Opinion · Court of Appeals for the Ninth Circuit

United States v. Elmer Thomas Mitchell

United States v. Elmer Thomas Mitchell, 472 F.2d 67 (9th Cir. 1973)

Type: Opinion
Court: Court of Appeals for the Ninth Circuit
Jurisdiction: Federal
Date: 1973-01-09
Topic: general

KILKENNY, Circuit Judge (dissenting) : In these circumstances, I would not substitute our judgment for that of the officers who were highly skilled in the detection of smugglers along the Mexican Border. The officers knew that the border area in which appellant was finally stopped and the contraband discovered, was a region noted for smuggling and illegal border crossings by Mexican aliens. Moreover, from past experience, the officers knew that the last car through the checkpoint prior to midnight was one which was likely to be engaged in such activity. This was true, not by reason of a belief that an alien might then be concealed in the vehicle, but because of a reasonable belief grounded *69on experience, that the alien would cross the border at some other point as a pedestrian, or by vehicle, and later meet his co-conspirator in an isolated area close to the border. The appellant did not have a companion when he crossed the border.

Citator

UpLaw has not yet analyzed United States v. Elmer Thomas Mitchell. The absence of a flag is not a finding that it is good law.

KILKENNY, Circuit Judge

(dissenting) :

In these circumstances, I would not substitute our judgment for that of the officers who were highly skilled in the detection of smugglers along the Mexican Border. The officers knew that the border area in which appellant was finally stopped and the contraband discovered, was a region noted for smuggling and illegal border crossings by Mexican aliens. Moreover, from past experience, the officers knew that the last car through the checkpoint prior to midnight was one which was likely to be engaged in such activity. This was true, not by reason of a belief that an alien might then be concealed in the vehicle, but because of a reasonable belief grounded *69 on experience, that the alien would cross the border at some other point as a pedestrian, or by vehicle, and later meet his co-conspirator in an isolated area close to the border. The appellant did not have a companion when he crossed the border. At the time of the final stop he had a companion who was wearing dirty boots with fresh brush on his pants. In fact, the rear seat was then covered with a sheet and a strange looking piece of plastic was protruding from under the seat. These items had not been there at the time of the previous inspections. When viewed in the light most favorable to the government, these facts with others shown by the record would constitute such “a series of suspicious circumstances which when tifken together [would] provide probable cause” for the search here in question. United States v. Korb, 464 F.2d 456, 457 (CA9 1972), is closely in point. We need not again discuss the authority of Immigration agents to make this type of search. See United States v. AlmeidaSanchez, 452 F.2d 459, 460, 461 (CA9 1971), cert. granted 406 U.S. 944, 92 S.Ct. 2050, 32 L.Ed.2d 331 (1972).

I would affirm.