Lawrence Raymond King, Appellant, v. United States of America, Appellee, 348 F.2d 814 (9th Cir. 1965)

Lawrence R. King, appellant herein, was charged in an indictment returned by the United States Grand Jury for the Southern District of California, Southern Division, in two counts: One, with smuggling approximately 500,000 amphetamine tablets, which merchandise should have been invoiced; and Two, with fraudulently and knowingly receiving and concealing approximately 500,000 amphetamine tablets which to his knowledge had been imported into the United States contrary to law, a violation of 18 U.S.C. § 545.¹ 

After a trial by jury King was convicted on both counts and given concurrent sentences thereon. The following facts were established by the evidence. At approximately 6:30 p. m. on March 6, 1964, United States Customs Agent J. D. Maxcy received information at his home at Chula Vista that appellant had gone to Tijuana, Mexico, to acquire a large quantity of amphetamine pills. The information had originally been received by a Sergeant Goodwin of the Los Angeles sheriff's office from an informant. Goodwin notified Inspector Larkworthy of the United States Food and Drug Administration, who in turn notified John Blockman, United States Customs Agent in Charge. Blockman then telephoned Agent Maxcy. The information received also disclosed that appellant would be driving one of two automobiles, which were described by model, color and license number and that appellant would cross the border "shortly after the race track or jai alai crowd broke in Mexico, which would be between 11 and 11:30 p. m." Agent Maxcy was further informed that appellant would probably make three separate trips, and that on the completion of the first trip he might "conceal or stash these pills in the Chula Vista or South bay area." At approximately 11:30 p. m. Maxcy observed a Cadillac automobile, which was one of the two cars which had been described to him, enter the United States through the port of entry. He did not stop the car at the border,²  but followed it for about eight miles until it had passed the "E" Street cutoff in Chula Vista where Maxcy stopped it. Maxcy identified himself as a customs agent and asked King if he were bringing any contraband from Mexico. When King replied in the negative, Maxcy asked him if he minded if they looked at the vehicle and he again replied in the negative. The vehicle was then searched, and, in a specially-built compartment in the trunk, the amphetamine tablets in question were found. Prior to trial a motion to suppress this evidence was denied by the court. During this motion to suppress, appellant's counsel requested the identity of the informant. The court ruled that this was a border search and that the identity of the informant was not material to the legality of the seizure.

Appellant makes three specifications of errors: (1) The contraband evidence upon which the conviction is predicated was seized illegally by officers of the United States Government; (2) the court erred in admitting an incriminatory statement by appellant after he had been arrested; and (3) the court erred in failing to grant a short continuance in order for appellant to demonstrate the materiality of the informant's identity on the question of guilt or innocence.

To establish his first specification of error, appellant contends that there was no probable cause to search his vehicle, and that, therefore, the contraband found in that search should not have been admitted in evidence. Putting aside the fact that there was evidence that appellant consented to the search, we point out that the district court held that this was a border search. We agree. As was stated in Murgia v. United States, 285 F.2d 14 at 16 (9th Cir. 1960), "No customs search can be made precisely at the border. All must be made somewhere north of the border between Mexico and the United States." In Marsh v. United States, 344 F.2d 317 at 324 (5th Cir. 1965), the court said, "The right of border search is indeed broad, and the border itself is elastic."

In this case the Customs Agent had received information that day that appellant was in Tijuana, Mexico, for the purpose of acquiring a vast amount of amphetamine tablets, and that on the same evening appellant, driving a particularly described vehicle, would bring these tablets into the United States from Mexico, probably making three separate trips. The information was further that on completion of the first trip the tablets might be concealed in the Chula Vista or South Bay area. Agent Maxcy followed the car, keeping it in view at all times. When he saw that the vehicle had not made a turn off from the highway into Chula Vista and when it appeared that appellant might be going to Los Angeles, he then stopped the vehicle, questioned the appellant, and thereafter searched the vehicle and found the contraband.

It thus appeared from the evidence that there had been no change of condition of the auto from the time it crossed the border until it was stopped. Whatever was in the auto when it was stopped was in it when it crossed the border. We hold that where, as here, duly authorized officers receive information that a person or vehicle is about to cross the border with contraband in violation of the laws of the United States, and where shortly thereafter a person or vehicle conforming substantially to the description thereof given to such officers is seen to cross the border, and where such person or vehicle is followed therefrom by said officers and kept under surveillance until stopped and searched, and where there is no reason to believe that there is any change in condition of such person or vehicle from that at the border so that whatever such vehicle contains or such person possesses at the time the search is made is the same as it was at the border, and where no unreasonable time elapses between the border crossing and the search and there is no unreasonable distance between the border and place the search is made, such search may be held to be a border search.³ 

This being a border search, special rules are applicable. The statutes involved are set out in the margin.⁴  As we said in Witt v. United States, 287 F.2d 389 at 391 (9th Cir. 1961):

"No question of whether there is probable cause for a search exists when the search is incidental to the crossing of an international border, for there is reason and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone. That the customs authorities do not search every person crossing the border does not mean they have waived their right to do so, when they see fit. Here a precise description of the automobile in which appellant rode across the border (though not of its passengers) had been passed to the border guards as one being a possible bearer of heroin. This it was ultimately found to be. Mere suspicion has been held enough cause for a search at the border. Cervantes v. United States, 9 Cir., 1959, 263 F.2d 800, 803, note 5." (Emphasis original)

Similarly, in Murgia, supra 285 F.2d at 17, we said:

"The right of border search does not depend on probable cause. Carroll v. United States, 1924, 267 U.S. 132, 154, 45 S. Ct. 280, 69 L. Ed. 543. Cf.: People v. Brown, 1955, 45 Cal. 2d 640, 290 P.2d 528; Johnson v. United States, 1948, 333 U.S. 10, 16-17, 68 S.C. 367, 92 L. Ed. 436; People v. Simon, 1955, 45 Cal. 2d 645, 290 P.2d 531. ` [The] searches of persons entering the United States from a foreign country are in a separate category from searches generally * * * [and] "are totally different things from a search for and seizure of a man's private books and papers * * *."' King v. United States, 5 Cir., 1958, 258 F.2d 754, at page 756, certiorari denied 359 U.S. 939, 79 S. Ct. 652, 3 L. Ed. 2d 639, quoting Boyd v. United States, 1886, 116 U.S. 616, 623, 6 S. Ct. 524, 29 L. Ed. 746. Cf.: Blackford v. United States, 9 Cir., 1957, 247 F.2d 745, certiorari denied 356 U.S. 914, 78 S. Ct. 672, 2 L. Ed. 2d 586; United States v. Yee Ngee How, D.C.N.D. Cal., 1952, 105 F. Supp. 517."

See also Marsh v. United States, supra, 344 F.2d at 324, where it is said:

"Border searches are, of course, not exempt from the constitutional test of reasonableness. A true border search, however, is not regarded as unreasonable even though made without probable cause."

Sound policy considerations support the special treatment accorded border searches. Congress as well as the courts have thus recognized the peculiar and difficult law enforcement problems that necessarily are presented by the effective policing of our extensive national boundaries.

Under the above rules we hold that the evidence upon which the conviction in this case was based was not seized illegally.

The evidence concerning appellant's second specification of error discloses that after the search of appellant's automobile, Agent Maxcy talked to appellant in the office of the Customs Agency Service at the port of entry. There, appellant was informed by Agent Maxcy that "we were going to ask him a few questions pertaining to the contraband found in his vehicle, and that it was my duty to advise him under the Constitution of the United States he was under no duty to answer any questions that we asked him, and that he was entitled to be represented by an attorney should he so desire, and that anything he did say could be used against him should we have any future court proceedings." Appellant gave his name and occupation, disclosed that he had left his home in Long Beach about six p. m. on March 6th, that he had driven to Tijuana, Mexico, by himself, and that he had gone to the dog races there. When asked questions pertaining to the pills found in the automobile, appellant stated "he had no comment to make about the pills at that time."

About an hour later appellant was taken by Agent Maxcy and another agent in an automobile from the port of entry to San Diego to be booked. During this ride certain questions were asked by Agent Maxcy and certain answers given by appellant. There was also a voluntary statement made by appellant. Upon appellant's objection to the offer of this evidence, the jury was excused, and in the absence of the jury, Agent Maxcy testified as shown in the footnote.⁵  After hearing appellant's counsel's objections to the offer of this testimony, the court indicated that he would not admit the two answers to the questions, but that he would admit appellant's voluntary statement. The jury was then recalled and Maxcy testified before the jury as follows:

"Q [By Mr. Johnson] Agent Maxcy, in your conversation in the vehicle with the defendant, Mr. King, was the word `bread' mentioned?

"A Yes, sir, it was.

"Q And what was said, and by whom?

"A Mr. King stated to myself and Inspector Addis that the biggest problem was getting them home. However, once you get a taste for bread, you can get yourself in a lot of trouble."⁶ 

We see no error in the introduction of this evidence.

Likewise, there is no merit in appellant's third specification of error for two reasons. First, since the district court properly held that this was a border search, probable cause for the search and demonstration of sufficient reliable information to create probable cause was not required; consequently, appellant was not necessarily entitled to knowledge of the identity of the informer. Secondly, in the course of counsel's discussion with the court concerning the production of a deputy sheriff of Los Angeles named Burman who knew the identity of the original informer, it was stipulated by both counsel that if the deputy sheriff were called he would refuse to answer questions concerning the identity of the informer or the exact details of the informer's information or activity. Then, the proceedings as set out in the footnote occurred.⁷  As shown by the record, counsel was offered the opportunity of producing essential evidence and decided that he would not take advantage of that offer. We see no error in the ruling of the court.

Judgment affirmed.