United States v. Stella Young, United States of America v. Ronnie J. Enright

535 F.2d 484 UNITED STATES of America, Appellee, v. Stella YOUNG, Appellant. UNITED STATES of America, Appellee, v. Ronnie J. ENRIGHT, Appellant. Nos. 75-2044, 75-2040. United States Court of Appeals, Ninth Circuit. March 31, 1976. 1 Irma E. Dirst, Asst. U. S. Atty. (argued), Tucson, Ariz., for appellee. 2 Alex A. Gaynes (argued), Michael J. Brown (argued), Tucson, Ariz., for appellants. OPINION 3 Before ELY and WALLACE, Circuit Judges, and SHARP, * District Judge MORELL E. SHARP, District Judge: 4 Young appeals from concurrent sentences received upon conviction on each of three counts of an indictment: Count I, conspiracy; Count II, importation of a controlled substance; Count III, possession with intent to distribute the controlled substance. Enright appeals from concurrent sentences after convictions were entered on Counts I and III. Special parole terms were consecutive. 5 In these appeals, there are two main issues. The first is whether the seizure of approximately 1,033 pounds of marijuana from a truck after a stop on a highway was made with probable cause. Appellants argue that probable cause could not have existed because there was a break in the surveillance of an…

Young appeals from concurrent sentences received upon conviction on each of three counts of an indictment: Count I, conspiracy; Count II, importation of a controlled substance; Count III, possession with intent to distribute the controlled substance. Enright appeals from concurrent sentences after convictions were entered on Counts I and III. Special parole terms were consecutive.

*486 In these appeals, there are two main issues. The first is whether the seizure of approximately 1,033 pounds of marijuana from a truck after a stop on a highway was made with probable cause. Appellants argue that probable cause could not have existed because there was a break in the surveillance of an airplane suspected of flying the marijuana out of Mexico and into the United States. The second issue is whether the destruction of the seizure by the DEA approximately two months after the seizure without a court order or notice to counsel denied these appellants a fair trial.

We affirm.

The important facts are not in substantial dispute. In the afternoon of August 26, 1974, special agent Kenneth Sul of the Tucson office of the DEA received a tip that some persons operating an aircraft at…

(concurring):

I concur in the result, and I have no significant quarrel with the majority’s reasoning. Nevertheless, I deem it important to mention that I see no relevance in the majority’s discussion of the break in the surveillance of the airplane. We have issued many opinions holding that a significant break in the surveillance of a vehicle after the vehicle has been seen to enter this country prohibits a subsequent search of the vehicle on the theory that the search is an extended “border search”. I am actually at a loss, however, in perceiving wherein the fact that observing officers have lost sight of a vehicle that has crossed the border can possibly be a factor in determining the existence, vel non, of probable cause for a challenged search. I might be able to discern some relevance if, as was not the case here, the break in surveillance had obviously resulted from evasive maneuvering by the operator of the machine at which *489 the attempted continuous observation was directed.