United States v. James Edward Powell and Kenneth Wayne Wheeler

Codefendants Wheeler and Powell appeal from their respective convictions for violating 21 U.S.C. § 176a. Both appellants challenge the legality of the search that revealed the marihuana. Wheeler attacks the sufficiency of the evidence to sustain his conviction.

On the evening of September 13, 1970, a border patrol agent saw a pickup truck stop on a road about a mile and a half from the Mexican border. The truck lights were off, and the driver got out of the vehicle and lifted the hood. Someone milled around the truck. The agent notified two other agents about the stopped truck. About 15 minutes after the truck had stopped, the hood went down and the truck was driven a short distance to the south, then turned around and moved north. The two agents who had been contacted had kept the truck in view, and shortly after the truck turned around, the agents stopped it. One of the agents saw two backpacks in the rear of the truck from one of which protruded a package that appeared to be a kilo brick of marihuana. Thereupon, the agents searched the truck and found 165 pounds of marihuana.

Agent Spence observed footprints around the place the truck had initially stopped. The tracks…