United States v. Richard Alan Basile, United States of America v. Neal Spencer Holden

569 F.2d 1053

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 17, 1978
• Docket: 77-1700, 77-1701
• Status: Published

Opinions

WONG, District Judge:

Basile and Holden appeal from their convictions for possessing marijuana with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). We affirm.

Ferguson and Cottle, customs patrol officers, were patrolling a rural area near the Mexican border at 3:30 a. m. on October 17, 1976. The officers observed footprints of eight or nine people on a road approximately three-quarters of a mile north of the Mexican border. The prints, which were about three hours old, headed north. The shoes were of a kind worn by residents of Mexico. The footprints were followed by the officers up a wash and they soon discovered that similar footprints also went down the wash, indicating that the group had made a round trip from the border into Arizona and back again. Ferguson testified that he had “seen this type of operation many times before where people came across the border and leave stashes of marijuana and return to Mexico.” The footprints led the officers on a northern course then west to a firebreak road running parallel to a railroad track, where the officers continued to follow the tracks for approximately a quarter of a mile. The tracks then proceeded under an old railroad right-of-way fence. The officers crossed the fence and continued to follow the footprints through an open field past an old abandoned trailer house, up a dirt road until they reached an area where there were five or six old and apparently abandoned cars. The cars were arranged in a horseshoe formation. Some were without tires and some without wheels. One of the vehicles was a blue panel truck. Like the other vehicles, it was set on blocks in a setting that “looked like a junk yard would." At 4:00 a. m., Cottle used his flashlight to look into the interior of the truck through a rear window. He saw several Mexican sugar sacks containing marijuana bricks. Estimates of the distance of the panel truck from Basile’s house ranged from “20 or 30 yards” to 300 yards, with 100 yards probably being the best estimate.¹ Basile, however, denied ownership of the truck. The officers could not see the house or any other structure in the dark.

Cottle undertook surveillance of the panel truck, secreting himself behind some mesquite trees some 150 feet away from the truck. He was joined by two other officers. About 8:00 a. m., Cottle saw Basile go to the truck, open the door, look inside, then return to the house. Basile returned shortly, driving a station wagon. He backed the station wagon near the truck and loaded marijuana bricks into the station wagon. A few minutes later, Basile returned to the house. Shortly thereafter, he came out with Holden and both men began loading marijuana bricks into the station wagon.

After the loading was completed at about 8:50 a. m., the two men drove the station wagon toward the house area. At about 9:20 a. m., the station wagon left through the front gate, and crossed an overpass over the railroad tracks, headed north. Ten minutes later, Ferguson stopped the blue station wagon that Basile was driving. Holden was riding in the passenger seat. Ferguson asked Basile to open the rear of the station wagon, and he did so. Ferguson saw the marijuana bricks and arrested both men. Ferguson read both Basile and Holden their Miranda warnings, but he did not ask them if they wished to waive those rights.

DEA Agent Berrellez, who was summoned to the scene, advised Basile of his rights some 45 minutes later. Again, Basile was not asked for a waiver. Officer Ferguson heard Basile tell Berrellez that the marijuana was his and that Holden had nothing to do with the marijuana. Berrellez was not called as a witness. Later the same day, a search warrant was obtained for the blue panel truck where an additional quantity of marijuana was seized.

I

The district court denied the appellants’ motions to suppress the marijuana on the ground that the blue panel truck was “abandoned outside of the corral area,” and neither appellant had any reasonable expectation of privacy in it. The Fourth Amendment protection against unreasonable searches and seizures does not extend to open fields. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

Ever since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), “the determination of whether an intrusion is an unreasonable search has depended on one’s actual subjective expectation of privacy and whether that expectation is objectively reasonable.” United States v. Freie, 545 F.2d 1217, 1223 (9th Cir. 1976). In United States v. Magana, 512 F.2d 1169 (9th Cir. 1975), this court stated that even a residential driveway is only a semiprivate area even though within the curtilage of the house. We have also said: “The Fourth Amendment’s protections do not extend to the ‘open field’ area surrounding a dwelling and the immediately adjacent curtilage, and therefore, information gained as a result of a civil trespass on an ‘open field’ area is not constitutionally tainted, nor is the search and seizure which ultimately results from acquiring that information.” United States v. Capps, 435 F.2d 637, 640 (9th Cir. 1970). In Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968), we held that the defendant’s stockpile of Christmas trees was protected from governmental intrusion. The stockpile was between 20 to 35 feet away from the lodge and about five feet from a parking area used by personnel and patrons of the lodge. The court distinguished that case from Janney v. United States, 206 F.2d 601 (4th Cir. 1953), where an officer obtained information that a crime was being committed by concealing himself beside a hog pen which was about 100 feet west of the house. In the instant case, the panel truck was probably about 100 yards away from the house. The trial court’s conclusion that the defendants had no reasonable expectation of privacy with respect to the panel truck is amply supported by the evidence.

II

Pursuant to Rule 86 of the Rules of Procedure for the federal district court for the District of Arizona, the Government gave appellants notice that Basile had told DEA Agent Berrellez that the marijuana belonged to him and that he was taking it to a storage place in Bisbee. He admitted that a large amount of marijuana remained in the blue panel truck, and he added that Holden did not know that marijuana was in the station wagon. Basile objected to the admission of the confession on the ground that he had not waived his Miranda rights. The district court denied Basile’s motion to suppress the confession, on the ground that Basile had impliedly waived his right to silence because he had been twice given his Miranda warnings and had nevertheless responded to questions.

The Government did not attempt to introduce the confession in its case in chief. When Basile was testifying in his own defense, he said that after the officers found the marijuana in the station wagon, “I told them that the two passengers in the car had nothing to do with it. . [bjecause they didn’t.” He testified that he did not own the marijuana, but he knew it was on his property and he was trying to get rid of it. He also said that some Mexicans had left it on his property without consent. In its rebuttal case, the Government called Officer Ferguson to testify about the contents of Basile’s confession to Berrellez made in Ferguson’s presence. Ferguson’s version of Basile’s confession partially contradicted Basile’s testimony because, according to Ferguson, Basile had admitted that the marijuana was his.

The district court did not err in denying Basile’s motion to suppress his confession. Basile was twice given his Miranda warnings, the second 45 minutes after the first, but nevertheless freely and voluntarily made his statements. There was no showing of any overreaching by the officers and there is no contention by Basile that he did not understand the warnings. Although Holden declined to say anything, Basile never indicated that he did not wish to make any statement. He testified in his own defense at the trial. The transcript indicates that he was an articulate and intelligent witness. Under the circumstances, the proper conclusion is that he knowingly, intelligently, and voluntarily waived his Miranda rights. See United States v. Hilliker, 436 F.2d 101 (9th Cir. 1970); United States v. Pruitt, 464 F.2d 494 (9th Cir. 1972). Cf., Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).²

Ill

Holden wanted to prove Basile’s statements that Basile owned the marijuana and that Holden was not involved. The Government could not call Berrellez to prove the confession because he was unavailable at the time of trial, and it did not call Ferguson to testify about the confession as part of its case in chief. Holden thus had no opportunity to bring out exculpatory information by cross-examining Ferguson during the Government’s case in chief. Holden then sought to call Ferguson in the presentation of his defense to elicit the same information. The court sustained the Government’s hearsay objection foreclosing Holden from calling Ferguson for that purpose. The court had earlier ruled that it would not permit Holden to call Basile, sustaining the Government’s hearsay objection.

Holden contends that Basile’s statements should have been admitted because they were either not hearsay, or if hearsay, were nevertheless admissible as hearsay exceptions. We need not decide if Holden’s contentions are correct. When Basile later took the stand he admitted in both direct and cross examination that Holden had nothing to do with the marijuana. Officer Ferguson was called as a rebuttal witness. In response to the question as to what Basile said to Berrellez after Basile’s arrest, he testified as follows: “One of the things he said was that the marijuana was his. Another thing that was said.is that he was taking it to Bisbee. He also said that Mr. Holden was not involved. He also stated that there was more marijuana left in the panel truck.” Thus what Holden sought to have admitted earlier was eventually admitted and any error cured.

IV

Holden further contends that the district court committed reversible errors in denying his motions for a separate trial from Basile, and for a continuance. The motion for severance was based on Holden’s inability to examine Basile, Berrellez, or Ferguson in the order that he desired. In-asmuch as we have concluded that any error committed by the court was cured by the later testimony of both Basile and Ferguson, Holden was not so prejudiced as to require a separate trial for him. The trial court therefore did not abuse its discretion. United States v. Thomas, 453 F.2d 141 (9th Cir. 1971); cert. denied, 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801 (1972); United States v. Coplen, 541 F.2d 211 (9th Cir. 1976). The motion for continuance was predicated on the unavailability of Berrellez as a witness. Ferguson testified as to what Basile had told Berrellez in Ferguson’s presence. Holden argues that it is a fair assumption that Basile had made other statements to Berrellez exculpating Holden. He does not, however, offer any basis for such assumption. Under the circumstance, we cannot say that the trial court abused its discretion in denying a continuance. Dearinger v. United States, 468 F.2d 1032 (9th Cir. 1972); United States v. Brandenfels, 522 F.2d 1259 (9th Cir. 1975).

Appellants’ remaining contentions are without merit and do not warrant discussion.

AFFIRMED.

1 . At the suppression hearing, one witness testified that the distance between the panel truck and the house to be “Maybe, I guess 20 or 30 yards, probably.” (Tr. 91.) At the trial, Officer Cottle testified under cross-examination by Mr. Hooker, counsel for defendant Holden, as follows:

“Q. And you said that the panel truck was about 300 yards from the residence?

A. As far as 1 can make out, sir.

* * * * *

Q. Would you agree with me that we are talking more of a distance of 100 yards, in the neighborhood of a 100 yards, which would be 300 feet or 200 to 300 feet, would be the distance from the panel truck to the residence?

A. It could be, sir.” (Tr. 338-339.)

2 . Defendant Mosley at first declined to give a statement but subsequently gave an inculpato-ry one which was later used in his trial and which resulted in his conviction. The Supreme Court held that the admission in evidence of the defendant’s statement did not violate Miranda principles since the police, at the defendant’s request, “immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.” 423 U.S. at 106, 96 S.Ct. at 327.

The decision in that case turned upon the interpretation of the following passage from Miranda:

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” [Emphasis added.] 384 U.S. 436 at 473-474, 86 S.Ct. 1602 at 1628, 16 L.Ed.2d 694, quoted in Mosley at 423 U.S. 100-101, 96 S.Ct. 321.

The issue in that case was under what circumstances the police may resume questioning after a defendant has previously indicated his wish to remain silent. In the instant case, however, we do not reach that issue since Ba-sile never at any time signified his desire to remain silent. Absent any evidence of an indication by a defendant of his desire to remain silent, this Court’s decisions in Hiiliker and Pruitt are still controlling as to whether a defendant’s Miranda rights have or have not been properly waived.