431 F2d 693 Davis v. United States

431 F.2d 693

Robert E. DAVIS, Appellant,
v.
UNITED STATES of America, Appellee.

No. 25546.

United States Court of Appeals, Fifth Circuit.

July 6, 1970.

Rehearing Denied August 14, 1970.

Byron F. Egan, Dallas, Tex., for appellant.

Jamie C. Boyd, James W. Kerr, Jr., Asst. U. S. Attys., El Paso, Tex., for appellee.

Before TUTTLE, THORNBERRY and INGRAHAM, Circuit Judges.

PER CURIAM:

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1

The principal issue raised on this appeal from conviction and sentence of a narcotics conviction is that the trial court erred in not suppressing the quantity of heroin found in a brown paper bag which had been in appellant's possession when he was removed from a passenger airplane at the El Paso, Texas airport some five miles from the border. The trial court denied the motion to suppress on the ground that this was a proper "border search" as described in 19 U.S.C.A. § 482.

2

Although the appellant was not under constant surveillance after he departed the entry point at the border, there was ample basis for the search that was made of him at the airport under the standards stated by this court in Walker v. United States, (5th Cir.) 404 F.2d 900.

3

As to the contention by the appellant that error was committed by the admission of his testimony of a prior criminal record in the hearing before the trial court out of the presence of the jury in opposition to the appellant's motion to suppress, we conclude that this evidence was relevant to the establishment of the necessary reasonableness of the suspicion held by the officers in making the § 482 border search. Moreover, even if error was made, it was not substantial in that none of the evidence was heard by the jury.

4

The judgment of the trial court is affirmed.

ON PETITION FOR REHEARING

PER CURIAM:

5

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.

6

The point raised by the supplementary petition for rehearing, alleging that appellant was under the influence of drugs at the time of trial, not appearing of record, and not having been urged on appeal, can be raised only, if at all, by a motion under 28 U.S.C.A. § 2255.