Petition for Writ of Certiorari — Bird v. United States

SUBJECT INDEX

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REFERENCE TO OPINION BELOW ................ 1

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CONSTITUTIONAL PROVISIONS AND

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REASONS FOR ALLOWANCE OF WRIT ............ 7

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TABLE OF CASES

Bailey v. United States, 386 F.2d 1 7”

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Brinegar v. United States, 338 U.S. 160,

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Carrol v. United States, 267 U.S. 132,

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Chambers v. Maroney, 399 U.S. 42,

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Coolidge v. New Hampshire, US. ,

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Duprez v. United States, 435 F.2d 1276

IS Re oatag seer Ee En in ee Nea ae y

Fumagalli v. United States, 429 F.2d 1011

IRI iy ar ve eS I a OS A) 10

Husty v. United States, 282 U.S. 694,

Red ee PN pee LET AAR x

Leary v. United States, 395 U.S. 6,

og ER A a ee Ee Ee 12

Marsh v. United States, 344 F.2d 314

ne ee he Wow owsion enone 10

Miranda v. United States, 428 F.2d 283

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Morales v. United States, 378 F.2d 187

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Roa-Rodriquez v. United States, 410 F.2d

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Thomas v. United States, 372 F.2d 254

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United States v. Almeida-Sanchez, 452 F.2d 459

a Re i Oe ee a ee eRe 2 8

United States v. Johnson, 425 F. 2d 630

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United States v. Maggard, F.2d ,

5 Cir., 1971 (No. 27170, December 3, 1971) ................. 7

United States v. Tsoi Kwan, 416 F. 2d 306

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Walker v. United States, 404 F. 2d 900

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STATUTES CITED

BUS.C. § 1357(aX3) ..-.---- Pee er ee ern a ear 3

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

No.

GEORGE CURTIS BIRD,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

.

‘

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Asai POs aia iat ds ee

George Curtis Bird petitions that a writ of certiorari issue to

review the judgment of the United States Court of Appeals for

the Fifth Circuit entered in this cause February 29, 1972.

REFERENCE TO OPINION BELOW

The opinion and judgment of the United States Court of

Appeals for the Fifth Circuit are not yet reported; a copy of

each are appended hereto in Appendix, infra, pp. Al-3.

JURISDICTION

The opinion and judgment of the United States Court of

Appeals for the Fifth Circuit sought to be reviewed was

delivered February 29, 1972. Motion for Rehearing was not

filed.'

Jurisdiction to review the opinion and judgment of the

United States Court of Appeals for the Fifth Circuit by writ of

certiorari is invoked pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether and by what standards the Fourth Amendment

governs a search at location other than a port of entry of a

motor vehicle which has not been shown to have crossed any

external boundary of the United States nor its occupants to

have committed any suspicious act by one whose duty, as an

immigration officer, is to search for aliens and, as a customs

patrol inspector, is to search for illegally imported merchandise.

2. Whether search of a motor vehicle and seizure of sacks

and their contents discovered in the vehicle by an immigration

officer at a highway checkpoint who had conducted a futile

search for aliens but did not have probable cause to believe the

sacks contained contraband may be constitutionally upheld on

standards other than mandated by the Fourth Amendment to

the United States Constitution because the searching officer has

also been designated a customs patrol inspector of the Customs

Service.

3. Whether under the circumstances of this case the Court of

Appeals properly affirmed denial of a trial motion for judgment

of acquittal contending “the evidence is insufficient to sustain a

conviction” of the offense charged by finding that the evidence

was “sufficient to create an issue for the jury”’ as to essential

elements of the offense charged.

1 All emphasis throughout is supplied by the writer of this Petition

unless otherwise specified.

3

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

1. The Fourth Amendment to the United States

Constitution provides:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation and particularly describing the place to be

searched, and the persons or things to be seized.”

2. 8 U.S.C. § 1357(a)(3), relating to immigration officers,

provides:

“(a) Any officer of employee of the service authorized

under regulations prescribed by the Attorney General shall

have power without warrant —

(3) within a reasonable distance from any external

boundary of tne United States, to board and search for

aliens any vessel within the territorial waters of the United

States and any railway car, aircraft, conveyance, or vehicle,

and within a distance of twenty-five miles from any such

external boundary to have access to private lands, but not

dwellings, for the purpose of patrolling the border to

prevent the illegal entry of aliens into the United States;

and” ,

3. 19 U.S.C.A. § 482, relating to customs officers, provides:

“Any of the officers or persons authorized to board or

search vessels may stop, search, and examine, as well

without as within their respective districts, any vehicle,

beast or person, on which or whom he or they shall

suspect there is merchandise which is subject to duty, or

shall have been introduced into the United States in any

manner contrary to law, whether by the person in

possession or charge, or by, in, or upon such vehicle or

beast, or otherwise, and to search any trunk or envelope,

wherever found, in which he may have a reasonable cause

to suspect there is merchandise which was imported

4

contrary to law; and if any such officer or other person so

authorized shall find any merchandise on or about any

such vehicle, beast, or person, or in any such trunk or

envelope, which he shall have reasonable cause to believe is

subject to duty, or to have been unlawfully introduced

into the United States, whether by the person in

possession or charge, or by, in, or upon such vehicle, beast,

or otherwise, he shall seize and secure the same for trial.”

4. 21 U.S.C. § 176 a, since repealed, provided in pertinent

part:

“Notwithstanding any other provision of law, whoever,

knowingly, with intent to defraud the United States,

imparts or brings into the United States marihuana

contrary to law, or smuggles or clandestinely introduces

into the United States marihuana which should have been

invoiced, or receives, conceals, buys sells, or in any manner

facilitates the transportation, concealment, or sale of such

marihuana after being imported or brought in, knowing

the same to have been imported or brought into the

United States contrary to law, or whoever conspire to do

any of the foregoing acts, shall be imprisoned not less than

five nor more than twenty years and, in addition, may be

fined not more than $20,000. * * *”

STATEMENT OF THE CASE

At about 11:00 p.m., traveling north on an interstate

highway from Laredo, Texas, a pick-up truck with a camper

On it was stopped at a Border Patrol checkpoint

approximately eight or nine miles from the international

boundary. Petitioner was a passenger in the cab of the pick-up

being driven by one Melvin D. Anderson.? Observation and

inquiry by Border Patrolman William Randolph, Jr.

determined that occupants of the vehicle were

Anglo-Americans, citizens of the United States and residents

of Taos and Santa Fe area of New Mexico. Looking through

Before trial proceeding. in this matter Anderson was killed in an

automobile accident.

5

the back window of the pick-up into the camper area, and

noticing compartments in the camper, Randolph directed

Anderson to pull the vehicle over to the side of the highway

“for a secondary inspection.” Anderson alighted from the cab,

opened the camper door, got ip the camper, handled a big

dog and at the direction of Randolph a the first, a

compartment on the left side and then one On the nght in

which, with aid of his flashlight, Randolph observed, just

some tools and things. Randolph then asked that a third

compartment situated right behind the cab of the pick-up be

opened. Anderson did so and according to Randolph

“Q. But it was high enough up so that you could see there

was no aliens?”

A. The third time, yes.

Q. Were these men then free to go at that time, or had

you determined that you were going to find out what

was in the sacks?

A. I saw the sacks and they appeared to be Mexican

coffee sacks, a large coffee sack, and I asked Mr.

Anderson, ‘I sure would like to know what is in

those sacks.”

Q. At that time your suspicions were aroused and you

were not going to let them go until you found out

what was in the sacks, is that right?

Yes, sir.

And you at that time were suspicious that those

sacks might contain marihuana, is that right?

Yes, sir.

And you were not going to let them go, you were

not going to let them proceed forward until you

found out whether your suspicions were correct or

not, is that right?

A. That’s correct.”

Pr OF

Determining that the sacks contained marihuana, Randolph

arrested Petitioner and Anderson, took them to a border

patrol office with the pick-up and then turned subjects and

pick-up and contraband over to customs officer Cox for

6

further handling.* From his interrogation of Petitioner, Cox

learned that as a consequence of being approached in

Albuquerque, New Mexico by a man who asked him to do $0,

Petitioner and Anderson went to Laredo and, leaving keys in

the pick-up, checked in a motel; that someone unknown to

him drove the pick-up away and about an hour later retumed

it, they checked and found, marijuana; that they waited until

dark and proceeded away from Laredo until stopped at the

checkpoint. Of eighty-six packages contained in four sacks,

eighty-five were wrapped in cellophane and plastic and one

was in a cardboard box, Government Ex. No. 8, that was

found by Randolph near the bottom of the sack (App. 51).

Upon inquiry by Agent Cox, Petitioner indicated that “this

was a special quality marijuana known as Acapulco Gold,

which this Negro male in Albuquerque had arrangements (sic)

to obtain himself and for defendant Anderson” (App. 62).4

Indicted for violation of 21 U.S.C. § 176(a) by smuggling

marijuana into the United States and by transporting and

facilitating transportation and concealment of Marijuana and

for violation of 26 U.S.C. § 4744(a)(2) by being a transferee

without having paid the required transfer tax, Petitioner

moved to suppress fruits of search, arrest and seizure made by

Border Patrolman Randolph as violations of his Fourth and

Fifth Amendment rights (App. 93-94). Upon hearing the

District Court denied motion to suppress.

* Randolph also carried an identification card designating him a Customs

Patrol Inspector of the Customs Service, but admitted that he had acted in

capacity of an immigration officer, had never received training as a

customs officer and had only worked with customs officers on one

occasion — during operation intercept.

“In material significant respects, the opinion of the Court of Appeals

misconstrues uncontradicted recitation by Cox of what Petitioner related

to him: The Negro male in Albuquerque asked him to haul “a load of

marihuana” (App. 60) — not, as the Court of Appeals would have it, “a

special strain of marihuana known as Acapulco Gold;” when the pick-up

was returned by an unknown person, Petitioner and Anderson “checked

and found the marihuana in the truck” (App. 60) — not that Petitioner

“observed that the Acapulco Gold was present.” As pointed out in the

text above, only the cardboard box was indicated by Petitioner to Cox at

the Border Patrol Station to be Acapulco Gold — the source of which is

not shown in this record.

7

At trial Petitioner was arraigned only on first and second

counts. When the Government rested, Petitioner moved for

judgment of acquittal for failure of proof that marijuana was

smuggled from Mexico and that Petitioner knew it had been

illegally imported. The district court denied the motion but

submitted only Count Two — transporting and facilitating

transportation and concealment of marijuana, knowing it to

have been imported contrary to law. After a jury verdict of

guilty the district court imposed a sentence of six years

confinement and a fine of $2,500.00 to be paid.

Appeal to the United States Court of Appeals followed.

Relying almost exclusively on United States v.

Maggard, F. 2d (5 Cir., 1971) (No. 27170, December

3, 1971) -— a case that demonstrably is factually

distinguishable from the instant one — the opinion of the

appellate court holds that because the compartment was large

enough to conceal an alien Randolph was entitled to search it;

once he viewed the coffee sacks Randolph, as a commissioned

customs officer, had authority to inspect the sacks — and

upheld the search and seizure. Reciting its version of the facts

(shown in footnote 4, supra, to be inaccurate in major

respects) the opinion found that the evidence, as recited by it,

was “sufficient to create an issue for the jury as to whether the

marijuana was illegally imported and the defendant had

knowledge thereof.” Accordingly, judgment of conviction was

affirmed.

REASONS FOR ALLOWANCE OF WRIT

While Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280

(1925) established the rule that an automobile or other vehicle

may constitutionally be searched without a warrant, it also held

unequivocally, 267 U.S. at 154, 45 S. Ct. at 285:

“It would be intolerable and unreasonable if a prohibition

agent were authorized to stop every automobile on the

chance of finding liquor, and thus subject all persons

lawfully using the highways to the inconvenience and

indignity of such a search. Travelers may be so stopped in

crossing an international boundary because of national

self-protection reasonably requiring one entering the

country to identify himself as entitled to come in, and his

belongings as effects which may be lawfully brought in.

But those lawfully within the country, entitled to use the

public highways, have a free right of Passage without

interruption or search unless there is known to a

competent official, authorized to search, probable Cause

for believing that their vehicles are Carrying contraband or

illegal merchandise.”

The rule was reiterated in Husty v. United States, 282 US.

694, 51 S. Ct. 240 (1931) and the holding reaffirmed in

Brinegar v. United States, 338 U.S. 160, 176-177, 69 S. Ct

1302, 1311 (1949), rejecting the assumption “that every

traveler along the public highways may be stopped and searched

at the officers’ whim, caprice or mere suspicion.” Carroll's

teachings were examined and approved more recently in

Chambers v. Maroney, 399 U.S. 42, 48-51, 90 S. Ct. 1975,

1979-1981 (197),. and just lately in Coolidge v. New

Hampshire, U.S. » 90 S. Ct. 2022, 2033-2036 (1971).

Thus for 45 years the Supreme Court has continued to insist

that the right of a citizen “who has given no good cause for

believing” that he is engaging his motor vehicle in illegal activity

on a public highway “to proceed on his way without

interference,” Brinegar, supra, 338 U.S. at 176-1 77, 69 S. Ct. at

1311, remain protected under the Fourth Amendment.

Elsewhere, however, particularly in the Fifth and Ninth

Circuits, Fourth Amendment protections for the traveling

citizen are being weakened, if not denied, by decisions that

speak of “border searches,” “customs searches,” “border

officials,” “check points,” “immigration _ inspections,”

“suspicion,” “reasonable suspicion,” “reasonableness,”

“probable cause” and leave confusion and uncertainty in their

wake. To avoid unduly lengthening this point by an exhaustive

exploration of origins and twistings and turnings of the many

opinions that have dealt with the problems, the reader is

respectfully referred to United States v. Almeida-Sanchez, 452

F. 2d 459 (9 Cir., 1971) where they are collated and discussed

in a thoughtful dissenting opinion beginning at 452 F. 2d 461.

With that, a brief look at what appear to be some typical

9

contradictions may suffice to show the pressing need for a clear

or authoritative expression by the Supreme Court.

Take United States v. Maggard, F. 2d (5 Cir., 1971)

(No. 21170, Dec. 3, 1971), a copy of which is appended hereto

in Appendix, infra, pp. A3-5. An excellent example of the

problem, it was relied upon exclusively by the Court of Appeals

to uphold search and seizure in the instant case. Maggard points

out that a car was stopped “by border patrol officers at a

checkpoint 8 miles north of Laredo” who, after permitting

Maggard to pass through, noticed his car was riding low and,

realizing “the possibility that defendant was transporting illegal

aliens into the country,” pursued and again stopped the car and

searched its trunk — finding a plastic bag containing

recognizable marihuana. With respect to the challenged search,

the Maggard opinion finds it “undisputed that border officials

are authorized to establish checkpoints within a reasonable

distance from a border crossing and, without a warrant, conduct

searches for contraband,” citing 19 U.S.C.A. § 482 (1964) —a

provision that heretofore has not been considered authority for

an immigration officer, a border patrolman, but for a customs

officer who under it must nevertheless have “reasonable cause

to suspect” a vehicle contains illegally imported merchandise;

see e.g., Morales v. United States, 378 F. 2d 187 (5 Cir., 1967)

and cases there cited. On the other hand, according to the Ninth

Circuit, “checkpoints” are established away from a border by

immigration officers under 8 U.S.C. § 1357 for the purpose of

detecting illegal aliens, Duprez v. United States, 435 F. 2d 1276

(9 Cir., 1970); Miranda v. United States, 426 F. 2d 283 (9 Cir.,

1970).

Moreover, Maggard had “no trouble in concluding that this

search” — by immigration officials claiming to suspect illegal

aliens — “qualifies as a border search.” Yet the Ninth Circuit

has-insisted that a stop by an immigration officer to investigate

for illegal aliens is simply not a “border search,” Duprez, supra,

and Miranda, supra.

Finding it “clear that border officials need less cause to

initiate a search than is required of law enforcement officers in

other circumstances,” Maggard cites cases treating powers of

customs agents. The opinion says that “border searches” are

tested by “reasonable suspicion rather than that of probable

10

cause,” and relies on a case involving search of the person of a

Chinese seaman who had just left a shore launch by customs

agents acting on reliable information,’ and a case involving a

stop at a roadblock set up by state officers at request of a

customs agent who had what he considered reliable information

that driver of the vehicle had obtained heroin in Mexico.®

An additional difficulty posed by the Maggard opinion, and

also present in the instant case, is that it finds support in the

“border search’’ doctrine when there is no showing whatsoever

that the Maggard vehicle or its occupants, or the vehicle and the

occupants in the instant case, had entered the United States

from Mexico’ or, if they had, that entry was not complete.®

In the Ninth Circuit the situation has reached a point where

an opinion that purported to clarify and reconcile many prior

decisions of that court into two rules, Fumagalli v. United

States, 429 F. 2d 1011 (9 Cir., 1970)? brought a later charge by

a dissenting member of the court in Almeida-Sanchez v. U. S.,

452 F. 2d 459, 461-468 (9 Cir., 1971) that it and similar

decisions ini@#he- Ninth Circuit “tare so clearly at odds with the

requirements of the Fourth Amendment that they should be

overruled,” pointing out: “Despite our recognition that the

probable cause requirement of the Fourth Amendment applies

to all searches by Customs officials for smuggled merchandise

except border searches, this court, alone among the Courts of

Appeals, has expressly refused to impose the probable cause

restriction upon searches for illegally entered aliens conducted

by Immigration and Naturalization officers ... whether or not

5 United States v. Tsoi Kwan, 416 F. 2d 306 (5 Cir., 1969).

© Walker v. United States, 404 F. 2d 900 (5 Cir., 1968).

7“No case has held that one who has not crossed an international

boundary can be the object of a constitutionally permissible border

searcn . . .,” Bailey v. United States, 386 F. 2d 1 (5 Cir., 1967). See,

however, United States v. Weil, 432 F.2d 1320 (9 Cir., 1970).

® Compare Thomas _v. United States, 372 F. 2d 252, 254 (5 Cir., 1957);

and see Marsh v. United States, 344 F. 2d 317 (5 Cir., 1965).

°“What all these cases make clear is that probable cause is not required

for an immigration search within approved limits but is generally required

to sustain the legality of a search for contraband in a person’s automobile

conducted away from the international boundary.” (Emphasis by the

court.)

11

the search in question could qualify as a ‘border search’ under

the tests discussed above,” and adding:

“If a reason exists for distinguishing searches for aliens from

searches for merchandise, no one — including this court —

has suggested what it might be. Nothing in the words of

the Constitution supports the decision. And no one

suggests that the public interest in excluding inadmissible

aliens is greater than that in excluding narcotics and other

contraband.”

While raised in a different context some of the problems

presented here were obviously thought to be significant in

United States v. Johnson, 425 F. 2d 630 (9 Cir., 1970),

certiorari granted, 400 U.S. 990 (1971), argued as No. 577,

April 19, 1971 and later set for reargument but dismissed under

Rule 60(2), 92 S. Ct. 38. :

Leaving the confusion and disagreements among and between

the Fifth and Ninth Circuits, one notes that the views of the

Tenth Circuit, expressed in Roa-Rodriquez v. United States,

410 F. 2d 1206 (10 Cir., 1969) seem to agree in part with

those of the Ninth but depart from those of the Fifth in other

respects. There authority of immigration inspectors to stop and

search an automobile for aliens was confirmed but at the same

time restricted to a search for that purpose, prohibiting a

general search for law violations and holding invalid a search of

the trunk of the automobile and a jacket found therein.

In sum, it appears that decisions of the several circuits are in

conflict with each other on the same matter and decide

important questions of federal law implicating the Fourth

Amendment which appeared to conflict with the dictum of

Carroll and Brinegar, supra, and should be settled by the

Supreme Court.

The instant case is an appropriate vehicle for, by relying on

Maggard, supra, it directly presents for determination the

meaning and extent of “border searches,” the constitutional

basis and scope of authority of an immigration officer to search

a motor vehicle for illegal aliens and then, finding none, the

constitutional basis and scope of his claimed authority to act as

a customs agent to search a compartment in the vehicle and

inspect what appear to be sacks and seize their contents.

12

In addition, the presumption of importation and knowledge

thereof arising from repealed Section 176a of Title 21 — see

Leary v. United States, 395 U.S. 6, 895 Ct. 1532 (1969) — not

being charged here, this case presents an opportunity to

determine the evidentiary standards by which a motion for

judgment of acquittal should be determined. Erroneous findings

of the Court of Appeals regarding “Acapulco Gold” have been

pinpointed ;'°® it further should be noted that the coffee sacks

with Spanish language markings were the type of sack Randolph

had seen regularly and legally imported (Appendix 52).!!

Curiously enough, the district court was most impressed by

distance travelled by Petitioner and Anderson’? — surely an

ambigious circumstance more consistent with innocence than

guilt; and when one considers that Nogales, Juarez and other

points on the Mexican border are much closer sources of supply

of Mexican marijuana to Albuquerque, the distance to Laredo

has little probative value. Dearth of evidence of importation and

knowledge thereof is, accordingly, apparent.

1 See Footnote 4.

1Tt+ just appeared to be a coffee sack. I have seen the coffee bean

sacks that they import here in the customs lot, and it just appeared to be

that type of sack” — “the type of sack that (I) have seen imported with

coffee beans into the United States...”

12s I see it probably the most cogent evidence on that point is the

simple fact that these two young men would drive from Albuquerque,

New Mexico, a distance of six or eight hundred miles, I suppose, to Laredo

here on the Mexican border to pick it up.”

13

CONCLUSION

For the reasons set forth above, petition for a writ of

certiorari should be granted and on further hearing on the

merits the opinion and judgment of the United States Court of

Appeals for the Fifth Circuit should be reversed and remanded

or, alternatively, the prosecution ordered dismissed.

Respectfully submitted,

Sam Houston Clinton, Jr.

CLINTON & RICHARDS

500 West 7th Street

Austin, Texas 78701

HALL & ZAFFIRINI

Sames-Moore Bldg.

Laredo, Texas 78040

Attomeys for Petitioner

CERTIFICATE OF SERVICE

I, Sam Houston Clinton, Jr., a member of the Bar of the

Supreme Court of the United States, do hereby certify that a

copy of the foregoing Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit has been

served on counsel for Respondent by depositing same in the

United States mail, postage prepaid, addressed to Honorable

Anthony J. P. Ferris, United States Attorney, Attention:

Anthony C. Aguilar, Assistant United States Attorney, 515

Rusk Avenue, Houston, Texas 77002, and upon Honorable

Erwin N. Griswold, Solicitor General, Department of Justice,

Washington, D.C. 20530, this day of March, 1972.

Sam Houston Clinton, Jr.

Al

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-2832

@® Summary Calendar*

UNITED STATES OF AMERICA, Plaintiff-Appellee,

vs.

GEORGE CURTIS BIRD, Defendant-Appellant

Appeal from the United States District Court for the

Southern District of Texas

(February 29, 1972)

Before BELL, DYER and CLARK,

Circuit Judges

PER CURIAM: Bird appeals from a jury conviction of facilitating the

transportation of illegally imported marihuana, knowing the same to

have been illegally imported in violation of 21 U.S.C.A. § 176a (1961).

We affirm.

Bird maintains that the evidence was insufficient to infer a knowledge

of illegal importation and was insufficient to show that the marihuana

had actually been illegally imported. Considered in the light most

favorable to the Government, the proof showed Bird knew the following

facts. He was hired by a man in Albuquerque, New Mexico to travel over

800 miles to Laredo, Texas, a city on the Mexican border, to pick up a

special strain of marihuana known as Acapulco Gold and transport it

back to Albuquerque. Bird and a companion checked into a Laredo

motel and left their pick-up in the motel parking lot with the keys in

the ignition. Subsequently some unknown person drove off in the

pickup and remained away for approximately an hour. When the truck

was returned, Bird looked into the special compartment mounted on the

pickup bed and observed that the Acapulco Gold was present. Bird and

his companion thereupon began their journey back to Albuquerque, but

were arrested at a border check point 8 miles north of Laredo. A search

of the compartment revealed one hundred and sixty-eight pounds of

marihuana in three Mexican coffee sacks with Spanish language

markings, and in one American bag marked “Beans”. This evidence was

sufficient to create an issue for the jury as to whether the marihuana

* Rule 18, Sth Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y.,

431 F.2d 409, Part I (Sth Cir. 1970).

A2

was illegally imported and the defendant had knowledge thereof. See

United States v. Maggard, F.2d (Sth Cir. 1971) [No. 27170,

December 3, 1971].

Bird next asserts that the marihuana should have been suppressed as

the fruits of an illegal search and seizure. Bird contends that the

immigration officials could not search the compartment without

probable cause since it was not a spot.likely to contain aliens. But even

if it were, Bird argues that these officials could not examine the sacks

since certainly no aliens could be hidden in coffee sacks. The

compartment, which was six feet by three feet by twenty inches, was

large enough to conceal an alien. In fact, it was the only enclosed area

of the truck in which an alien could be secreted. Furthermore, once the

compartment was opened and the coffee sacks came into view, these

officials, who had also been commissioned as Customs Officers, had the

authority to inspect the sacks. See United States v. Maggard, supra.

Finally, Bird contends that only hearsay evidence was presented at his

preliminary hearing and to the grand jury. This point is without merit.

See United States v. Klaes, F.2d (Sth Cir. 1972) [No. 71-2765,

February 4, 1972].

The judgment is affirmed.

UNITED STATED COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1971

No. 71-2832

Summary Calendar

D. C. Docket No. 71-L-307

UNITED STATES OF AMERICA, Plaintiff-Appallee,

vs.

GEORGE CURTIS BIRD, Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before BELL, DYER and CLARK,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the record from

the United States District Court for the Southern District of Texas, and

was taken under submission by the Court upon the record and briefs on

file, pursuant to Rule 18;

A3

ON CONSIDERATION WHEREOF, It is now here ordered and

adjudged by this Court that the judgment of the said District Court in

this cause be, and the same is hereby, affirmed.

Issued As Mandate: March 21, 1972

February 29, 1972

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 27170

UNITED STATES OF AMERICA, Plaintiff-Appellee,

vs.

DAVID L. MAGGARD, Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

(December 3, 1971)

Before TUTTLE, THORNBERRY and INGRAHAM,

Circuit Judges.

INGRAHAM, Circuit Judge: Appellant was tried by a jury on October

3, 1968, on an indictment charging him with smuggling seven pounds of

marihuana into the United States from Mexico, transporting such

marihuana knowing the same to have been illegally imported, both in

violation of Title 21, U.S.C.A., Section 176a, and failing to pay the

transfer tax on such marihuana in violation of Title 26, U.S.C.A.,

Section 4744(aX{(2).

After a directed verdict was entered on the smuggling count, the jury

found defendant guilty on both the transportation and transfer tax

counts. The district court set sentence at ten years on each count, to

run concurrently.

Defendant abandoned his original appeal, but this Court, on

November 24, 1970, granted his motion to file this direct appeal out of

time. We affirm.

The record before us indicates that defendant and a companion were

driving in their car when stopped by border patrol officers at a

checkpoint 8 miles north of Laredo, Texas, on August 3, 1968. After

questioning defendant somewhat and making a cursory examination of

the contents of his back seat, the border patrol officers allowed

defendant to pass. As the car passed through the checkpoint the officers

noticed that the rear of the car was riding low. Realizing the possibility

that defendant was transporting illegal aliens into the country from

A4

Mexico, the officers followed him up the road approximately 2 miles,

stopped his car, and searched his trunk. The headlights of the border

patrol car were directed into the open trunk, whereupon the offices

observed in plain sight @ plastic bag through which they recognized

particles of marihuana. The plastic bag in which the marihuana wa

carried had writing in Spanish on it, which indicated that the bag was

from a Mexican brand of detergent. Upon demand of customs agents,

defendant was unable to produce a United States Treasury transfer order

form for the seized marihuana.

Defendant first challenges the search which resulted in the marihuana

discovery. It is undisputed that border officials are authorized to

establish checkpoints within a reasonable distance from a border crossing

and, without a warrant, conduct searches for contraband. See, eg, 19

US.C.A. § 482 (1964). In the instant case defendant contends that the

search of his car cannot qualify as a border search because he had

already been cleared by the agents at the checkpoint. This contention

ignores clear language in United States v. Hill, Sth Cir. 1970, 430 F. 24

129, to the effect that the class of persons subject to a border search

includes “persons and vehicles after they have cleared an initial customs

checkpoint.” A suspect is therefore not immune from further

examination by customs agents merely because he may momentarily

escape and pass safely through the first customs check. Thomas y.

United States, Sth Cir. 1967, 372 F.2d 252. See also Jones v. United

States, 9th Cir. 1963, 326 F.2d 124, cert. denied, 377 US. 956, 84

S.Ct. 1635 (1964). We have no trouble in concluding that this search,

taking place within 2 miles and only a few minutes from the initial

checkpoint and precipitated by facts appearing at the initial check,

qualifies as a border search.

It is clear that border officials need less cause to initiate a search than

is required of law enforcement officers in other circumstances. Marsh y.

United States, Sth Cir. 1965, 344 F.2d 317; Ramirez v. United States,

Sth Cir. 1959, 263 F.2d 385; King v. United States, Sth Cir. 1958, 258

F.2d 754. Border searches are governed by the test of reasonable

suspicion, rather than that of probable cause. United States v. Tsoi

Kwan Sang, Sth Cir. 1969, 416 F.2d 306; Walker v. United States, Sth

Cir. 1968, 404 F.2d 900. Under this standard, defendant's nervousness

and suspicious behavior at the checkpoint and the automobile’s

appearance of being weighted in the rear furnished a reasonable basis for

the federal agent’s search for illegal aliens in the trunk. The marihuana’s

location on top of the luggage in the trunk easily satisfies the “plain

view” test. See Coolidge v. New Hampshire, US. |

Ct. (1971) (39 U.S.L.W. 4795, June 22, 1971).

Defendant next contends that evidence was insufficient to convince a

AS

jury beyond a reasonable doubt of his guilt on the transportation count.

This is based on his assertion that there was no evidence that the

marihuana was imported. Viewing the facts as they appear most

favorable to the government, Glasser v. United States, 315 U.S. 60, 62

S.Ct. 457 (1942),' the record shows the following. The defendant

possessed a plastic bag containing marihuana. The bag had Spanish

printing on it and was later determined to be a bag from a brand of

Mexican detergent. Defendant admitted obtaining the bag in Laredo,

Texas from a “Mexican.” These circumstances are coupled with the fact

that defendant was engaged on a trip from the interior of the country

to the Mexican border, across which it is common knowledge that large

quantities of narcotics are smuggled daily. We find these facts sufficient

to permit a jury inference that the marihuana came from Mexico and

that the defendant had knowledge thereof.

Finding no error in defendant’s conviction on the transportation

count, under the concurrent sentence doctrine we have no reason to

consider his allegations of error in regard to the transfer tax count.

United States v. Boatwright, Sth Cir. 1971, F.2d (No. 3119,

August 11, 1971); Juarez v. United States, Sth Cir. 1968, 394 F.2d 161,

cert. denied, 393 U.S. 942, 89 S.Ct. 311.

AFFIRMED.

"The district court wisely avoided charging the jury on the presumption of

importation on this county. We, therefore, are not presented with the issue of the

retroactivity of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532 (1969). See

United States v. Reinosa, Sth Cir. 1970, 427 F.2d 150; United States v. Pruneda,

Sth Cir. 1970, 425 F.2d 1289; Walden v. United States, Sth Cir. 1969, 417 F.2d

698.