United States v. Arthur Joseph Avey, and Larry Richard Dean

This is an appeal from appellants’ convictions at jury trial on one count of knowingly concealing eighty pounds of marihuana after it had been imported into the United States contrary to law and with appellants’ knowledge, in violation of 21 U.S.C. § 176a.

The relevant facts of the case are as follows: A United States Customs official testified at trial that at approximately 5:30 P.M. on February 23, 1969, appellants drove a 1955 station wagon across the Mexican-American border at Nogales, Arizona. He made a thorough search of the vehicle and discovered no contraband although he recognized the odor of marihuana in the vehicle. More than two hours later, appellants passed a checkpoint set up by two inspectors of the Immigration and Naturalization Service on the Nogales-Tucson highway some twelve miles north of Nogales. The officials testified that they stopped appellants’ vehicle to search for aliens not lawfully admitted into the United States. Shining a flashlight into the back of the station wagon, one inspector observed in plain sight several packages wrapped in red cellophane and protruding from under a canvas tarp. The inspector lifted the tarp and discovered more packages.…