United States v. Raymond Brian Russell

546 F.2d 839 UNITED STATES of America, Plaintiff-Appellee, v. Raymond Brian RUSSELL, Defendant-Appellant. No. 76-2500. United States Court of Appeals, Ninth Circuit. Dec. 15, 1976. Rehearing Denied Jan. 25, 1977. Bob Barber, Jr. (argued), Tucson, Ariz., for defendant-appellant. Daniel G. Knauss, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee. Before WRIGHT and TRASK, Circuit Judges, and PALMIERI, * District Judge. TRASK, Circuit Judge: 1 Following the denial of a motion to suppress evidence, the appellant, Raymond Brian Russell, waived jury trial and submitted his case to the court based upon the testimony and evidence presented at the motion to suppress. He was found guilty of knowingly and intentionally possessing approximately 1,100 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). This appeal followed. 2 On March 9, 1976, at approximately 10:30 p. m., two Customs Patrol Officers were on patrol duties in the vicinity of Bisbee Junction in southern Arizona, about 1 1/2 miles north of the Mexican border. They observed a vehicle turn onto Warren Ranch Road. This was a dirt road leading to nothing except a ranch house.…

Following the denial of a motion to suppress evidence, the appellant, Raymond Brian Russell, waived jury trial and submitted his case to the court based upon the testimony and evidence presented at the motion to suppress. He was found guilty of knowingly and intentionally possessing approximately 1,100 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). This appeal followed.

On March 9,1976, at approximately 10:30 p. m., two Customs Patrol Officers were on patrol duties in the vicinity of Bisbee Junction in southern Arizona, about IV2 miles north of the Mexican border. They observed a vehicle turn onto Warren Ranch Road. This was a dirt road leading to nothing except a ranch house. After it drove about 100 yards down the road, the lights on the vehicle were turned out. The officers drove past the intersection and then turned off their own lights and returned to a point where they could observe the vehicle through night scopes. They observed a pickup with a camper shell and the rear door open. A few minutes later, they heard loud banging noises about the rear of the vehicle and saw four people moving around the rear of the camper.

Soon the door…

specially concurring:

I concur in the result of the majority opinion but feel that further clarification of the issue and a comment on appellant’s arguments is necessary.

*841 Appellant’s main contention was that the drawing of weapons by the officers and the continued detention of appellant with his hands against the camper amounted to an arrest without probable cause, rather than an investigatory stop based on founded suspicion.

In support of his argument, appellant cites United States v. Bamos-Zaragosa, 516 F.2d 141 (9th Cir. 1975), United States v. Strickler, 490 F.2d 378 (9th Cir. 1974); and Taylor v. Arizona, 471 F.2d 848 (9th Cir. 1972), cert. denied 409 U.S. 1130 , 93 S.Ct. 948 , 35 L.Ed.2d 262 (1973). These cases, however, as well as others cited by appellant, are factually distinguishable from the situation here.

The initial consideration must be whether appellant was stopped and detained in a necessary and reasonable manner. If so, then the degree of force shown on the part of the officers did not transform the stop into an arrest. Compare United States v. Richards, 500 F.2d 1025 (9th Cir. 1974), cert. denied 420 U.S. 924 , 95 S.Ct. 1118 , 43 L.Ed.2d 393 (1975).…