United States v. Paul Richard Portillo, United States of America v. Daniel C. Montellano

Paul Richard Portillo and Daniel Chavez Montellano appeal from the judgment of conviction following a trial by jury in which they were found guilty of armed bank robbery in violation of 18 U.S.C. Section 2113 (a) (1970).

Appellants have raised many issues on appeal. Two require detailed analysis. The remainder are either without merit or have already been resolved by existing case law.

For the reasons set forth below, we conclude that the warrantless search of the paper bag found in the trunk of the car was justified as an incident to a vehicle inspection and because of the exigent circumstances confronting the officer. We also hold that appellants whose appeals were pending at the time that United States v. Cook, 608 F.2d 1175 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034 , 100 S.Ct. 706 , 62 L.Ed.2d 670 (1980), was decided may challenge the ruling of the district court as to the admissibility of their prior convictions in spite of the fact they neither took the stand nor made an offer of proof as to the nature of the testimony they would have offered.

VALIDITY OF THE PAPER BAG SEARCH

Appellants contend that the trial court erred in denying their motions to suppress…

(specially concurring):

I concur in the results reached by Judge Alarcon.

The existence of the equivalent of exigent circumstances justifies the opening of the trunk. The recovery of the weapons identified without opening the sacks raises no Fourth Amendment issue.

Our decision in United States v. Cook, 608 F.2d 1175 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034 , 100 S.Ct. 706 , 62 L.Ed.2d 670 (1980), provides no basis for collateral attack on convictions that became final prior to its date of filing. The purpose of Cook was to permit the issue of the use of prior convictions to impeach to be raised on appeal even though the defendant did not take the stand. No constitutional issue was involved.

633 F.2d 1313 7 Fed. R. Evid. Serv. 421 UNITED STATES of America, Plaintiff-Appellee, v. Paul Richard PORTILLO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Daniel C. MONTELLANO, Defendant-Appellant. Nos. 79-1407, 79-1481. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 4, 1980. Decided Dec. 12, 1980. Stephen J. Hillman, Joseph Shemaria, Los Angeles, Cal., for defendant-appellant. James P. Walsh, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before SNEED, SCHROEDER and ALARCON, Circuit Judges. ALARCON, Circuit Judge: 1 Paul Richard Portillo and Daniel Chavez Montellano appeal from the judgment of conviction following a trial by jury in which they were found guilty of armed bank robbery in violation of 18 U.S.C. Section 2113 (a) (1970). 2 Appellants have raised many issues on appeal. Two require detailed analysis. The remainder are either without merit or have already been resolved by existing case law. 3 For the reasons set forth below, we conclude that the warrantless search of the paper bag found in the trunk of the car was…