United States of America, Plaintiff-appellee, v. Donald Ray Moffett and Ronald Ray Gernon, Defendants-appellants, 522 F.2d 1379 (5th Cir. 1975)

This is an appeal from convictions of conspiracy to import and possess 39 pounds of marijuana with intent to distribute, and of importing and possession charges with respect to the same quantity of marijuana. Appellants have urged as reversible error the district court's failure to hold a Jackson v. Denno voluntariness hearing outside the jury's presence pursuant to 18 U.S.C. § 3501, the failure of the Border Patrol officers to give appellants Miranda warnings before requesting appellants to open the trunk of their car, in which the marijuana was ultimately discovered, and the legality of the search and seizure of their vehicle and the marijuana.

Title 18, section 3501 of the United States Code requires a federal court to hold a hearing outside the presence of the jury if there is "any issue as to voluntariness" with respect to incriminating statements or a confession purportedly made by the defendant. Appellants' counsel did make a pre-trial motion to suppress their oral statements, and renewed this motion several times during the trial, but a careful reading of the record reveals that the basis of these objections was as to the timeliness of the Miranda warnings given appellants by the Border Patrol agents who effected the stop and search. Consequently no issue of voluntariness was raised, either before or during the trial which would have required the trial court to hold a § 3501 hearing outside the jury's presence.¹ 

At oral argument, appellant's counsel conceded that there existed the requisite "reasonable suspicion" to justify the stop of appellants' car made by the Border Patrol agents. See United States v. Briguoni-Ponce, --- U.S. ---, 95 S. Ct. 2574, 45 L. Ed. 2d 607, 43 U.S.L.W. 5028, 5032 (1975). Once the stop was made, however, appellants argue, they were entitled to be given Miranda warnings before the agents could request them to open the trunk, and the failure to give these warnings rendered the search and all that followed therefrom inadmissible. We are aware of no authority that supports the claim that the precepts of Miranda are applicable to a Fourth Amendment search and seizure claim. Upon effecting a stop admittedly justified by the existence of a "reasonable suspicion" that the car contained illegal aliens, the Border Patrol agents requested appellants to open the trunk and appellants complied. Once the trunk was open, the agents testified, they detected an odor of marijuana, which furnished the requisite probable cause to justify the search which followed. See United States v. Santibanez, 517 F.2d 922 (5th Cir. 1975).

We have considered appellants' other points of error but find them to be without merit.

Judgment affirmed.