United States v. Stephen Kirk Heiden, United States of America v. Larry Arnold Klein

Heiden and Klein appeal their convictions, following a nonjury trial, of unlawful possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). Both were in a vehicle which was stopped by Border Patrol agents at the San Onofre fixed checkpoint and found to have approximately 110 pounds of marijuana in the trunk. They raise questions concerning claimed Fourth Amendment violations, sufficiency of the evidence to sustain the judgment and loss of certain evidence. We affirm.

The vehicle was stopped at the San Onofre checkpoint on April 24, 1972, and, because it was “setting low” in the rear, was directed to a secondary inspection area to be searched for illegal aliens. Agent Brady told the driver of the vehicle, Klein, to open the trunk but Klein responded that he could not do so because he had loaned the car to his sister who still had the trunk keys. Klein was directed to remove the back seat but responded that he did not know how to do so. Agent Batchf elder then entered the car and, together with Klein, removed the seat. Batchf elder smelled marijuana and directed Brady to “go in and take a look.” Brady entered the vehicle and saw a cardboard…

concurs, concurring:

I concur in Judge Wallace’s opinion but wish to lend emphasis to his warning in footnote 1. Cases will arise where the contraband destroyed does have potential usefulness as evidence not possessed by the sample retained. When this occurs and destruction is shown to have been prejudicial, reversal is called for. I would say that the practice apparently followed in the Southern District invites reversal. I would urge that it be halted; that destruction of evidence follow only after petition and order directed to the particular items to be destroyed, with notice to the defendant and opportunity to petition for access to that which has been seized.

508 F.2d 898 UNITED STATES of America, Plaintiff-Appellee, v. Stephen Kirk HEIDEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry Arnold KLEIN, Defendant-Appellant. Nos. 73-1471 and 73-1570. United States Court of Appeals, Ninth Circuit. Dec. 16, 1974. R. N. Harris, Jr., Harris & Hoffman, Los Angeles, Cal. (in 73-1471), Sherman Ellison, Beverly Hills, Cal., for defendants-appellants. Harry D. Steward, U.S. Atty., San Diego, Cal., for plaintiff-appellee. Before MERRILL and WALLACE, Circuit Judges, and PECKHAM, * District judge. OPINION WALLACE, Circuit Judge: 1 Heiden and Klein appeal their convictions, following a nonjury trial, of unlawful possession of marijuana with intent to distribute in violation of 21 U.S.C. 841(a)(1). Both were in a vehicle which was stopped by Border Patrol agents at the San Onofre fixed checkpoint and found to have approximately 110 pounds of marijuana in the trunk. They raise questions concerning claimed Fourth Amendment violations, sufficiency of the evidence to sustain the judgment and loss of certain evidence. We affirm. 2 The vehicle was stopped at the San Onofre checkpoint on April 24, 1972, and, because it was…