United States v. Nick Victor Bergera, United States of America v. David Lynn Mitchell

512 F.2d 391 UNITED STATES of America, Plaintiff-Appellee, v. Nick Victor BERGERA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Lynn MITCHELL, Defendant-Appellant. Nos. 72-2913 and 72-3049. United States Court of Appeals, Ninth Circuit. Jan. 21, 1975. Rehearing and Rehearing En Banc Denied June 25, 1975. 1 Frank R. Ubhaus, Asst. Federal Public Defender (argued), San Francisco, Cal., for defendants-appellants. 2 James Hazard, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee. 3 Before CHAMBERS and ELY, Circuit Judges, and MURRAY, * District Judge. OPINION WILLIAM D. MURRAY, District Judge: 4 On November 10, 1971, a Volkswagen bus, imported from Rotterdam, Holland, was unladen at Pier 9, San Francisco, California. The bus was given a routine Customs examination with the aid of a dog trained to detect marijuana. The dog indicated that marijuana was concealed behind the right and left rear quarter panels. The substance was analyzed and found to be marijuana. 5 The bus was kept under continuous surveillance by Customs officers from November 10 through November 18, 1971. 6 On November 12, 1971, at approximately 4:20 P.M. the bus was…

On November 10, 1971, a Volkswagen bus, imported from Rotterdam, Holland, was unladen at Pier 9, San Francisco, California. The bus was given a routine Customs examination with the aid of a dog trained to detect marijuana. The dog indicated that marijuana was concealed behind the right and left rear quarter panels. The substance was analyzed and found to be marijuana.

The bus was kept under continuous surveillance by Customs officers from November 10 through November 18, 1971.

On November 12, 1971, at approximately 4:20 P.M. the bus was picked up by a Kymry Simonds at Pier 9. Kymry *392 Simonds drove the bus to the middle of the 200 block of Miller Avenue, Mill Valley, California, where she parked the vehicle. On November 18, 1971, at approximately 3:35 A.M., a Volkswagen bus bearing California license 464 BPW parked behind the Volkswagen bus containing the marijuana. This bus had two occupants, later identified as Nick Bergera and David Lynn Mitchell, registered owner of the Volkswagen bus bearing California license 464 BPW.

At approximately 3:50 A.M. a tow truck arrived and towed the Volkswagen bus containing the marijuana to 34 Rice Street, Daly City, California,…

(dissenting):

I dissent. As I see it, the majority whittles down our Campbell v. United States District Court, 501 F.2d 196 (9 Cir., 1974). I cannot agree with the concept that a district judge can accept without hearing, as in Campbell, a magistrate’s ruling (recommendation), but he must hold a hearing de novo before he can reverse. In practice, fair as the judge may be, if he exercises a discretion to hold a hearing, it will usually mean that he has almost made up his mind to reverse the magistrate. That is not good.

For the most part, the evidence before the magistrate was undisputed. As to the small amount of disputed evidence, the magistrate made no findings. As I see it, the district judge really ruled on the motion as a matter of law.

*395 Here, there was an added protection to defendants. All but one of the witnesses before the magistrate later testified at the trial. If the trial judge later at the trial came to the conclusion that certain witnesses before the magistrate were unreliable, he had continuing jurisdiction over the motion to suppress. Doubtless he would have reversed his earlier ruling if he had seen any reason during the trial to do so.

Maybe Campbell is…