United States v. Richard Alan Basile, United States of America v. Neal Spencer Holden

dissenting:

The majority opinion cannot be reconciled with Wattenburg v. United States (9th Cir. 1968) 388 F.2d 853 , on the search and seizure issue, with Michigan v. Mosley (1975) 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 on the Miranda issue, nor with the teaching of Bruton v. United States (1968) 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 , on the severance issue.

I

The district court denied appellants’ motions to suppress the marihuana on the ground that the blue panel truck was “abandoned outside the corral area adjacent to a house” and that neither appellant had any expectation of privacy in the truck. As the majority implicitly recognizes, the abandonment theory cannot be sustained on the record. The majority tries to sustain the search by applying the so-called “open field” doctrine. As we said in United States v. Freie (9th Cir. 1976) 545 F.2d 1217 , 1223: Since Katz v. United States (1967) 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 , “Hester [Hester v. United States (1924) 265 U.S. 57 , 44 S.Ct. 445 , 68 L.Ed. 898 (the source of the open field doctrine)] no longer has any independent meaning but merely indicates that open fields are not areas in which one…

Basile and Holden appeal from their convictions for possessing marijuana with intent to distribute it in violation of 21 U.S.C. § 841 (a)(1). We affirm.

Ferguson and Cottle, customs patrol officers, were patrolling a rural area near the Mexican border at 3:30 a. m. on October 17, 1976. The officers observed footprints of eight or nine people on a road approximate *1055 ly three-quarters of a mile north of the Mexican border. The prints, which were about three hours old, headed north. The shoes were of a kind worn by residents of Mexico. The footprints were followed by the officers up a wash and they soon discovered that similar footprints also went down the wash, indicating that the group had made a round trip from the border into Arizona and back again. Ferguson testified that he had “seen this type of operation many times before where people came across the border and leave stashes of marijuana and return to Mexico.” The footprints led the officers on a northern course then west to a firebreak road running parallel to a railroad track, where the officers continued to follow the tracks for approximately a quarter of a mile. The tracks then proceeded under an old railroad…

concurring:

If the district court had found that there was a reasonable expectation of privacy for the truck against prying eyes, I would vote to uphold. But I believe the determination by the Court to the contrary was not clearly erroneous.

Thus, I concur in Judge WONG’s affirmance.

569 F.2d 1053 UNITED STATES of America, Plaintiff-Appellee, v. Richard Alan BASILE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Neal Spencer HOLDEN, Defendant-Appellant. Nos. 77-1700, 77-1701. United States Court of Appeals, Ninth Circuit. Jan. 6, 1978. Rehearing and Rehearing En Banc Denied Feb. 17, 1978. 1 Clarence Meyers (argued), Tucson, Ariz., Robert J. Hooker (argued), Tucson, Ariz., for defendant-appellant. 2 Dale A. Danneman, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee. 3 Appeal from the United States District Court for the District of Arizona. 4 Before CHAMBERS and HUFSTEDLER, Circuit Judges, and WONG, * District Judge. WONG, District Judge: 5 Basile and Holden appeal from their convictions for possessing marijuana with intent to distribute it in violation of 21 U.S.C. § 841 (a)(1). We affirm. 6 Ferguson and Cottle, customs patrol officers, were patrolling a rural area near the Mexican border at 3:30 a. m. on October 17, 1976. The officers observed footprints of eight or nine people on a road approximately three-quarters of a mile north of the Mexican border. The prints, which were about three hours old, headed north.…