United States v. James Neil Diamond, 471 F.2d 771 (9th Cir. 1973). · Go Syfert
United States v. James Neil Diamond, 471 F.2d 771 (9th Cir. 1973). Cases Citing This Book View Copy Cite
“customs agents are not general guard- ians of the public peace, as are state or local police. their powers . . . to search and arrest persons are limited by stat- ute.”
23 citation events (5 in the last 25 years) across 12 distinct courts.
Strongest positive: United Statesa v. Lewis (cacd, 2018-01-22)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (quoted) United Statesa v. Lewis
C.D. Cal. · 2018 · signal: see also · quote attribution · 1 verbatim quote · confidence bake:cell
customs agents are not general guardians of the public peace, as are state or local police. their powers ... to search and arrest persons are limited by statute.
discussed Cited as authority (quoted) United States v. Juvenile Female
9th Cir. · 2009 · signal: cf. · quote attribution · 1 verbatim quote · confidence bake:cell
customs agents are not general guard- ians of the public peace, as are state or local police. their powers . . . to search and arrest persons are limited by stat- ute.
cited Cited as authority (rule) State v. Phillip Walker-Brazie & Brandi-Lena Butterfield
Vt. · 2021 · confidence medium
Their powers to search places and to search and arrest persons are limited by statute.” United States v. Diamond, 471 F.2d 771, 773 (9th Cir. 1973).
discussed Cited as authority (rule) United States v. Juvenile Female
9th Cir. · 2009 · signal: cf. · confidence medium
Instead, ... their authority and duties are circumscribed by statute and limited in scope.”); see also United States v. Santa Maria, 15 F.3d 879 (9th Cir. 1994); cf. United States v. Diamond, 471 F.2d 771, 773 (9th Cir.1973) (“[Customs agents are not general guardians of the public peace, as are state or local police.
discussed Cited as authority (rule) United States v. Alfonso Gutierrez
9th Cir. · 1993 · confidence medium
United States v. Diamond, 471 F.2d 771, 773 (9th Cir.), cert. denied, 412 U.S. 932 (1973); see also United States v. Sanchez-Robles, 927 F.2d 1070, 1076 (9th Cir.1991) (not a miscarriage of justice for the jury to conclude that defendant had knowing possession where the van she was driving contained a large quantity of marijuana giving off a strong odor).
discussed Cited as authority (rule) United States v. Maria Leticia Garcia-Garcia
9th Cir. · 1991 · signal: cf. · confidence medium
Cf. United States v. Diamond, 471 F.2d 771, 773 (1973) (evidence that defendant failed to stop when ordered to do so supports finding of possession), cert. denied, 412 U.S. 932 (1973). 14 The odor of marijuana inside Garcia's car could not support an inference of knowing possession because it was not shown that Garcia would recognize the smell of marijuana and she did not have any prior convictions.
cited Cited as authority (rule) Terrell v. Petrie
E.D. Va. · 1991 · signal: cf. · confidence medium
Cf. United States v. Diamond, 471 F.2d 771, 773 (9th Cir.), cert. denied, 412 U.S. 932 , 93 S.Ct. 2751 , 37 L.Ed.2d 161 (1973).
discussed Cited as authority (rule) United States v. Russell Damsky, Peter B. Findlen, Gary Romano
2d Cir. · 1984 · confidence medium
See, e.g., United States v. Ard, 731 F.2d 718, 725 (11th Cir.1984); United States v. Flynn, 664 F.2d 1296, 1307 (5th Cir.), cert. denied, 456 U.S. 930 , 102 S.Ct. 1979 , 72 L.Ed.2d 446 (1982); United States v. Diamond, 471 F.2d 771, 773 (9th Cir.), cert. denied, 412 U.S. 932 , 93 S.Ct. 2751 , 37 L.Ed.2d 161 (1973).
discussed Cited as authority (rule) United States v. Randall G. Prim (2×)
9th Cir. · 1983 · confidence medium
Their, powers to search places and to search and arrest persons are limited by statute.” United States v. Diamond, 471 F.2d 771, 773 (9th Cir.), cert. denied, 412 U.S. 932 , 93 S.Ct. 2751 , 37 L.Ed.2d 161 (1973); see also United States v. Watson,. 423 U.S. 411, 415-16 , 96 S.Ct. 820, 823 , 46 L.Ed.2d 598 (1976) (postal inspectors); United States v. Harrington, 681 F.2d 612, 613 (9th Cir.1982) (Customs Service); United States v. Soto-Soto, 598 F.2d 545, 549 (9th Cir.1979) (FBI agents); United States v. Thompson, 475 F.2d 1359, 1362-63 (5th Cir.1973) (border patrol).
cited Cited "see" United States v. Miguel Cano
9th Cir. · 2019 · signal: see · confidence high
Id.; see United States v. Diamond, 471 F.2d 771, 773 (9th Cir. 1973) (stating that “customs agents are not general guardians of the public peace”).
cited Cited "see" United States v. Michael Robert Diezel, William E. Fuller and Geraldo Ruiz
5th Cir. · 1979 · signal: see · confidence high
See United States v. Diamond, 471 F.2d 771 (9th Cir. 1973), cert. denied, 412 U.S. 932 , 93 S.Ct. 2751 , 37 L.Ed.2d 161 (1973).
cited Cited "see" United States v. Manuel Carrasco Rivera
5th Cir. · 1979 · signal: see · confidence high
See United States v. Diamond, 471 F.2d 771, 773 (9th Cir.), cert. denied, 412 U.S. 932 , 93 S.Ct. 2751 , 37 L.Ed.2d 161 (1973).
discussed Cited "see" United States v. Erasmo Olivarez Flores
5th Cir. · 1977 · signal: see · confidence high
See United States v. Diamond, 471 F.2d 771 (9th Cir.), cert. denied, 412 U.S. 932 , 93 S.Ct. 2751 , 37 L.Ed.2d 161 (1973) (defendant under surveillance crosses and recrosses border into Mexico; as driver in control of vehicle he refuses to pull over on police request; strong smell of marijuana); United States v. Christophe, 470 F.2d 865 (2d Cir. 1972) (defendant observed placing valise containing heroin into trunk of car; refuses to halt in response to sirens; makes false exculpatory statements to FBI agents); United States v. Rich, 262 F.2d 415 (2d Cir. 1959) (defendant observed picking up na…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
James Neil DIAMOND, Defendant-Appellant
72-2085.
Court of Appeals for the Ninth Circuit.
Jan 16, 1973.
471 F.2d 771
Keith C. Monroe (argued), Santa Ana, Cal., for defendant-appellant., James W. Meyers, Asst. U. S. Atty. (argued), Stephen G. Nelson, Douglas G. Hendricks, Asst. U. S. Attys., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Hamley, Wright, Powell.
Cited by 23 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 89%
Citer courts: Ninth Circuit (1) · C.D. California (1)
WRIGHT, Circuit Judge:

Diamond appeals from his conviction for possession with intent to distribute 693 pounds of marijuana in violation of Title 21 U.S.C. § 841(a)(1) (1970). His principal contention on this appeal is that the district court erred in denying his motion to suppress evidence, marijuana found in the trunk of his car. He also contends that the evidence is not sufficient to show that he knowingly possessed the marijuana. We affirm.

The district court held a hearing on appellant’s motion to suppress. Evidence introduced there showed that at 11:00 a. m. on September 14, 1971 Agent Goff of the United States Customs Service observed a 1964 Pontiac parked in a residential section of Calexico, California, six blocks from the Mexican border. Suspicious because he did not recognize the vehicle as belonging to anyone who lived in that neighborhood, Goff placed the vehicle under surveillance.

At 4:00 p. m. on that day appellant was seen entering the vehicle and he appeared to be working under the dashboard. He then left the car, locked it, and headed on foot in the direction of the border. He stopped for a few minutes at a service station and then continued on foot across the border. Agent Pettingill inquired of the attendant at the service station and learned that appellant had produced an automobile ignition switch and asked to have made a key to fit it.

About 5:10 p. m. Agent Goff learned that appellant had returned from Mexico. Diamond had apparently been stopped and searched at the border and was in possession of an automobile key and an ignition switch.

At 5:20 p. m., within view of Agents Goff and Pettingill, appellant approached the Pontiac, unlocked and entered it, and was seen working under the dashboard. He started the vehicle and drove west and north through Calexico and north on Highway 111 to Interstate 8. He entered Interstate 8 heading west, being followed by Agents Goff, Pettingill and Fernandez, each in separate unmarked cars.

When appellant passed the exit to El Centro, Agent Goff decided to stop him, drove alongside, sounded a siren and displayed a red light. Appellant looked back but continued for about a mile without stopping or slowing down. He then looked back a second time, nodded, and drove to the side of the highway. Agent Goff’s siren and light had been in continuous operation.

Agents Goff and Pettingill testified that each detected a strong odor of marijuana when he approached the Pontiac. Agent Goff opened the trunk of the Pontiac and found the marijuana inside.

The Government does not rely on the theory of a “border search” to justify what occurred. Instead it characterizes the stop on the highway as a “routine investigation,” not requiring a showing of probable cause. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d[*773] 612 (1972); Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966).

Thus, it argues, the initial stop was valid and the heavy odor of marijuana which became apparent after the stop gave the agents probable cause to conduct a thorough search of the vehicle. See United States v. Blackstock, 451 F.2d 908 (9th Cir. 1971); Fernandez v. United States, 321 F.2d 283 (9th Cir. 1963). Appellant contends that because there were no “articulable facts” present upon which the agents could have a “founded suspicion” that he was engaged in the drug traffic the investigatory stop was unlawful. Cf. United States v. Davis, 459 F.2d 458 (9th Cir. 1972).

We note at' the outset that the the stop here was not made by ordinary police officers but by agents of the United States Customs Service. As we noted in United States v. Jackson, 423 F.2d 506 (9th Cir. 1970), cert. denied 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 57 (1970), customs agents are not general guardians of the public peace, as are state or local police. Their powers to search places and to search and arrest persons are limited by statute. See Title 19 U.S.C. § 482 (1970). Our consideration is limited, then, to whether the circumstances gave these agents a founded suspicion that a violation of the customs laws or laws relating to narcotic drugs was occurring.

We agree with the district court’s finding, implicit in its denial of the motion to suppress, that some basis for a founded suspicion existed. The facts known to the customs agents at the time of the stop strongly suggested that appellant had taken possession of a vehicle for which he had not had keys. From this they could logically infer that he was not the person who had parked the vehide.

Considering the additional facts that the vehicle was parked very near-the border and that Agent Goff, well acquainted with the neighborhood, could not identify it as belonging to anyone living there, appellant’s activity was suspicious enough to justify a stop by the customs agents to question him about his activities.

Furthermore, Agent Goff testified that he had not intended to search the car before he detected the strong odor of marijuana coming from within it. The district judge believed this testimony and we have no reason to disagree. United States v. Portillo, 469 F.2d 907 (9th Cir., 1972) is not in point.

We find that the agents had a reasonable basis for stopping the Pontiac to question appellant. We also find that, the appellant’s conduct after seeing and hearing Agent Goff’s efforts to stop him and the strong odor of marijuana gave the agents probable cause to search the automobile trunk. United States v. Blackstock, supra; Fernandez v. United States, supra.

Appellant’s final point is that the evidence of knowledge on his part that the marijuana was present was not sufficient to sustain the conviction. We disagree. The evidence showed that appellant was the driver in control of a vehicle, containing a large quantity of marijuana and that he failed to stop when first ordered to do so. Moreover, the heavy odor of marijuana detected by Agents Goff and Pettingill suggests strongly that appellant was not unaware of its presence. Compare United States v. Leazar, 460 F.2d 982 (9th Cir. 1972).

The judgment of conviction is affirmed.