United States v. Jose Arturo Portillo-Reyes

*846 OPINION

THE APPEAL

The defendant-appellant Jose Arturo Portillo-Reyes (hereinafter referred to as Reyes) appeals from his judgment of conviction and sentence to custody on four counts of violating 18 U.S.C. § 371 and 8 U.S.C. §§ 1324 (a)(1), 1324(a)(2), and 1324(a)(4). We reverse and remand.

THE PROCEEDINGS IN THE DISTRICT COURT

Reyes and a co-defendant Rogelio Reyna-Romero (hereinafter referred to as Romero) were indicted on one count of conspiracy and nine substantive counts of smuggling and unlawfully transporting aliens into the United States in violation of the congressional Acts above.

The charges against Romero upon the Government’s motion were severed for non-trial disposition.

Prior to trial, Reyes moved for an order suppressing the use as evidence against him of, inter alia:

The District Court held an evidentiary hearing and orally denied the motion. The District Court made no findings of fact in support of the minute order denying the motion, except the oral statement that “[Senior Patrol Agent Endler (hereinafter referred to as Endler)] had the key to the car which I think will give plenty of probable cause.”

Reyes was tried to a jury and convicted of the…

(dissenting):

I am obliged to dissent. The majority opinion acknowledges that the government agents had reasonable ground for a “founded suspicion” that appellant’s automobile and its occupant were connected with the illegal entry of the four aliens. This, says the majority, “justified and rendered reasonable the agent’s window-tap invasion of Reyes’ privacy to ascertain his identity and to ask for an explanation of the suspicious circumstances.”

The opinion itself states that “[t]he decisions of this court are replete in establishing the doctrine [that] a ‘founded suspicion’ to stop for investigatory detention [can be] converted or ripened into a probable cause to arrest or search through the occurrence of after-the-stop facts and incidents.” But the opinion then says that the agents lacked proba *852 ble cause since they had not determined that the key found on Romero fit Portil-lo-Reyes’ car prior to the search. All of this is based on the premise that “the insertion of the key in the door of the Volkswagen to see if it fit constituted the beginning of the search.”

No authority is cited in support of this premise. Precedent seems to be to the contrary. In People v. Carroll,…

529 F.2d 844 UNITED STATES of America, Plaintiff-Appellee, v. Jose Arturo PORTILLO-REYES, Defendant-Appellant. No. 75--1940. United States Court of Appeals, Ninth Circuit. Nov. 17, 1975. Rehearing and Rehearing En Banc Denied April 2, 1976. 1 James Meyers, Asst. U.S. Atty. (argued), Harry D. Steward, U.S. Atty., William E. Derbonne, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee. 2 Michael J. McCabe (argued), of Federal Public Defendants, San Diego, Cal., for defendant-appellant.OPINION 3 Before ELY and WRIGHT, Circuit Judges, and EAST, * Senior District judge. EAST, Senior District Judge: THE APPEAL 4 The defendant-appellant Jose Arturo Portillo-Reyes (hereinafter referred to as Reyes) appeals from his judgment of conviction and sentence to custody on four counts of violating 18 U.S.C. § 371 and 8 U.S.C. §§ 1324 (a)(1), 1324(a)(2), and 1324(a)(4). We reverse and remand. THE PROCEEDINGS IN THE DISTRICT COURT 5 Reyes and a co-defendant Rogelio Reyna-Romero (hereinafter referred to as Romero) were indicted on one count of conspiracy and nine substantive counts of smuggling and unlawfully transporting aliens into the United States in violation…