423 F2d 1222 Rubio v. United States

423 F.2d 1222

Armando RUBIO, Appellant,
v.
UNITED STATES of America, Appellee.

No. 22928.

United States Court of Appeals, Ninth Circuit.

April 2, 1970.

Howard E. Beckler, Hollywood, Cal., for appellant.

Edwin L. Miller, U.S. Atty., San Diego, Cal., for appellee.

Before CHAMBERS, JERTBERG and KOELSCH, Circuit Judges.

PER CURIAM:

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1

The judgment of conviction is reversed.

2

The reversal is required by Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, as we apply that case in United States v. Scott, 9 Cir., 425 F.2d 55, decided March 6, 1970.

3

The search was an immigration search for aliens some 72 miles from the Mexican border. The presumption of 21 U.S.C. 176a was used, so Scott is fatal to the government.

4

We are of the opinion the search was valid.