528 F2d 925 United States v. Gonzalez--Diaz

528 F.2d 925

UNITED STATES of America, Plaintiff-Appellee,
Alberto GONZALEZ--DIAZ, Defendant-Appellant.

No. 74--2484.

United States Court of Appeals,
Ninth Circuit.

Jan. 26, 1976.
Certiorari Denied May 19, 1976.
See 96 S.Ct. 2180.

Frank J. Ragen (argued) of Federal Defenders, Inc., San Diego, Cal., for defendant-appellant.

Herbert B. Hoffman, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.


Before KOELSCH and WALLACE, Circuit Judges, and JAMESON,* District Judge.


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On January 27, 1975, we affirmed in a memorandum the conviction of Gonzalez-Diaz for possession with intent to distribute 449 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). On June 30, 1975, the Supreme Court vacated our judgment and remanded it for further consideration in light of United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Gonzalez-Diaz v. United States, 422 U.S. 1053, 95 S.Ct. 2675, 45 L.Ed.2d 706 (1975).


In order to justify a temporary investigatory stop the Court requires a 'reasonable suspicion,' a standard which is not dissimilar to the 'founded suspicion' test applied by the district court in this case. Indeed, we have held 'that there is no substantial difference between the doctrine of 'founded suspicion' used by this court, and the 'reasonable suspicion' test announced in Brignoni-Ponce.' United States v. Rocha-Lopez, 527 F.2d 476, 477 (9th Cir. 1975).


Having affirmed the district court in its finding of founded suspicion, we see no reason to change the holding in our earlier memorandum which stated as follows:


The record in this appeal does reveal facts and circumstances sufficient to warrant the investigatory stop which led to the discovery of appellant's possession of the marijuana upon which his conviction was secured.


Judge Koelsch, being of the opinion that the record does not support a conclusion of 'a founded suspicion' essential to such a stop, dissents.


The judgment is affirmed.



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Honorable William J. Jameson, United States District Judge, District of Montana, sitting by designation