United States v. Michael Sherwood Newman and Andrew Forga Coldwell, 490 F.2d 993, 10th Cir. (1974)
United States v. Michael Sherwood Newman and Andrew Forga Coldwell, 490 F.2d 993, 10th Cir. (1974)
2d 993
John B. Jarboe, of Jarboe & Keefer, Tulsa, Okl., for appellant Newman.
Leslie L. Conner and James M. Little, Oklahoma City, Okl. (Leslie L.
Conner, Jr., Oklahoma City, Okl., and Irvine E. Ungerman, Tulsa, Okl.,
with them on the brief), for appellant coldwell.
Ben F. Baker, Asst. U.S. Atty. (Nathan G. Graham, U.S. Atty., N.D. Okl.,
with him on the brief), for appellee.
Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS,
Circuit judges.
LEWIS, Chief Judge.
toll, Agent Jackson looked through a small window in the camper and espied a
large container covered with clothes.
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Jackson asked that the vehicle be pulled over to the side of the road and
subsequently joined the appellants at a spot 40 or 50 yards from the turnpike
gate. He asked Newman and Coldwell where they were from and they
informed him that they were from Texas. They were questioned as to the
ownership of the truck and Newman responded that it belonged to his brother.
Coldwell was asked what was within the container in the back and he answered
that it held mirrors. Jackson indicated that he wanted to look into the container
because it was large enough to contain an alien. Coldwell advised him that a
crowbar would be needed to open it and went to the front of the truck to get a
lug wrench. He then returned to the rear of the camper shell and opened it.
Agent Jackson entered the camper and observed a large deepfreeze, a large
wooden box, and an antique trunk. Jackson also testified that he smelled the
odor of marijuana when the rear of the camper was opened. 1
Coldwell was unable to open the wooden container with the lug wrench. When
Jackson informed him that he wanted to look inside the trunk also, Coldwell
told him that he would have to get the key. He then returned to the cab of the
truck, ostensibly to get the key, and departed abruptly with Newman. As they
left, the deepfreeze and the trunk slid from the camper onto the highway
pavement.
Jackson pursued in his patrol car and came upon the abandoned truck about a
quarter of a mile up the road, but he was unable to find either of the appellants.
After assistance arrived Jackson drove the truck, which still contained the
wooden box, back to the turnpike gate. He subsequently opened all three
containers, which were found to hold a total of approximately 741 pounds of
marijuana. Newman and Coldwell were later apprehended and charged with the
crime of which they now stand convicted. They have challenged these
convictions on several grounds, but in the view which we take of this case we
deem it unnecessary to consider each contention raised. We hold that the
marijuana which provided the basis for these convictions was illegally seized
pursuant to an illegal warrantless search conducted without probable cause. Its
use as evidence was therefore improper and demands reversal.
The fact that the turnpike gate is located over 700 miles from the Mexican
border clearly precludes consideration of this case as one involving a border
search. Thus no peculiarly broad powers attach to the border patrol agent and
the government's case here must rise or fall on the existence of probable cause.
Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d
596.
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When Agent Jackson proceeded to the rear of the camper to investigate its
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When Agent Jackson proceeded to the rear of the camper to investigate its
contents he initiated an illegal warrantless search. The conclusion is
inescapable that the invalidity of this action tainted all subsequent events
leading to the ultimate seizure of the marijuana. Everything was triggered by
the original illegal intrusion and the contraband evidence was thus inadmissible
as the 'fruit of the poisoned tree.' Wong Sun v. United States, 371 U.S. 471, 83
S.Ct. 407, 9 L.Ed.2d 441. Under these circumstances the government's theory
of abandonment is without merit. See Fletcher v. Wainwright, 5 Cir., 399 F.2d
62.
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Reversed.