United States v. Aguero-Miranda , 199 F.3d 753 ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50999
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO IBARRA-SANCHEZ,
Defendant-Appellant.
No. 98-51044
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL AGUERO-MIRANDA; RICARDO VASQUEZ,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
December 29, 1999
Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellants Miguel Angel Aguero-Miranda (Aguero-
Miranda), Ricardo Vasquez (Vasquez), and Antonio Ibarra-Sanchez
(Ibarra-Sanchez) were indicted for conspiracy to possess marihuana
with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1)
and 846. The appellants moved to suppress approximately 344 pounds
of marihuana seized on January 6, 1998 from the van in which they
were riding, as well as inculpatory statements that they made to
law enforcement officials after their arrest. Following an
evidentiary hearing, the district court denied the motion. The
appellants thereafter were convicted on their pleas of guilty and
were subsequently sentenced. The guilty pleas each reserved the
right to appeal the denial of the motion to suppress. FED. R. CRIM.
PROC. 11 (a)(2). The appellants now appeal, challenging only the
denial of the motion. We affirm.
Facts and Proceedings Below
Between August, 1997, and January, 1998, special agents of the Drug
Enforcement Agency (DEA), led by Special Agent Steve Mattas (Mattas),
conducted intermittent surveillance of a residence located at 1393
Copper Ridge in El Paso, Texas. This residence was the home of
appellant Aguero-Miranda, his wife, Jacqueline Aguero, and her children.
Based on their observations over this five-month period, Mattas and the
other agents suspected that the Copper Ridge residence housed an on-
going illicit drug operation.
From their surveillance of the trash at the Copper Ridge residence,
Mattas and the DEA agents discovered phone records revealing that
multiple calls had been made to phone numbers associated with other DEA
investigations. Their searches also revealed several five-pound zip-
lock baggies covered with duct tape, a practice which in Mattas’s
experience was consistent with the transportation of drugs and currency.
A police dog trained to detect the presence of currency positively
2
identified the baggies as having contained currency. Other suspicious
trash findings included plane tickets to Hawaii and Mexico, bills that
were all in Mrs. Aguero’s name, and bank statements indicating large
monthly deposits, even though the residents at Copper Ridge had no
discernable employment.
The trash searches also revealed utility bills and mortgage
statements for a residence on Rainbow Ridge, located directly behind the
Copper Ridge home. His attention drawn to the Rainbow Ridge residence,
Mattas noted that it was unkempt and run-down, which was unusual for
that affluent part of El Paso. No one appeared to be living there on
any consistent basis, and the agents observed heavy foot and vehicle
traffic between the two residences. From these observations, Mattas
surmised that the Rainbow Ridge residence was in all likelihood a “stash
house,” that is, an unoccupied house used for the storage of drugs.
In the course of his surveillance of the Copper Ridge and Rainbow
Ridge residences, Mattas observed approximately six vehicles, including
the beige van at issue in this appeal, coming and going from the houses
at various times. Some of the vehicles had temporary license tags, some
had tags that were associated with other DEA investigations, and some
would remain parked in front of the houses, virtually abandoned, for
weeks at a time. At the suppression hearing, Mattas testified that this
large number of vehicles was unusual even for an affluent area–and
especially unusual when the residents did not appear to work. Mattas
concluded that this activity was consistent with drug trafficking. He
also identified one of the most frequent visitors to the Copper Ridge
house as Gilberto Villanueava (Villanueava), whom the agents later (and
3
before January, 1998) determined was wanted for questioning in
connection with the abduction of a DEA agent in Mexico in 1995, as well
as another DEA investigation. According to Mattas, Villanueava often
shuttled back and forth between the Copper Ridge and Rainbow Ridge
residences, and unlike most of the other visitors, was actually allowed
inside the Copper Ridge residence.
On the evening of January 6, 1998, the beige van made its first
appearance in over a month. As the van pulled into the driveway of the
Rainbow Ridge residence, Mattas observed the motion-sensitive light
above the driveway go on and at least two individuals exit the van and
enter the residence. A minute or two later, the van left the Rainbow
Ridge residence; after approximately thirty minutes, it returned.
Mattas then saw three men loading several large objects, which appeared
to be duffel bags, into the van. He testified that sometime during the
course of these events the motion-sensitive light had been deactivated,
and that the loading of the van took place in the dark. Mattas found
it suspicious that these individuals would load the van in the dark
“when the average person would have wanted to have light out there so
they could see what they were doing.”
Mattas followed the van as it departed from Rainbow Ridge.
Believing that the van was loaded with drugs, and that he would need
assistance in stopping it, Mattas contacted by mobile phone another DEA
agent and the El Paso Police Department (EPPD).1 He instructed the EPPD
1
At the suppression hearing, Mattas testified that he did not
attempt to stop the van himself because his vehicle was not equipped
with emergency lights or a siren, and because he did not want to reveal
the existence of the DEA investigation to Aguero-Miranda or any of the
van’s other occupants.
4
dispatcher to relay a message to EPPD officers that a DEA agent needed
assistance in stopping the van. Mattas also requested the dispatcher
to tell the officers to form their own reasonable suspicion before
stopping the van. The dispatcher failed to communicate this last
instruction, however, and instead merely issued a radio bulletin that
a DEA agent had requested assistance in stopping the beige van because
it was possibly transporting drugs or weapons.
After hearing the bulletin, EPPD Patrolman Jose Guerra (Guerra)
observed the van heading east on Interstate 10. Guerra activated his
emergency lights and began his pursuit. While being followed on the
freeway by Guerra, the van passed an EPPD Special Weapons and Tactics
(SWAT) team on its way home from a training session at the police
academy. Aware of the dispatcher’s message, the SWAT team joined in the
chase and aided Guerra in making a “felony stop” of the van at an exit
off the highway.2 The SWAT team, Guerra, and Guerra’s partner all
approached the stopped van with pistols and shotguns drawn. As they
drew near, but before they looked inside it, the officers could smell
a strong odor of marihuana emanating from within the van.3 The officers
ordered the three occupants–driver appellant Ibarra-Sanchez, front seat
passenger appellant Aguero-Miranda, and back seat passenger appellant
Vasquez–to exit the van and kneel down on the ground. Guerra handcuffed
the men and with the help of other officers placed them in the back
2
While not entirely clear, it appears that a “felony stop” is a
detention procedure that involves ordering occupants of a vehicle to
exit when police officers believe their safety is at risk.
3
One member of the SWAT team, Lawrence Lujan, testified at the
suppression hearing that he could smell the marihuana two or three feet
away from the van.
5
seats of three separate patrol cars. The officers then conducted a
“protective sweep” of the van for other occupants or weapons, and
discovered three duffel bags, as well as some smaller bags, which were
later determined to contain approximately 344 pounds of marihuana.
At some point during this time period, Mattas arrived and
identified himself as the agent who had requested the stop. The
officers informed Mattas that they had conducted the protective sweep
of the van and had discovered a large amount of marihuana. Mattas later
testified that he could smell the marihuana when he was five or ten feet
away from the van. After conferring with the EPPD officers, Mattas
seized the marihuana. The appellants were then formally arrested and
taken to EPPD headquarters, where Aguero-Miranda and Vasquez made
inculpatory statements to EPPD officers. Ibarra-Sanchez made no post-
arrest statements.
The appellants were charged in a one-count indictment with
conspiracy to possess marihuana with intent to distribute in violation
of 21 U.S.C. §§ 841(a)(1) and 846. Arguing that the initial “felony
stop” constituted an arrest and search for which there was no probable
cause, the appellants filed a motion to suppress the marihuana and
statements. The district court conducted a suppression hearing on June
12, 1998, and denied the motion on July 7, 1998 in a memorandum order.
The appellants then pleaded guilty to the indictment, reserving the
right to appeal the denial of the motion. On October 16, 1998, the
district court sentenced Aguero-Miranda to sixty months of imprisonment,
followed by a four year period of supervised release; Vasquez to thirty-
seven months of imprisonment and three years of supervised release; and
6
Ibarra-Sanchez to thirty months of imprisonment and three years of
supervised release. The appellants now appeal, complaining only of the
denial of their suppression motion.4
Discussion
The district court found that in conducting the “felony stop,” the
EPPD officers “effected a warrantless arrest of the van’s occupants and
then proceeded to search it,” all without probable cause. The court
denied the motion, however, on the basis of the “good faith” exception
to the exclusionary rule of the Fourth Amendment. See United States v.
Leon, 104 S. Ct. 3405 (1984); United States v. DeLeon-Reyna, 930 F.2d
396, 400 (5th Cir. 1991) (en banc; per curiam). According to the
district court’s interpretation of the events at issue, the EPPD
officers reasonably relied on the dispatcher’s erroneous relay of
Mattas’s request, and thus executed the “felony stop” of the van in the
“good faith,” though erroneous, belief that they were authorized to do
so. We do not address the district court’s reliance on the “good faith”
exception to justify the officers’ conduct. Instead, we affirm the
denial of the motion to suppress because the officers had reasonable
suspicion to stop the van, and did not search it until they had probable
cause to do so as a result of having smelled the marihuana; in addition,
any alleged illegality associated with the “warrantless arrest” was too
attenuated from the drugs or statements to require suppression. The
evidence on these issues is undisputed.
When reviewing a district court’s ruling on a motion to suppress
4
The separate appeal of Ibarra-Sanchez (No. 98-50999) has been
consolidated with that of Aguero-Miranda and Vasquez (No. 98-51044).
7
based on live testimony at a suppression hearing, we will accept the
court’s factual findings “unless the findings are clearly erroneous or
influenced by an incorrect view of the law.” United States v. Lanford,
838 F.2d 1351, 1354 (5th Cir. 1988). We review questions of law de
novo. “To the extent the underlying facts are undisputed . . . we may
resolve questions such as probable cause and reasonable suspicion as
questions of law.” Blackwell v. Barton, 34 F.3d 298, 305 (5th Cir.
1994). Finally, we may affirm the district court’s decision on any
basis established by the record. See United States v. McSween, 53 F.3d
684, 687 n.3 (5th Cir. 1995).
I. Reasonable Suspicion to Stop the Van
The appellants contend that the EPPD officers lacked reasonable
suspicion to stop the van. We disagree. Under the principles of Terry
v. Ohio, 88 S. Ct. 1868 (1968), it is now well-established that law
enforcement officers may briefly detain pedestrians and motorists in
public, even without probable cause to arrest them, so long as the
officers have reasonable suspicion to believe that criminal activity is
afoot. See Baker, 47 F.3d at 693. Officers must base their reasonable
suspicion on “specific and articulable facts,” not merely “inarticulate
hunches” of wrongdoing. Terry, 88 S. Ct. at 1880. Moreover, the facts
giving rise to reasonable suspicion “must be judged against an objective
standard.” Id.
It is clear that when Mattas made the call to the EPPD dispatcher,
he possessed reasonable suspicion to stop the van himself. Over the
five-month period of surveilling the Copper Ridge and Rainbow Ridge
residences, Mattas and the other agents discovered a veritable
8
cornucopia of factors suggesting drug-related activities: currency
wrappers; phone records connecting the residents to other DEA
investigations; plane tickets to at least one known drug source country
(Mexico); the fact that the Copper Ridge records were all in Aguero-
Miranda’s wife’s name (thus insulating Aguero-Miranda’s identity and
possibly protecting the house from criminal forfeiture); the lack of any
visible employment on the part of the residents; the Rainbow Ridge
“stash house” nearby; the motley fleet of vehicles appearing
sporadically at the two residences; and the regular presence of
Villanueava, a suspected drug trafficker. On the evening of January 6,
1998, Mattas and the other agents also observed the beige van twice
arrive and depart from the Rainbow Ridge residence, and the three men
load the van with large duffel bags while in complete darkness. Any
analysis of reasonable suspicion is necessarily fact-specific, and
factors which by themselves may appear innocent, may in the aggregate
rise to the level of reasonable suspicion. See id. at 1880-81. See
also United States v. Holloway, 962 F.2d 451, 459 (5th Cir. 1992).5
Taken together, these factors all presented objective indications not
only that the Copper Ridge and Rainbow Ridge residences were being used
for narcotics trafficking, but also that the three men had just loaded
a substantial amount of drugs into the van. See United States v.
Coleman, 969 F.2d 126, 129-30 (5th Cir. 1992) (finding reasonable
5
“The reasonable suspicion standard does not require . . . that the
circumstances be such that there is no reasonable hypothesis of innocent
behavior.” United States v. Basey, 816 F.2d 980, 989 (5th Cir. 1987).
Our determination of reasonable suspicion is made by looking at all the
circumstances together to “weigh not the individual layers but the
‘laminated’ total.” United States v. Edwards, 577 F.2d 883, 895 (5th
Cir. 1978).
9
suspicion to make a Terry stop from a similar combination of factors
consistent with drug trafficking). Indeed, based on Mattas’s experience
and the probability that a drug transaction was about to take place,
“[i]t would have been poor police work” for him not to have called for
assistance in stopping the van at that moment. Terry, 88 S. Ct. at 1881.
We note that, notwithstanding the appellants’ argument to the
contrary, the fact that Mattas had not previously obtained a search or
arrest warrant is not fatal to the propriety of the stop. Even if
Mattas would have been successful in obtaining a warrant before the
stop, officers are not required to do so as soon as it is practicable
to do so. See United States v. Carillo-Morales, 27 F.3d 1054, 1063 (5th
Cir. 1994). Mattas and the agents had reasonable suspicion to stop the
van when it pulled away from the Rainbow Ridge residence; the absence
of an earlier search or arrest warrant in no way renders that stop
illegal.
The actual stop of the van by the EPPD officers was lawful because
under what is sometimes referred to as the “collective knowledge”
doctrine, the officers shared Mattas’s reasonable suspicion. The
officers stopped the van in reliance on the dispatcher bulletin, and
therefore were not required to have personal knowledge of the evidence
that created Mattas’s reasonable suspicion. See United States v.
Hensley, 105 S. Ct. 675, 681-82 (1985). Instead, if Mattas possessed
sufficient reasonable suspicion to stop the van when he made his call
to the dispatcher, then the actual stop by the EPPD officers, acting on
the dispatcher’s bulletin, was also supported by reasonable suspicion.
10
See id. at 682 (“[I]f a flyer or bulletin has been issued on the basis
of articulable facts supporting a reasonable suspicion that the wanted
person has committed an offense, then reliance on that flyer or bulletin
justifies a stop . . . .”); United States v. Armendariz-Mata, 949 F.2d
151, 153 (5th Cir. 1991); see also United States v. Vasquez, 534 F.2d
1142, 1145 (5th Cir. 1976) (discussing the “collective knowledge”
doctrine). Mattas’s request that the officers form their own reasonable
suspicion does not negate the fact that he had sufficient suspicion to
stop the van.6 The “collective knowledge” doctrine therefore preserves
the propriety of the stop.
II. Probable Cause to Search
Appellants contend that the EPPD officers had no probable cause to
conduct either a search or an arrest, but in fact it is quite clear that
the officers had probable cause to search the van. After stopping the
van, the EPPD officers approached it with their weapons drawn. As they
did so, they detected the distinct odor of marihuana wafting out. The
officers then ordered the appellants out of the van and conducted a
“protective sweep.” At the suppression hearing, a member of the SWAT
team testified that he smelled the marihuana when he was two or three
feet away from the van, and Mattas testified that he could smell it from
6
The parties make much of the dispatcher’s failure to relate
Mattas’s instruction that the EPPD officers form their own reasonable
suspicion before stopping the van. This argument is immaterial,
however, because under the “collective knowledge” doctrine, the EPPD
officers did not need to form their own suspicion. The admissibility
of the evidence recovered during this lawful stop turns on whether
Mattas, the officer who made the request for assistance, possessed the
requisite reasonable suspicion to make the stop. See Hensley, 105 S. Ct.
at 681 (discussing a similar point in the context of probable cause to
arrest). Having established that Mattas did have sufficient reasonable
suspicion to stop the van, the dispatcher’s error is irrelevant.
11
five to ten feet away. Regardless of precisely how near or far from the
van the officers were when they detected the odor, once they did so they
possessed probable cause to search the van. This Court has consistently
held that the smell of marihuana alone may constitute probable cause to
search a vehicle. See, e.g., McSween, 53 F.3d at 686-87; United States
v. Reed, 882 F.2d 147, 149 (5th Cir. 1989)(observing that the smell of
marihuana “in itself would have justified the subsequent search of
Reed’s vehicle”); United States v. Henke, 775 F.2d 641, 645 (5th Cir.
1985) (“Once the officer smelled the marijuana, he had probable cause
to search the vehicle.”); United States v. Villareal, 565 F.2d 932, 937
(5th Cir. 1978) (“The odor of marijuana detected by [the officer] as
emanating from the car furnished him with probable cause to search the
trunk.”). This probable cause arose before any appellant exited the
vehicle and before any officer touched it, and, as discussed below,
depended in no way on the subsequent conduct of the EPPD officers.7
7
We note that the subsequent “protective sweep” might also be
justified under Michigan v. Long, 103 S. Ct. 3469 (1983), as a “Terry
pat-down” of the van. In Long, the Supreme Court held that “the search
of the passenger compartment of an automobile, limited to those areas
in which a weapon may be placed or hidden, is permissible if the police
officer possesses a reasonable belief based on Id. at 3481 (quoting Terry, 88 S. Ct. at 1880). In this case, the EPPD
officers received a bulletin indicating that the van in question might
be carrying drugs, weapons, or both. Moreover, the officers smelled
marihuana as soon as they drew near to the van. These facts appear to
be objective, reasonable indicia of a dangerous situation and would in
all probability justify a weapons search of the passenger compartment.
See Baker, 47 F.3d at 693-94 (upholding protective search of passenger
compartment of vehicle based on officer’s
reasonable concern for safety); Coleman, 969 F.3d at 131 (same).
12
III. Detention vs. Arrest
The appellants further contend that even if the initial stop of the
van was lawful, the EPPD officers violated the appellants’ Fourth
Amendment rights by ordering them out of the van, pointing their weapons
at them, forcing them to kneel on the ground, handcuffing them, and then
placing them in the back of police vehicles. The appellants argue that
the EPPD officers converted a Terry stop based on reasonable suspicion
into a full-blown arrest for which the officers had no probable cause.
We conclude that whether or not this show of force amounted to a de
facto arrest is ultimately irrelevant because neither the evidence
seized from the van nor the appellants’ later statements were not a
product of the alleged arrest.
The EPPD officers acted lawfully by ordering the occupants to exit
the van after the stop. It is settled that officers conducting a lawful
Terry stop of a vehicle may order both the driver and the passengers to
exit the vehicle pending completion of the stop. In Pennsylvania v.
Mimms, 98 S. Ct. 330, 333 (1977) (per curiam), the Supreme Court held
that once a motor vehicle has been lawfully stopped for a traffic
violation, police officers may order the driver out of the vehicle.
Later, in Maryland v. Wilson, 117 S. Ct. 882, 886 (1997), the Court
extended Mimms to passengers. See Knowles v. Iowa, 119 S. Ct. 484, 488
(1998). The touchstone of Mimms and Wilson is that officer safety is
potentially threatened whenever officers stop a vehicle. See Mimms, 98
S. Ct. at 333 (“[W]e have specifically recognized the inordinate risk
confronting an officer as he approaches a person seated in an
automobile.”). Rarely are concerns for officer safety more paramount
13
than during the stop of a vehicle suspected of transporting drugs. See
Coleman, 969 F.2d at 131 n.20 (“Weapons and violence are frequently
associated with drug transactions, of course.”) (citing United States
v. Wiener, 534 F.2d 15, 18 (2d Cir. 1976)). In the present case, the
EPPD officers received a bulletin alerting them to a possible drug or
weapons scenario, and were entirely within their rights in ordering the
occupants out of the van.
Whether the officers’ subsequent conduct–training their weapons on
the appellants, ordering them to kneel, handcuffing them, and then
placing them in squad cars–amounted to a warrantless arrest is unclear.
As we have observed, “[t]he line between a valid investigatory stop and
an arrest requiring probable cause is a fine one.” United States v.
Hanson, 801 F.2d 757, 763 (5th Cir. 1986); compare United States v.
Roch, 5 F.3d 894, 897 (5th Cir. 1993) (finding that the defendant had
been “arrested or seized” when “the first words spoken by the police
officer who had his gun drawn was a command for Roch to get face down
on the ground and then, without further inquiry, Roch was handcuffed”)
with United States v. Sanders, 994 F.2d 200, 207 (5th Cir. 1993) (“[I]n
and of itself, the mere act of drawing or pointing a weapon during an
investigatory detention does not cause it to exceed the permissible
bounds of a Terry stop or to become a de facto arrest.”) and United
States v. Campbell, 178 F.3d 345, 349 (5th Cir. 1999) (“[D]rawn guns and
handcuffs do not necessarily convert a detention into an arrest.”).
We do not resolve this issue, for even if the show of force by the
officers constituted an illegal arrest, it would not affect our ultimate
disposition because neither the drugs nor the statements were products
14
of the alleged post-stop arrest. To warrant suppression, the challenged
evidence must have been obtained “by exploitation of [the alleged]
illegality” rather than “by means sufficiently distinguishable to be
purged of the primary taint.” Wong Sun v. United States, 83 S. Ct. 407,
417 (1963). This Court has recognized that the exclusionary rule’s bar
to admitting evidence “only extends from the 652 F.2d 559, 564 (5th Cir. 1981) (holding that evidence was
admissible because it was not derived from illegal police action); see
also United States v. Sheppard, 901 F.2d 1230, 1234 (5th Cir. 1990)
(finding evidence admissible if causal connection between alleged police
illegality and evidence introduced a trial is broken); United States v.
Nooks, 446 F.2d 1283, 1288 (5th Cir. 1971) (same).
In this case, the marihuana and statements were not gained by
“exploitation” of the allegedly illegal arrest. As discussed above, the
EPPD officers smelled the marihuana as they approached the van and
thereby had probable cause to search the van while the appellants were
still inside. Similarly, the statements were taken at EPPD headquarters
after formal arrest based on the discovery of the marihuana. The
reasonable suspicion to stop the van developed into probable cause to
search it when the marihuana was smelled, and once the marihuana was
discovered, the officers lawfully arrested the appellants. After the
appellants were ordered out of the van, it made no difference to the
ultimate result whether they stood by the side of the road or sat
handcuffed in police cars: in either situation, the officers would have
discovered the marihuana and arrested them. In short, there is no
15
causal link between the alleged “arrest” of the appellants and the
evidence later introduced at trial; the drugs and statements were not
fruits of that particular tree. Therefore there is no reason to
suppress the marihuana or the statements.
Conclusion
The district court’s order denying the appellants’ motion to
suppress, and appellants’ convictions and sentences, are AFFIRMED.
16