United States v. James Francis Gabriel, United States of America v. Howard Kevin Palmer

Gabriel and Palmer appeal from judgments of conviction for conspiracy to transport illegal aliens and transportation of illegal aliens, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324 (a)(2). The aliens were discovered when the Border Patrol stopped appellants’ two rented trucks at the truck scales near the San Clemente checkpoint. Palmer drove the first truck; Gabriel drove the second and had rented both. They seek reversal of their convictions on the grounds that evidence should have been suppressed because the agents did not have a founded suspicion to stop the first truck. They contend that a tip from an anonymous telephonic informant was insufficient to justify the stop of the first truck and that the second stop was the fruit of the first and therefore also illegal. The Government maintains first, that the telephone tip of the anonymous informant was sufficient to give founded suspicion, and second, argues for the first time on appeal that the stops were fixed checkpoint stops, so that founded suspicion was not necessary. We are persuaded by the second argument and therefore affirm both convictions without addressing the question whether founded suspicion…

concurring:

I concur in the result reached by the majority.

I am confident that were the issue before the district judge on proper evidence, he would find that the California Highway Patrol truck scales are part of the San Clemente fixed checkpoint. I am even more confident that we would affirm that determination on appeal. However, the issue was not presented to the district judge. As the majority observes, United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978), recognizes only a narrow exception to the general principle that federal appellate courts do not consider an issue not passed upon in the trial court. Ante at 832.

United States v. Patrin, supra, 575 F.2d at 712 (citations omitted). I do not find that this issue comes within that narrow exception. 1

In holding that the scales are part of the fixed checkpoint stop as a “matter of law,” the majority relies on facts in the record. Ante at 832. A holding relying on facts in the record falls within the Patrin exception only if the record has been fully developed. I am not convinced that the record has been so developed or that there could be no prejudice to Gabriel and Palmer by considering this issue first on appeal.…

625 F.2d 830 UNITED STATES of America, Plaintiff-Appellee, v. James Francis GABRIEL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Howard Kevin PALMER, Defendant-Appellant. Nos. 79-1639, 79-1640. United States Court of Appeals, Ninth Circuit. June 2, 1980. Rehearing Denied Sept. 4, 1980. Richard M. Heimann, Oakland, Cal., Craig E. Weinerman, Federal Defender, San Diego, Cal., for defendants-appellants. Hector E. Salitrero, Asst. U.S. Atty., on the brief, Michael H. Walsh, U.S. Atty., Hector E. Solitero, Asst. U.S. Atty., argued, San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before TUTTLE, * WALLACE, and NELSON, Circuit Judges. NELSON, Circuit Judge: 1 Gabriel and Palmer appeal from judgments of conviction for conspiracy to transport illegal aliens and transportation of illegal aliens, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324 (a)(2). The aliens were discovered when the Border Patrol stopped appellants' two rented trucks at the truck scales near the San Clemente checkpoint. Palmer drove the first truck; Gabriel drove the second and had rented both. They seek…