United States v. Garcia ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-40854
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN FELIPE GARCIA,
Defendant-Appellant.
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_____________________
No. 97-40855
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANGEL GARCIA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
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June 21, 1999
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Michael Garcia and Juan Garcia pleaded guilty to conspiracy
to possess, and actual possession with the intent to distribute,
over 100 kilograms of marijuana in violation of 18 U.S.C. § 2 and
21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846. They entered their
guilty pleas after an adverse hearing on a motion to suppress
evidence, including their confessions. The defendants
conditioned their guilty pleas, however, preserving their right
to appeal the denial of their motion. Thus, the only issue on
appeal is whether the district court erred in refusing to
suppress the evidence. We conclude that officials did not
violate the defendants’ Fourth Amendment rights, that the
district court did not err in denying their motion to suppress,
and that their convictions must be affirmed.
I
The parties do not dispute the relevant facts. The
defendants first encountered Border Patrol agents when they
emerged from the end of a dirt trail in Hebronville, Texas, at
11:15 P.M. This occasion was not, however, the first time that
the agents knew of the defendants’ presence on the trail. The
defendants had set off sensors, located at several points along
the trail, earlier in the evening.
The Border Patrol had placed sensors on this trail because
the agents knew the trail frequently was used by drug smugglers.
According to testimony given by a Border Patrol agent, the trail
provided a convenient route for drug smugglers because it allowed
them to circumvent the Border Patrol’s nearby roadside
checkpoint. On multiple occasions in the months preceding the
defendants’ arrests, Border Patrol agents learned of drug
smuggling instances along the trail. Sometimes the agents caught
the smugglers. Other times, the agents simply discovered drugs
stashed in the brush around the trail. In the course of these
2
events, the agents learned that the smugglers would typically
use heavy backpacks to transport the drugs. The Border Patrol
agents attempted to enhance their effectiveness in patrolling the
area by placing sensors along the known drug route.
When these sensors alerted to activity on the evening the
defendants were arrested, Border Patrol agents went to the
location of the sensors. There they discovered several
footprints, left in the dirt, bearing distinctive markings from
the soles of what the agents later learned were the defendants’
shoes. The agents also noted that these footprints were deep,
indicating that the persons creating them either carried
something heavy or that those persons were themselves heavier
than average. The agents attempted to follow the footprints,
hoping to catch up with the persons who had made them.
Although the agents traveling by foot on the trail never
caught up to the defendants, another agent (who had been informed
of the sensor alert) waited in his patrol vehicle at the end of
the trail. When the defendants emerged from the trail, they
began walking down a street adjacent to the trail’s exit. After
allowing the defendants to walk for less than one block, the
agent in the patrol car began to approach the defendants. The
defendants then saw the patrol vehicle and immediately ducked
into the porch of a house along the road. The agent (Agent
Charles) left his vehicle and found the defendants hiding in the
shadows of the porch.
3
After Agent Charles--still some distance from the
defendants--began to ask them questions, the defendants
approached him. During the ensuing conversation, the defendants
were evasive and appeared nervous. Agent Charles first asked the
defendants what they were doing. Juan Garcia answered by saying
that they were visiting a cousin who lived in the house. Shortly
after Agent Charles made contact with the defendants, Agent
Chavez arrived on the scene. After he arrived, Agent Chavez also
asked the defendants what they were doing. Juan told this agent
that they were out hunting. The defendants, however, had no
hunting gear and it was not hunting season. The agents also
asked the Garcias where they had come from. Juan replied that
they had come from his house and he pointed in the relevant
direction. Agent Charles, however, had seen the defendants come
from a different direction. The agents also asked the defendants
to show them the bottoms of their shoes. The soles of their
shoes were identical to the markings made on the trail near the
sensors. Finally, the agents asked Juan if they could look at
his shoulders. Juan agreed and the agents saw fresh bruising on
his shoulders in the pattern of strap marks that a heavy backpack
would leave. After hearing the defendants’ answers and seeing
the bruises, Agent Chavez concluded that the defendants had
probably been smuggling narcotics along the trail.
Agent Chavez then took the defendants to the nearby
checkpoint station. Agent Perez was the only agent manning this
4
station and he conducted traffic through the checkpoint as part
of his duties that night. Agent Chavez told Agent Perez that he
would be leaving the defendants at the checkpoint while he, Agent
Chavez, left to help several other officers search the trail for
the drugs. The two agents then read the defendants their Miranda
rights and placed them into separate holding cells. Agent Chavez
left. Within a few minutes, and after Agent Perez had asked the
defendants if they knew anything about the drugs, Michael
confessed and said that he would help the agents locate the
drugs. Soon after, Juan also agreed to help the agents locate
the drugs. The agents and the defendants eventually found that
drugs sometime between 1:00 A.M. and 1:30 A.M.
II
At the suppression hearing, the defendants argued that the
Border Patrol agents did not have probable cause to arrest at any
time before the defendants gave their confessions. Furthermore,
they argued that their Fourth Amendment rights were violated when
the agents placed them in the holding cells because that
confinement did not constitute a reasonable detention under Terry
v. Ohio, 392 U.S. 1 (1968), and its progeny. The defendants
contended that their confessions and agreements to aid in
locating the drugs were the direct result of the unconstitutional
seizure of their persons. Therefore, they argued, the evidence
of their confessions and the drugs should be suppressed.
5
The district court disagreed. The court concluded that it
was reasonable to place the defendants in the holding cells as
part of an investigatory detention, not rising to an arrest.
Although the court noted that the case presented a close call, it
concluded that a temporary detention was warranted in this case
because of the entirely warranted reasonable suspicion that the
defendants had smuggled narcotics, and because the agents needed
time to sweep the area for drugs. Therefore, the court concluded
that the defendants were not, de facto, under arrest without
probable cause at the time they gave their confessions.
III
We conclude that the district court did not err in denying
the defendants’ motion to suppress the evidence. In our view,
however, the denial was correct because the agents had probable
cause to arrest the defendants at the time they transported them
to the checkpoint. Thus, even if the decision to place the
defendants in the holding cells constituted a de facto arrest,
probable cause warranted that arrest. In coming to these
conclusions, we review the district court’s findings of fact for
clear error. United States v. Ramirez, 145 F.3d 345, 352 (5th
Cir. 1998). We review the application of those facts to the
relevant Fourth Amendment standards de novo. Id.1
1
We may, of course, affirm the judgment of the district court for reasons other than those given
or relied on below. See, e.g., Terrell v. University of Texas System Police, 792 F.2d 1360, 1362 n.3
(5th Cir. 1986). In drawing our legal conclusion that probable cause existed before the agents placed
the defendants in holding cells, we have accepted all of the district court’s factual findings. The
6
A
We begin with a word about the relevant law. We have long
known that law enforcement officials may arrest an individual in
a public place without a warrant if they have probable cause to
believe that the individual committed a felony. See, e.g.,
United States v. Watson, 423 U.S. 411, 423-24 (1976). “Probable
cause for a warrantless arrest exists when the totality of facts
and circumstances within a police officer’s knowledge at the
moment of arrest are sufficient for a reasonable person to
conclude that the suspect had committed or was committing an
offense.” United States v. Wadley, 59 F.3d 510, 512 (5th Cir.
1995). When considering what a “reasonable person” would have
concluded, we take into account the expertise and experience of
the law enforcement officials. See, e.g., United States v.
Ortiz, 422 U.S. 891, 897 (1975).
It is almost a tautology to say that determining whether
probable cause existed involves a matter of probabilities, but it
nevertheless fairly describes the analysis we undertake.
Brinegar v. United States, 338 U.S. 160, 175 (1949) (“In dealing
with probable cause, however, as the very name implies, we deal
with probabilities. These are not technical; they are the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.”); Hart
district court did not clearly err in making any of those findings.
7
v. O’Brien, 127 F.3d 424, 444 (5th Cir. 1997) (stating that
probable cause requires “a showing of the probability of criminal
activity”), cert. denied, 119 S.Ct. 868 (1999). “The probable
cause issue must be analyzed under the ‘totality of the
circumstances’ as to whether there is a ‘fair probability’ that a
crime occurr[ed].” United States v. Antone, 753 F.2d 1301, 1304
(5th Cir. 1985) (quoting Illinois v. Gates, 462 U.S. 213(1983)).2
A “fair probability” does not mean that a reasonable
official would have thought it more likely than not that the
defendant committed a felony. United States v. Adcock, 756 F.2d
346, 347 (5th Cir. 1985) (per curium); Antone, 753 F.3d at 1304.
Although the “fair probability” must certainly be more than a
bare suspicion, see Brinegar, 338 U.S. at 175, our court has
rejected the notion that the government must show that a
reasonable person would have thought, by a preponderance of the
evidence, that a defendant committed a crime. Antone, 753 F.2d
at 1304; Adcock, 756 F.2d at 347.3 In short, the requisite “fair
2
In discussing the appropriate legal standard under which a court should determine if probable
cause existed, we have taken note of the fact that
the function of arrest is not merely to produce someone in court for prosecution but
also to enable a police officer who believes that the person has committed a crime to
complete his investigation . . . .
United States v. Raborn, 872 F.2d 589, 593 (5th Cir. 1989).
3
At one point, we did quote an opinion of the Ninth Circuit that stated,
8
probability” is something more than a bare suspicion, but need
not reach the fifty percent mark.
B
After thoroughly reviewing the record, we have no doubt that
a reasonable officer would have found it a “fair probability”
that the defendants had smuggled drugs. At the time Agent Chavez
took the defendants to the checkpoint, the following facts were
known to the agents: the defendants had just traveled along a
trail notorious for drug smuggling; the defendants took their
journey during the dark hours of the night; the defendants’
footprints indicated that they were carrying something heavy and
at least one of the defendants had bruising on his shoulders
consistent with the known modus operandi of past drug smugglers;
when the defendants first saw a Border Patrol agent approach,
they attempted to hide; upon questioning by agents, the
defendants seemed evasive and nervous; and the defendants
The test is whether ordinarily, reasonable men, possessed of the experience and knowledge
of (the arresting officers) would conclude that the transaction . . . was more likely than not
a criminal transaction.
United States v. Tinkle, 655 F.2d 617, 622 (5th Cir. 1981) (quoting United States v. Bernard, 607
F.2d 1257, 1266-67 (9th Cir. 1979)). In Antone, however, we rejected this standard and we relied
on an intervening Supreme Court decision in doing so. See Antone, 753 F.2d at 1304 (relying upon
Texas v. Brown, 460 U.S. 730 (1983)). Thus, our decision in Antone is the binding precedent. See
also United States v. Burrell, 963 F.2d 976, 986 (7th Cir. 1992) (“Probable cause requires more than
bare suspicion but need not be based o n evidence sufficient to support a conviction, nor even a
showing that the officer’s belief is more likely true than false.”); United States v. Cruz, 834 F.2d 47,
50 (2d Cir. 1987) (“In order to establish probable cause, it is not necessary to make a ‘prima facie
showing of criminal activity’ or to demonstrate that it is more probable than not that a crime has been
or is being committed.”). Compare United States v. Raborn, 872 F.2d 589, 593 (5th Cir. 1989)
(stating that the standard is unsettled in our circuit).
9
responded to the agents’ questions with obviously false and
inconsistent explanations.
The question we must address is whether Agent Chavez
reasonably believed that there was a fair probability that the
defendants had smuggled drugs.4 Although each of the facts just
listed may not, when standing alone, provide sufficiently
incriminating evidence, the coincidence of all these facts surely
would alert the reasonable Border Patrol agent to a fair
probability of drug smuggling. See Hart, 127 F.3d at 444(stating that probable cause may exist even though officers have
observed no unlawful activity). The defendants did not supply
the Border Patrol agents with a truthful explanation for their
unusual activity--i.e., traveling along a known drug trail during
the dark hours of the night--and the agents testified that they
knew of no legitimate reason for being on this trail at night.5
See id. at 444 (“The observation of unusual activity for which
there is no legitimate, logical explanation can be the basis for
probable cause.”) (quoting United States v. Alexander, 559 F.2d
1339, 1343 (5th Cir. 1977)). We therefore conclude that the
Border Patrol agents had probable cause to arrest Juan and
Michael Garcia before they were placed in the holding cells.
IV
4
The test is an objective one, see, e.g., United States v. Cooper, 949 F.2d 737, 744 (5th Cir.
1991), but we also consider the agent’s knowledge and experience, see, e.g., id. at 745.
5
The trail ran through two private ranches.
10
For the foregoing reasons, we find that the district court
did not err in denying the defendants’ motion to suppress the
evidence in this case. The judgment of the district court is
A F F I R M E D.
11
BENAVIDES, Circuit Judge, dissenting:
I dissent from the majority’s decision because I disagree with
their conclusion that the border patrol agents had probable cause
to arrest Michael and Juan Garcia before Michael Garcia confessed
at the checkpoint station. In finding probable cause, the majority
both contravenes precedent in this Circuit and establishes a
threshold for arrest that threatens to eviscerate protections
afforded by the Fourth Amendment.
When the Garcias were taken into custody, the border patrol
agents were aware of only two potentially incriminating facts.
First, the Garcias had just left a trail sometimes used by drug
traffickers, and they provided the agents with inconsistent
statements about that fact. Second, one of the Garcias might have
been carrying something at some point along the trail, as evidenced
by bruises on one of their shoulders and some deep footprints found
along the trail. Although these two facts legitimately raised
suspicion, I do not find them sufficient to establish probable
cause. In none of the cases cited by the majority or the
government was probable cause for a drug-related arrest founded on
such scant information. In each of those cases, extremely
suspicious behavior was combined with at least some evidence
indicating the existence and whereabouts of drugs. See United
States v. Adcock, 756 F.2d 346, 347 (5th Cir. 1985) (probable cause
based in part on cocaine found on a person who had just exited the
suspect’s house); United States v. Antone, 753 F.2d 1301, 1304 (5th
12
Cir. 1985) (probable cause based in part on an informant’s tip
concerning the location of marijuana and the smell of marijuana
from a suspect’s vehicle); United States v. Harlan, 35 F.3d 176,
179 (5th Cir. 1994) (probable cause based in part on a “visible
large bulge,” presumed to be cocaine, in the suspect’s jacket);
United States v. Piaget, 915 F.2d 138, 140 (5th Cir. 1990)
(probable cause based in part on the transfer between the suspects
of a gray canvas bag which was presumed to contain narcotics);
United States v. Willis, 759 F.2d 1486, 1495 (5th Cir. 1985)
(probable caused based, in part, on stuffed duffel bags, presumed
to contain cocaine, in the passenger area of a private luxury
passenger plane). In this case, the border patrol agents had no
physical evidence suggesting that the Garcias possessed any
narcotics. While it was reasonable for the border patrol to
suspect that the Garcias had hidden marijuana somewhere in the
brush, such conjecture does not constitute probable cause to make
an arrest. Only once Michael Garcia’s admission to Agent Perez
substantiated that conjecture did the border patrol have probable
cause to place the Garcias under arrest.
Instead of stretching the facts of this case to eke out a
basis for probable cause, I would have this court review the
decision of the district court on the grounds on which it was
decided. The district court found that the temporary detention of
the Garcias in a jail cell was lawful under Terry v. Ohio, 392 U.S.
1 (1968), based solely on the border patrol agents’ reasonable
13
suspicion that criminal activity was afoot. Thus, the district
court found that when the Garcias were placed in holding cells,
they were not arrested but only reasonably detained. Although
several Courts of Appeals have, on the basis of reasonable
suspicion, sanctioned less drastic uses of force, see, e.g., United
States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993) (allowing use
of handcuffs on the basis of reasonable suspicion), none have yet
considered whether detaining a suspect in a cell necessarily
exceeds the limits on investigatory detentions prescribed by Terry
and its progeny. Rather than help elucidate this area of unsettled
law, the majority elects to muddle the previously settled
protections afforded citizens under the Fourth Amendment. I
dissent.
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