Luis L. Cervantes v. United States

Luis L. Cervantes appeals from his conviction on the first two counts of a three-count indictment charging violations of the narcotic laws. This is the second time Cervantes has been convicted under this indictment. As a result of a previous trial Cervantes was convicted on all three counts. However, on appeal we reversed and remanded with directions which led to the granting of a new trial. Cervantes v. United States, 9 Cir., 263 F.2d 800 .

The single question presented on the previous appeal was whether exhibits consisting of narcotics and a hypodermic syringe should have been excluded as having been obtained by means of an unreasonable search and seizure, contrary to the Fourth Amendment. These articles were found in Cervantes’ automobile on the evening of December 8, 1955, when he was stopped on the highway by a customs inspector at San Clemente, California.

Since the officer who stopped Cervantes did not have a warrant for his arrest or search, the reasonableness of the search and seizure depended upon a showing of probable cause. Carroll v. United States, 267 U.S. 132, 155-156 , 45 S.Ct. 280 , 69 L.Ed. 543 . The burden of making such a showing is upon the government.…