United States v. David Terance Tuley and Frank Christian Oller

546 F.2d 1264

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 25, 1977
• Docket: 75-3693
• Status: Published

Opinions

SIMPSON, Circuit Judge:

David Terance Tuley and Frank Christian Oiler appeal from convictions for violations of the federal laws relating to marijuana.¹ The basis of their appeal is that the district judge improperly denied their motions to suppress evidence.

On January 13, 1975, Special Agents Gabriel Bustamante and Carlos Torres of the Cameron County Organized Crime Task Force, Texas, received information from an unnamed, but “previously reliable”, confidential informant that two men from Oklahoma, staying in rooms 113 and 133 of the Ramada Inn Motel, Brownsville, Texas, were planning to transport a large quantity of marijuana from the Rio Grande Valley area to the state of Oklahoma. The informant also disclosed that the suspects would be using two vehicles, a pickup truck with a camper, and a motor home, to transport the contraband. Upon receipt of this information, the Texas officers began a surveillance of the suspects. Observation quickly corroborated the informant’s tip as to the description of the vehicles and the presence of the two suspects in the indicated rooms. The vehicles bore Oklahoma license plates, which verified the information that the men were from Oklahoma and supported to some extent the statement that they would transport marijuana to that state.

On January 15, 1975, Gary Morrison, an agent of the federal Drug Enforcement Administration (DEA), joined the surveillance.² At the suppression hearing, Morrison testified to the following:

The surveillance had been started, initiated, upon information received by Cameron County Task Force Agent Carlos Torres . * # * * * *

Agent Torres advised the other agents involved in the case that he had received information from a credible source that two men were in Brownsville, Texas, staying at the Ramada Inn in Rooms 113 and 133. These men were driving a pickup truck with a camper, and a motor home, and that they were here in the Valley to transport a quantity of marijuana north out of the Valley.

Agent Lofstrom [another D.E.A. agent] advised me that they had located two vehicles meeting the description, both with Oklahoma plates, at the Ramada Inn, and that these vehicles had also driven to South Padre Island to the Queen Isabella Inn where the drivers of the vehicles had been observed entering Apartment 1 and 2 of the Queen Isabella Inn.

Agent Lofstrom advised me that he had received information from another D.E.A. office that the renter of Apartment 1 and 2 of the Queen Isabella Inn, Robert Muller,³ was involved in transporting large quantities of marijuana from the border area to the Oklahoma City Area.

Morrison and the other agents on Janu- ' ary 15 followed a Chevrolet pickup truck with a camper, and a Champion motor home from the Queen Isabella Inn area, Port Isabel, Texas, to the Ramada Inn in Brownsville, Texas. At the motel, four people left the vehicles, went into room 133, and took articles from that room and placed them in the rear of the pickup truck. The two vehicles shortly returned to- Port Isabel, and the surveillance was discontinued for that day.

About noon the next day, January 16, Morrison and other agents resumed the surveillance of the pickup truck as it moved west, away from the Port Isabel area and in the direction of McAllen, Texas. As the vehicle proceeded along Highway 83, near Mercedes, Texas, Morrison and two other agents stopped the pickup truck, which was occupied by appellant Tuley and his Doberman Pinscher. A search of the vehicle produced a .38 caliber pistol under the front seat and some marijuana debris in the camper area. At that point, Tuley was placed under arrest and advised of his constitutional rights. Tuley was then taken to the Brownsville district office for processing.

At the Brownsville office, Tuley told Agents Morrison and Lofstrom that he was hired by unknown persons in Oklahoma City to come to Brownsville and Port Isabel, Texas, to assist in transporting a large quantity of marijuana to the Oklahoma City area. Later he told the agents that the marijuana was in a motor home situated on South Padre Island Beach. A search warrant was issued for the motor home,⁴ and 546 pounds of marijuana were found therein. Oiler’s arrest followed, on the basis of marijuana found in the motor home.⁵

A warrantless search is “per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent’ circumstances.” Coolidge v. New Hampshire, 1971, 403 U.S. 443, 474-475, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564. An exception exists as to the search of a moving vehicle, when probable cause exists for such a search. The seminal case as to warrantless searches of vehicles is Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 453, where the Court held:

“ . . . that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

“Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. * * * * * *

The measure of legality of such a seizure is . that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes had contraband liquor therein which is being illegally transported.”

267 U.S. at 153, 155-156, 45 S.Ct. at 285-286. See Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596; Chambers v. Maroney, 1970, 399 U.S. 42, 49, 90 S.Ct. 1975,1980, 26 L.Ed.2d 419; Potter v. United States, 5 Cir. 1966, 362 F.2d 493, 497.

Thus, to justify the stop and search without a warrant of the vehicle driven by Tuley in the present case, we must find that the officers had probable cause to believe that it contained contraband. Probable cause exists if “the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offence has been [or is being] committed . . Stacey v. Emery, 1878, 97 U.S. 642, 645, 24 L.Ed. 1035. See Spinelli v. United States, 1969, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637; Beck v. Ohio, 1964, 379 U.S. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d 142; Henry v. United States, 1959, 361 U.S. 98, 80 S.Ct. 168, 171, 4 L.Ed.2d 134; Brinegar v. United States, 1948, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879.

In United States v. Squella-Avendano, 5 Cir. 1971, 447 F.2d 575, 580, this Court commented on the composite test of Aguilar v. United States, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli, supra1.

“First, if the information provided is in such ‘detail’ and ‘minute particularity’ that ‘a magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way,’ then the report, if sufficiently incriminating, may, without more, be grounds for finding probable cause. Secondly, less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agencies yields sufficient verification or corroboration of the informant’s report to make it ‘apparent that the informant had not been fabricating his report out of whole cloth.’ Corroboration must render the report ‘of the sort which in common experience may be recognized as having been obtained in a reliable way.’ Thirdly, even a report that is not under the above two standards sufficient of itself to establish probable cause may count in the magistrate’s determination of probable cause, but only as one of a number of other factors of ‘further support’ tending to show probable cause. Examples of satisfactory ‘further support’ given in Spinelli involved law enforcement agencies’ knowledge of independent facts which suggest criminal conduct or of facts which take on an aura of suspicion in light of the informant’s tip.”

While here the source of the informer’s information was not revealed, nor how the information was gathered, the detailed facts relayed to the agents and corroborated by them were of such a nature, in light of all the surrounding circumstances, that the district court could reasonably have inferred that the informer obtained his information “in a reliable manner and had substantial evidence on which to base his conclusion that the Defendants were probably engaged in criminal activity”. Memorandum and Order of the District Court, p. 9.

In United States v. Brennan, 5 Cir. 1976, 538 F.2d 711, 720, this Court noted that “an accumulation of innocent detail conforming to the original tip” may have significant corroborative value. The agents in the present case had been informed, by an informer said to be credible, as to a number of particulars regarding the appellants Tuley and Oiler, including where they were staying (motel and room numbers), that they were from Oklahoma, a physical description of the vehicles they would be using (which vehicles were found to have Oklahoma license plates), and further that the men in question (Tuley and Oiler) were about to transport large quantities of marijuana out of the Rio Grande Valley to Oklahoma. The agents, through surveillance and investigation, were able to corroborate the essentials of this information. In addition and of significance, the agents had received information from another DEA agent that the apartments which appellants had been observed visiting at Queen Isabella Inn were rented by one Robert Muller reported by that agent to be “involved in transporting large quantities of marijuana from the border area to the Oklahoma City area.”

Thus, it seems reasonable to conclude that while these matters considered separately might not be a sufficient basis for probable cause, when the agents considered their combined cumulative effect, sufficient probable cause was present. It was coupled with the necessary exigent circumstances, a moving vehicle, Carroll v. United States, supra, headed on its way out of the Rio Grande Valley. A warrantless search of the camper Tuley was operating was constitutionally permissible. See Whiteley v. Warden, 1971,401 U.S. 560, 567, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306; Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Potter v. United States, 5 Cir. 1966, 362 F.2d 493, 497-498.

The following search of Oiler’s motor home was likewise permissible. The results of the search of the camper added to the prior knowledge provided a sufficient basis for issuance of a search warrant. This is so whether or not the statements made by Tuley when he was arrested were or were not related to the magistrate who issued the search warrant.⁶

The convictions of appellants ⁷ are AFFIRMED.

1 . Both appellants were charged and convicted under one count for conspiring to possess marijuana, with intent to distribute, in violation of Title 21, U.S.Code, Sections 841(a)(1) and 846, and one count for possessing 546 pounds of marijuana, with intent to distribute, in violation of Title 21, U.S.Code, Section 841(a)(1). Tuley was also charged and convicted under one count for possessing 326 grams of marijuana, in violation of Title 21, U.S.Code, Section 844(a).

2 . Morrison testified that he had participated briefly in the surveillance on January 14.

3 . Muller was also charged in the same indictment with violations of the federal laws relating to marijuana and additional offenses. His motion for severance was granted, and he was tried separately, and convicted. An appeal from his conviction is docketed here as No. 75-4045.

4 . The testimony of Morrison indicates uncertainty as to whether the information received from Tuley was part of the basis for the search warrant of the motor home:

Q. [by Government counsel]: Then what happened after you were told about the marijuana being in the motor home out on South Padre Island?

A. [Morrison]: I assisted Agent Lofstrom in preparing a search warrant for this motor home.

Q. Was a warrant issued?

A. Yes, it was.

The Court: That was based mainly on what Tuley had told you when he was arrested? A. Yes Sir. The warrant was based on that and the information that Agent Torres had received earlier.

The Court: Had received earlier. But Tuley himself had told you that marijuana is in a motor home on South Padre Island. Was it the same motor home that was seen at the Ramada Inn?

A. Yes Sir, it was the same motor home. However, the information that Tuley told us concerning the marijuana being in the motor home was not included in the warrant as he advised us of that portion of the information after preparation of the warrant.

Record on Appeal (R.App.), Vol. IV, pp. 8-9.

Q. [defense]: . . . The search of the Champion motor home then did not take place as a result of anything Mr. Tuley told the officers?

A. [Morrison]: The search of the motor home took place as a result of a warrant . I’m not sure if any information that Mr. Tuley relayed is contained in the warrant or not. I don’t remember.

R.App., Vol. IV, p. 18.

5 . A search warrant for Muller’s quarters at the Queen Isabella Inn was then procured and executed, resulting in the discovery of a small amount of marijuana, 185 amphetamine tablets and numerous weapons, and Muller’s arrest. As indicated, N. 3, supra, the counts of the indictment involving the charges against Muller were severed and tried separately. We are concerned on this appeal only with the legality of the first two searches, not the search of Muller’s quarters.

6 . See footnote 4, supra. Assuming the legality of the initial search of the camper, the fruits of that search were properly used to establish probable cause in a subsequent search. See Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. The government brief refers to the successive searches (a) of the camper, (b) of the motor home and (c) of Muller’s premises as “piggy-backed” upon the preceding searches.

7 . Appellant Tuley also urges that the trial court erred by refusing to allow Tuley to call his co-defendant, Oiler, to the stand to question him in the presence of the jury to permit the jury to hear Oiler’s responses, including his refusal to testify on the grounds that his testimony would incriminate him and him alone. The point is without merit. Since Oiler made it clear out of the jury’s presence that he would refuse to answer any questions concerning the case, (conceded by Tuley’s brief, p. 20) the trial court did not err in refusing to allow Tuley to call Oiler to testify for the primary purpose of that refusal being made before the jury. Cf. San Fratello v. United States, 5 Cir. 1965, 340 F.2d 560, pet. for reh. den. 1965, 343 F.2d 711.