United States v. Arthur Fred Barela

571 F.2d 1108 UNITED STATES of America, Plaintiff-Appellee, v. Arthur Fred BARELA, Defendant-Appellant. No. 74-1860. United States Court of Appeals, Ninth Circuit. March 9, 1978. John J. Cleary, of Fed. Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant. Barton C. Sheela, III, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. MEMORANDUM ON REHEARING Before MERRILL and TRASK, Circuit Judges, and FERGUSON, * District Judge. On October 24, 1973, during the early morning hours, Arthur Barela was stopped at the Border Patrol checkpoint located at San Clemente, California. He was coming from the south. There was no probable cause and no consent for the search of his car trunk that uncovered about 53 pounds of marijuana. The search was after the date of Almeida-Sanchez v. United States, 413 U.S. 266 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973), decided by the Supreme Court on June 21, 1973, but occurred at an established checkpoint and therefore was thought to be legal because Almeida-Sanchez applied to searches made by roving patrols only. Barela was indicted for violation of…

dissenting:

I respectfully dissent.

In my opinion, this case presents serious questions of procedural irregularity and, more importantly, of fundamental fairness in the administration of justice. The key to this opinion lies in a review of the long and tortuous route which the case has traveled through the appellate process to reach its present posture.

I.

1. On November 7, 1973, the appellant Barela was indicted and charged with possession with intent to distribute a quantity of marijuana which had been found in his vehicle during a search at the San Clemente checkpoint on October 24, 1973. A motion to suppress was denied, and Barela was convicted. He was sentenced by the district court on April 15, 1974, and timely filed an appeal to this court.

2. On September 5,1974, this panel filed an unpublished memorandum opinion reversing the conviction on the ground that the search of Barela’s vehicle was illegal because it had not been based on founded suspicion or probable cause. In so holding, we properly relied on the state of the law at that time in accordance with the United States Supreme Court’s decision in Almeida-Sanchez v. United States, 413 U.S. 266 , 93 S.Ct. 2535 , 37…

MEMORANDUM ON REHEARING

On October 24, 1973, during the early morning hours, Arthur Barela was stopped at the Border Patrol checkpoint located at San Clemente, California. He was coming from the south. There was no probable cause and no consent for the search of his car trunk that uncovered about 53 pounds of marijuana.

The search was after the date of Almeida-Sanchez v. United States, 413 U.S. 266 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973), decided by the Supreme Court on June 21,1973, but occurred at an established checkpoint and therefore was thought to be legal because Aimeida-Sanchez applied to searches made by roving patrols only.

Barela was indicted for violation of 21 U.S.C. § 841 (a)(1) and convicted at a court trial on March 8, 1974. He filed a timely appeal and on September 5, 1974, this court reversed his conviction.

Following the reversal, the government petitioned for rehearing. Initially, this was denied, but due to pending Supreme Court decisions, the government was granted extensions of time in which to file further petitions for rehearing. Such a petition for rehearing was granted on August 9, 1977.

In the meantime, the Supreme Court had decided United States…