# Petition for Writ of Certiorari — Bird v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 413 U.S. 919

## Text

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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PON EE RP RETR ON EONS EROS REET PABA NI) BAO EE IGN RE IRIN GT MUS ELBE STONER

TABLE OF CASES

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

SEE ie diciaaue hue shssn06esns seudeeccneen sce, 10
Brinegar v. United States, 338 U.S. 160,

EE OU Ge eal auauve ce baka'ese4waeedeeuuus 8
Carrol v. United States, 267 U.S. 132,

EE foo ncn cwkgséokanws see deans uceccey 7
Chambers v. Maroney, 399 U.S. 42,

oo AES ere pret a eae Reo k 8
Coolidge v. New Hampshire, US. ,

NIN cee ek aR te el es 8
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

ie ete ee ale pe oes sue teat oee 9
Morales v. United States, 378 F.2d 187

I ga ee 9
Roa-Rodriquez v. United States, 410 F.2d

NN ree auan aus ll
Thomas v. United States, 372 F.2d 254

I tet gt ae es ie a aad 10
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

re, Sree. Gee 00. OD eg one ccc ckscccoueececac 1]
United States v. Maggard, F.2d ,

5 Cir., 1971 (No. 27170, December 3, 1971) ................. 7
United States v. Tsoi Kwan, 416 F. 2d 306

RRR RN Ae ee ee ee TO PERCE pO eT 10
Walker v. United States, 404 F. 2d 900

SE vadeihscaandeuckcnvesvudderauseseceieuene 10

STATUTES CITED

BUS.C. § 1357(aX3) ..-.---- Pee er ee ern a ear 3
GE OO REP RIE CCL Pete rier ont oreren te 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;

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0376%3A1. Public record. Not legal advice.