Unpublished Disposition, 863 F.2d 887 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 863 F.2d 887 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.John Elmer JOHNSON, Defendant-Appellant.

No. 87-5366.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1988.Decided Dec. 1, 1988.

Before SCHROEDER, REINHARDT, and LEAVY, Circuit Judges.


Appellant John Elmer Johnson appeals from his conviction, following a conditional guilty plea, for possession with intent to distribute approximately 835 pounds of marijuana. Johnson was sentenced to five years in jail and fined fifty dollars under the mandatory sentencing provisions of the Narcotics Penalties and Enforcement Act of 1986, 21 U.S.C. § 841(b). On appeal, Johnson argues that (1) the trial court erred in prohibiting him from carrying out certain experiments in preparation for a suppression hearing and that (2) Sec. 841(b) violates the due process clause and the equal protection component of the Fifth Amendment and the prohibition against cruel and unusual punishment contained in the Eighth Amendment.1  We affirm.

On April 29, 1987, two U.S. Border Patrol Agents, parked about ten miles south of the Temecula, California Immigration checkpoint, observed a Ford pickup truck equipped with a camper shell on its back heading North along Highway I-15. The side windows on the camper shell were darkened, and the rear window was obscured with a towel. As the truck passed the marked border patrol vehicle, the driver of the pickup rapidly shifted lanes and accelerated. Because the I-15 corridor is commonly used to transport illegal aliens and the truck fit the profile of a smuggler's vehicle, the agents pulled out and followed Johnson's truck for approximately one mile. During that interval, they noticed that the truck was "riding low," indicating the presence of unusually heavy cargo. After the truck exited I-15 at a point commonly used by smugglers to avoid the Temecula checkpoint, the agents stopped the truck and requested permission to search the vehicle. Johnson consented. Between 800 and 850 pounds of marijuana were uncovered under the camping shell.

After his arrest, appellant moved to suppress the introduction of the marijuana into evidence. He argued that the Border Patrol agents lacked a reasonable suspicion for stopping his vehicle. See United States v. Cortez, 449 U.S. 411, 417-18 (1981). To support his theory, Johnson petitioned for use of his pickup truck to conduct experiments that might impeach the government's assertion that the "nose of the truck was up in the air and the back slanted downward." Specifically, Johnson requested the opportunity to videotape his impounded truck, laden with 850 pounds, cruising at 60 miles an hour along I-15. The trial court rejected his request but permitted Johnson to experiment under controlled conditions in the parking lot of the Encinitas Sheriff's Station. Johnson now contends that the district court erred in denying him the opportunity to fully perform his tests.

Admission of experimental evidence is within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of discretion. Champeau v. Fruehauf Corp., 814 F.2d 1271, 1278 (8th Cir. 1987); United States v. Polizzi, 801 F.2d 1543, 1555 (9th Cir. 1986). Although this case does not involve the introduction of experimental evidence but instead the opportunity to produce that evidence, we conclude that this analytical distinction is irrelevant to the appropriate standard of review; the control of seized evidence for the purposes of evidentiary experiments lies within the sound discretion of the trial judge.

In this case, appellant was allowed to use his truck for the purposes of a limited experiment. His hired investigator was permitted to take the truck out to the Sheriff's parking lot, to load over eight hundred pounds of sand into the flatbed portion of the impounded vehicle, and to measure and photograph the loaded--and unloaded--truck to determine the differential. The resulting evidence, including the investigator's testimony as to the relative appearances of the loaded and unloaded trucks, was introduced at the suppression hearing to impeach the testimony of the Border Patrol agents. No significant limitations were placed on the introduction of the results of these tests or the observations of appellant's experts. It is entirely speculative to argue that taking the truck out onto Highway 15 would have produced different or more dramatic results.2 

Against this backdrop of limited marginal relevance, the district court had to weigh the time and expense of taking the truck--under guard--onto the interstate highway. Even though the defense offered to reimburse the government for any costs, the diversion of police personnel from normal duty involves a resource expense that could reasonably outweigh the very limited benefits of the more elaborate experiment designed by appellant. Under these circumstances, we cannot say that the trial court abused its discretion in limiting Johnson's experiments.



At oral argument, counsel for appellant conceded that recent Ninth Circuit decisions render his constitutional claims untenable at this level. See United States v. Savinovich, 845 F.2d 834, 839 (9th Cir. 1988). We therefore find it unnecessary to discuss his challenges to the Narcotics Penalties and Enforcement Act


Appellant's experiments showed that the truck rode only a half inch lower after loading the 880 pounds of sand. Nevertheless, the trial court still credited the accuracy of the agent's testimony. Appellant does not, and cannot, argue that the highway experiment would have revealed any results substantively different from the parking lot demonstration; on appeal, his suggestion appears to be that the visual effect of the truck moving at 60 miles an hour might have influenced the trier of fact. Given the fact that Judge Keep thought that an experienced Border Patrol agent might be able to detect differences as subtle as one half inch, it is hard to imagine that the videotape would have had any value for the defendant. Even if appellant had discredited that part of the agent's testimony, there appears to be ample evidence to support the stop under the reasonable suspicion test of United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975)