United States v. Louis Leyva-Barragan, United States of America v. Otila Navaira-Perez

These appeals are taken from convictions of violations of 21 U.S.C. § 176a for having received, concealed and facilitated the transportation and concealment of marijuana. The case must be remanded for new trial under Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969), handed down after trial but during pendency of this appeal and made applicable to this case by our recent decision in United States v. Scott, 425 F.2d 55 (9th Cir. March 6, 1970).

Certain issues raised on appeal involve questions that will arise again on new trial. Accordingly we deal with them.

Appellants were arrested in Nogales, Arizona, June 26, 1967. Prior to arrest they had twice been observed in each other’s company in Nogales, Mexico. Later, appellant Perez crossed the United States border in a car. It was thoroughly searched but nothing was recovered. At the same time appellant Barragan crossed the border on foot. He, too, was searched but nothing was recovered. Thereafter the Perez car was kept under surveillance. It was observed making many U-turns. Appellant Barragan was picked up by appellant Perez and the car started to head north. Border police then stopped the car by siren and…