United States v. Joe Anthony Archuleta

446 F.2d 518 UNITED STATES of America, Plaintiff-Appellee, v. Joe Anthony ARCHULETA, Defendant-Appellant. No. 71-1214. United States Court of Appeals, Ninth Circuit. July 21, 1971. Rehearing Denied September 9, 1971. S. Jeffrey Minker, (argued), Tucson, Ariz., for appellant. James M. Wilkes, Asst. U. S. Atty., (argued), Richard K. Burke, U. S. Atty., Tucson, Ariz., for appellee. Before CHAMBERS, BROWNING, and ELY, Circuit Judges. PER CURIAM: 1 Archuleta appeals from his conviction for receiving, concealing and facilitating the transportation of heroin in violation of 21 U.S.C. § 174 . We affirm. 2 1. The arresting officer had probable cause to make the search of which appellant complains. Over a period of several months the arresting officer had received information from the New Mexico State Police and the Bureau of Narcotics and Dangerous Drugs that Clarence Romero was suspected to be a large scale trafficker in heroin. On August 13, 1970, a narcotics agent apprised the arresting officer of the following tip from an anonymous informer: 3 "The information was that Clarence Romero of Albuquerque, New Mexico, had flown to Tucson, Arizona, that morning, the morning of the 13th…

Archuleta appeals from his conviction for receiving, concealing and facilitating the transportation of heroin in violation of 21 U.S.C. § 174 . We affirm.

1. The arresting officer had probable cause to make the search of which appellant complains. Over a period of several months the arresting officer had received information from the New Mexico State Police and the Bureau of Narcotics and Dangerous Drugs that Clarence Romero was suspected to be a large scale trafficker in heroin. On August 13, 1970, a narcotics agent apprised the arresting officer of the following tip from an anonymous informer:

The arresting officer went to the Tucson International Airport. He learned that a “C. Romero” had booked one-way passage from Tucson to Albuquerque on TWA flight 239 scheduled to leave at 2:50 p. m. Thereafter, he observed appellant boarding the flight. He mistook appellant for appellant’s brother; but, in any event, he knew that both Archule-tas were associates of Romero. He was informed by the ticket receiving clerk that the ticket presented by appellant bore the name “C. Romero.” He boarded the plane, approached appellant, identified himself, and asked appellant if he was Mr. Romero.…

(dissenting):

I respectfully dissent. In the light of the Supreme Court’s very recent decision in Whitely, I believe that the majority’s disposition of the appeal is mistaken. My Brothers undertake, in one sentence, to distinguish Whitely. I do not criticize their brevity, but I do most strongly disagree that the suggested distinction is so sufficiently adequate as to avoid the thrust of the Supreme Court’s latest expression with respect to the type of warrantless arrest and search to which the appellant in our case was subjected. The police “guessed” that they had the right man, but the fact that they were good “guessers” cannot, of course, be equated with the probable cause which is the indispensable prerequisite for an arrest and which, in my opinion, was nonexistent when the arrest in this case was made.