United States v. Laurie Ann Ogilvie

(dissenting):

In my opinion, there was no constitutional defect in the stop of Ogilvie’s car, and, therefore, I would reverse the order of suppression.

Ogilvie left the freeway within view of the checkpoint but before coming to it. This conduct was perhaps not as blatantly suspicious as that of the defendant in United States v. Garcia, 516 F.2d 318 (9th Cir. 1975), who, having been stopped at the checkpoint, sped away at high speed. But in my view, the timing of Ogilvie’s exit from the highway — occurring as it did right before the checkpoint — was suspicious enough to justify a stop for questioning. Every driver has at one time or another missed his or her proper exit or suddenly remembered an item that was inadvertently left behind and for one of those reasons found it necessary to reverse the direction of travel on a highway. However, what under some circumstances may be routine behavior ceases to appear to be such when a coincidence of events makes it look as though the person is intentionally trying to avoid a possible confrontation with the police. Ogilvie’s conduct in this case had this earmark. Although, contrary to subsequent developments, the stop for questioning might…

Ogilvie was indicted for possession of marijuana with intent to distribute it in violation of 21 U.S.C. § 841 (a)(1). The district court granted her motion to suppress the marijuana, and the government appeals. We affirm.

I. Facts.

On Sunday, July 28, 1974, United States Border Patrol agents were operating a traffic checkpoint on Interstate Highway 19 near Nogales, Arizona. 1 The checkpoint was set up under the Peck Canyon Road overpass, approximately 14 miles north of the Mexican border. Four marked government vehicles were parked on the median strip separating northbound and southbound lanes of 1 — 19; cone shaped red markers were placed to cause northbound traffic to merge to a single lane; two stop signs with flashing red lights were placed beside the single lane. All cars going north were being stopped.

At about 9:00 a.m., Ogilvie was driving north on 1-19. She was alone in a 1968 Ford Mustang with Arizona license plates. Before reaching the checkpoint she signalled a right turn and left 1-19 on the Peck Canyon Road off-ramp. She proceeded to the top of the ramp, stopped, turned left, crossed over 1-19 and the checkpoint on the overpass, turned left again, drove…

527 F.2d 330 UNITED STATES of America, Plaintiff-Appellant, v. Laurie Ann OGILVIE, Defendant-Appellee. No. 74--3487. United States Court of Appeals, Ninth Circuit. Sept. 15, 1975. James Mueller, Asst. U.S. Atty. (argued), Tucson, Ariz., for plaintiff-appellant. Mark B. Raven (argued), Tucson, Ariz., for defendant-appellee. OPINION Before MOORE, * DUNIWAY and WRIGHT, Circuit Judges. DUNIWAY, Circuit Judge. 1 Ogilvie was indicted for possession of marijuana with intent to distribute it in violation of 21 U.S.C § 841(a)(1). The district court granted her motion to suppress the marijuana, and the government appeals. We affirm. 2 I. Facts. 3 On Sunday, July 28, 1974, United States Border Patrol agents were operating a traffic checkpoint on Interstate Highway 19 near Nogales, Arizona. 1 The checkpoint was set up under the Peck Canyon Road overpass, approximately 14 miles north of the Mexican border. Four marked government vehicles were parked on the median strip separating northbound and southbound lanes of I--19; cone shaped red markers were placed to cause northbound traffic to merge to a single lane; two stop signs with flashing red lights were placed beside the single lane. All…