00 a. m., the agents observed an individual on the Check who quickly disappeared upon the approach of a passing irrigation truck. After the truck had departed, two men were seen to enter the Check and unlock the gate which blocked passage over the bridge which crossed the Canal at that point. As the gate was being unlocked, the agents also observed four automobiles approach the Canal just west of the Check. At approximately 6:30 a. m., the vehicles crossed the Canal and proceeded to head north.

The vehicles drove north from the Canal toward Highway 98 and then west on Highway 98. No attempt was made to stop any of the vehicles at this time; however surveillance was continued by one of the agents. When the vehicles reached Clark Road, which is some fifteen minutes drive from El Centro, California, the caravan broke into two groups and the agent lost visual contact with two of the vehicles, one of which was the automobile later stopped and searched while being driven by Church. A second diversionary tactic left only one of the vehicles under visual surveillance, which continued on into El Cen-tro. After being notified by radio that the automobiles which had remained on Highway 98 were no longer under observation, additional surveillance units merged in El Centro in the hope of regaining contact. In downtown El Cen-tro one of the units spotted two parked vehicles which were recognized by the agent as being the same as those observed earlier on the Check. Surveillance was reinstituted at approximately 6:50 a. m., and by 7:00 a. m. five agents had converged on the unoccupied vehicles. The agents approached the automobiles, detected the odor of marijuana emanating from them and observed a kilo brick of marijuana in plain sight inside the vehicle which was the subject of the search at issue here.

After they had ascertained that the vehicles were carrying marijuana, three of the agents remained in El Centro to continue the surveillance. Over the next four hours neither of the vehicles were moved or approached until, at 11:00 a. m., Church entered one of the automobiles and drove it away. The vehicle was driven to a nearby motel, where it remained for some forty minutes, and was finally stopped shortly after Church had left El Centro heading west. As the agents approached the stopped vehicle, they again smelled the odor of marijuana emanating from the open door. The vehicle was searched immediately, without warrant, and 217 kilos of marijuana were seized.

Church contends that, even if the agents had probable cause to search the automobile at the time when it was finally stopped, the circumstances did not justify a search without a warrant. He bases his contention on four grounds: (a) that the search cannot be justified under the automobile exception of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); (b) that the search cannot be classified as a “border search” under Al-meida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); (c) that the “plain view” doctrine, as expounded in Coolidge v. New Hampshire, supra, is inapplicable; and (d) that the search cannot be justified as a “search incident to an arrest” under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1968). Because this ease is controlled by our prior holdings in United States v. Cohn, 472 F.2d 290 (9th Cir., 1970), only the first issue is reached.

As in Cohn, supra, there were “exigent circumstances” at the time the agents first approached the parked vehicle and therefore a search without a warrant would have been justified at that time. Coolidge v. New Hampshire, supra, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, supra. Although unoccupied, the automobile was parked on a public street, was known to have just come from an area having a high incidence of marijuana smuggling, and was subject to being moved again at any time and driven outside the jurisdiction. These factors, coupled with the early hour at which the vehicle was initially observed, the agents’ discovery of a kilo brick of marijuana in plain view inside the automobile and their detection of the odor of marijuana, provided more than ample justification for a warrantless search of the vehicle. United States v. Cohn, supra, 472 F.2d at 292.

The fact that the agents did not conduct an immediate search of the automobile when they first approached it is not a distinction which would take this case outside our holding in Cohn. While our decision in that case was in part based on our belief that it would have been a meaningless gesture to require the officers to obtain a warrant to search for contraband which had already been lawfully discovered, it was also based on our belief that “hindsight” is an improper criterion for evaluating the need for a warrant. United States v. Cohn, supra, 472 F.2d at 292. See also United States v. Sherman, 430 F.2d 1402, 1406 (9th Cir., 1970). That reasoning is equally applicable to the facts presently before us.

Judgment affirmed.

Hon. Bailey Aldrich, Circuit Judge, First Circuit, sitting by designation.

1 . The Wisteria Check area of the All American Canal is located 100 feet from the Mexican-American border and approximately three and one-half miles west of Calexico, California. The All American Canal parallels the Mexican-American border for some two to three miles east of the Wisteria Check and for seven miles west of the Cheek before it turns north. There are dirt roads leading south from the Wisteria Check into Mexico, and another road which runs just south of the border from Mexicali to the Check and beyond.