United States v. Salvador Moreno-Buelna, United States of America v. Raul Nava-Flores

524 F.2d 1129, 1975 U.S. App. LEXIS 12709

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 1975
• Docket: 75-1120, 75-1119
• Status: Published

Opinions

OPINION

Before CHAMBERS and HUFSTED-LER, Circuit Judges, and REAL,* District Judge.

REAL, District Judge:

These appeals involve the legality of a search made without a warrant.

Agents of the Drug Enforcement administration, after having received information of an informant, commenced surveillance at about 3:00 P.M., November 5, 1973. Observing the vehicle — a blue Pontiac — license number HGP 761 — previously described to them — enter the United States from Mexico, the agents followed the Pontiac to a residence in Calexico.

At the residence two females exited the Pontiac, met with other people at the residence, and then departed the residence in another vehicle.

Sometime later a white pickup equipped with a shell-type camper arrived at the residence driven by a male person. The driver of the pickup entered the residence. Shortly thereafter, a white Dodge that had been parked in the driveway of the residence was moved and another male person moved the Pontiac into the driveway. Two males were observed for about ten minutes making two trips from the back seat of the Pontiac to the rear of the residence.

At approximately 6:00 P.M. the Pontiac, driven by a single male, departed, proceeded south and went into Mexico.

Continuing surveillance the agents saw no lights or activity in or about the residence until approximately 3:30 the next morning when lights were then observed being turned on. Shortly, a station wagon arrived in the vicinity of the residence and the driver walked to the residence.

Continuing observation, the agents saw a white-colored pickup with a camper shell arrive shortly after the station wagon. Still another vehicle this one a blue Chevrolet pickup arrived, left, came back and was observed to be driven around to the rear of the residence. Agents observed the lights go off in the residence and two persons walking from the back of the residence to the truck, and appeared to be putting some bags into the back of the blue pickup.

At about 6:00 A.M. the agents saw two male persons enter the blue Chevrolet pickup and depart. Following this vehicle the agents proceeded on a somewhat circuitous route through residential areas without seeming reason to Heber, then to Highway Interstate 8 where they proceeded in a westerly direction. Enlisting the Border Patrol the vehicle was stopped in the Jacumba area and searched. Finding a quantity of marijuana Appellants Nava-Flores and More no-Buelna were arrested.

Subsequently convicted in a Court trial, after denial of a motion to suppress they now appeal urging that the trial judge erred in two respects.

1. Refusal to require disclosure of the informant, and

2. Denial of the motion to suppress.

Disclosure of the identity of the informer was not necessary under the established law of this Circuit explicated in United States v. Alvarez, 472 F.2d 111 (9th Cir. 1973).

The tip and the additional facts disclosed by the surveillance of the agents meet the probable cause test of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The gloss of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968) requires no different result.

Appellant Moreno-Buelna on his own account challenges the sufficiency of the evidence supporting his conviction. This contention is without merit. There is evidence on the record from which the jury could conclude that Moreno-Buelna was one of the male individuals who loaded the pickup. Therefore, the evidence is sufficient to support his conviction.

The judgment is affirmed.