United States v. Edgar Castro, United States of America v. Susan Gomez

129 F.3d 752

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 19, 1997
• Docket: 96-40687, 96-40694
• Status: Published

Opinions

POLITZ, Chief Judge:

Edgar Castro and Susan Gomez were convicted on guilty pleas of conspiracy to possess with the intent to distribute and possession with the intent to distribute cocaine after a search of their rented Chevrolet Suburban revealed approximately 900 pounds of cocaine. Concluding that the cocaine should have been suppressed as evidence obtained in violation of the fourth amendment to the United States Constitution, we vacate the convictions and remand to the district court.

BACKGROUND

On November 9, 1996 numerous agents from various federal and state law enforcement agencies conducted surveillance of Javier Vallaho in the Memorial City Mall in Houston, Texas.¹ During the course of the surveillance the agents observed Vallaho talking to Gomez and an unidentified male Hispanic. Gomez and the man then left the Mall in a grey van and drove to a convenience store located several miles distant. Upon arrival at the convenience store, the man exited the grey van and made a call from a public telephone. The man then drove to a nearby K-Mart and dropped off Gomez. Between ten and fifteen agents followed the van to the convenience store and then to K-Mart.

Gomez entered the K-Mart, purchased several innocuous items, and then used a nearby public telephone. Unbeknownst' to Gomez, one of the agents overheard the entire content of this telephone call. During the course of this call Gomez made no reference to any illegal activity. Meanwhile, the van exited the K-Mart parking lot and was driven to a nearby residence. Ten agents in vehicles and a helicopter followed the van but the agents observed no illegal activity. After stopping briefly at the residence, the van returned to the K-Mart parking lot, the man exited and handed the keys to Gomez, and left in another car. Gomez then drove the van from the parking lot to a local motel.

At the motel, Gomez met Castro and Muriel Cristina Vieencio, and the three of them unloaded full grey trash bags from the van. Gomez, Castro, and Vieencio thereafter departed the motel in separate cars and drove back to the Mall. After spending approximately fifteen to twenty minutes inside, the three left the Mall in a rented blue Suburban and began traveling north on U.S. Highway 59. Castro drove the Suburban, Vieencio sat in the front seat, and Gomez occupied the back seat. The agents followed the Suburban for approximately 115 miles as it traveled through the Texas counties of Harris, Montgomery, and San Jacinto, finally entering Polk County. Because the agents following the Suburban did not have probable cause — or even reasonable suspicion — for stopping the Suburban, they determined to enlist the aid of the Polk County Sheriffs Department.²

The agents contacted the Polk County Sheriffs Department and informed Deputy Sheriff Mike Nettles that a rented blue Suburban “involved in a narcotics transaction” was driving through his county and needed to be stopped. The agents instructed Nettles that he had to “develop his own probable cause” for stopping the Suburban. Nettles positioned his patrol car prominently in the median of Highway 59. As the Suburban approached, Nettles claims to have observed that the driver was not wearing a seat belt and that the Suburban appeared to be exceeding the posted speed limit. Nettles followed the Suburban for several miles and, while doing so, used his speedometer to calculate its speed. Nettles did not use the radar unit in his patrol ear to determine the speed of the Suburban.³

Finally, Nettles turned on the flashing lights on his patrol car and pulled the Suburban over.⁴ Nettles ordered Castro to exit the Suburban, informed him that he was being stopped for speeding and failure to wear a seat belt, and asked for a driver’s license and car registration. Castro produced a valid Maryland license, and Nettles ran a check. The check revealed no outstanding warrants. Nettles then questioned Castro about his presence in Texas. Castro explained that he had flown to Houston with his wife, Vicencio, to attend a construction conference, and that they were on their way home. Castro further explained that Gomez was-a family friend. Nettles then questioned Gomez and Vicencio, and Gomez explained that she had been in Houston with Castro and Vicencio to purchase winter clothing.

Characterizing the responses he received from Gomez, Castro, and Vincencio about the reason they had been in Houston and their destination as being somewhat inconsistent, Nettles decided to arrest Gomez and Vicen-eio for failure to wear a seat belt.⁵ He placed the two under arrest and sought permission to search the Suburban. Castro declined to consent.⁶ Nettles then impounded the Suburban and transported it and Castro, Gomez, and Vicencio to the Polk County Sheriffs Department.⁷ The Suburban was taken to the Polk'County sally port purportedly for an inventory search. Upon arrival, when Castro again refused to consent to a search, a drug dog was brought over. The drug dog alerted in the cargo area of the vehicle and the ensuing search uncovered approximately 900 pounds of cocaine. Castro, Gomez, and Vicencio were arrested on drug charges. Neither Castro nor Vicencio were cited or ticketed for the seat belt violation. No inventory search of the Suburban was conducted by the Polk County Sheriffs personnel.

Castro, Vicencio, and Gomez were indicted by a federal grand jury on one count of conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. § 846, and one count of possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Both Castro and Gomez filed motions to suppress the cocaine as illegally seized evidence. After a suppression hearing the district court denied the motions. Castro and Gomez pled guilty to both charges, reserving their right to appeal the denial of the motions to suppress. The district court sentenced Castro and Gomez to concurrent terms of 135 months imprisonment, and a five year term of supervised release. Both timely appealed.⁸

ANALYSIS

We employ a two-tiered standard in' reviewing the denial of a motion to suppress. We first review the factual findings for clear error and then review the trial court’s ultimate conclusion as to the constitutionality of the law enforcement action de novo.9 Our holding today turns on the latter.

The admissibility of the cocaine hinges on the validity of taking possession of the Suburban for purposes of an inventory search. An inventory search is a well-defined exception to the warrant requirement of the fourth amendment to the United States Constitution.¹⁰ It is a search of property lawfully seized and detained. Such searches are conducted in order to protect the property that has been lawfully seized, to protect the police against claims of lost or stolen property, and to protect the police from potential danger.¹¹

An inventory search is permitted and is deemed reasonable only if conducted according to standardized procedures.¹² More importantly, an inventory search is reasonable and lawful only if conducted for purposes of an inventory and not as an investigatory tool to produce or discover incriminating evidence.¹³ An inventory search may not be used by police as a “ruse for a general rummaging.”¹⁴ If police use an inventory search in such a manner, any evidence discovered during the course of that search is subject to suppression.

Applying these rubrics to the taking into possession and search of the Suburban convinces us that the cocaine discovered must be suppressed. The Constitution clearly mandates such a result. We entertain no doubt that the search of the Suburban was conducted for investigatory rather than protective administrative purposes. We can reach no other reasonable legal conclusion on the record before us. The Polk County search was not a lawful search.

Castro and Gomez were the focus of a massive effort by numerous federal and local drug enforcement agents to uncover evidence of illegal drug activity. The agents conducting the surveillance of Castro and Gomez followed them first through the City of Houston and, finally, through several Texas counties. At no time did either Castro or Gomez do anything that conceivably could have served as the basis for a finding of probable cause of a drug violation. Consequently the agents obviously concluded that they were not able to make a legal stop or arrest of Castro or Gomez for any drug related violation. If these numerous federal and state law enforcement agents had, or believed that they had, probable cause to arrest, it defies all logic and reason to believe they would not have done so during the early surveillance or at some time in the 100-plus miles of trailing through several Texas counties.

Instead, the agents orchestrated a routine traffic stop,¹⁵ contacting a local deputy sheriff and instructing him to “create his own probable cause.” The deputy sheriff did as instructed and, while the agents stood by and watched, ostensibly arrested Castro and Vicencio for a seat belt violation.¹⁶ When Castro refused to consent to a search of the Suburban, the deputy sheriff took possession of it, presumably to safeguard its contents while Castro and Vicencio were in custody on the seat belt violation. None of the occupants of the Suburban was cited for that traffic violation — no ticket was issued and no charges were filed.

Further, no inventory search was ever undertaken at the Polk County sally port. Prior to any deputy sheriff commencing an inventory search, a drug dog was summoned. The drug dog alerted, a search was made as a consequence thereof, and the cocaine was discovered. The occupants of the Suburban and the Suburban then were taken from Polk County to Houston. The contents of the Suburban ultimately were inventoried in Houston.

We are persuaded that a routine inventory search — conducted for the sole purpose of legitimately creating an accurate inventory of the. contents of a vehicle — would not immediately be preceded by such an obvious attempt to discover the incriminating evidence of which the deputy sheriff initially had been advised. We perforce must conclude that taking possession of the Suburban for purposes of an inventory search was nothing more than a ruse to perform an unauthorized search and the officers, particularly the federal officers, were fully aware of such. The cocaine discovered as a result of the search of the Suburban must be and is suppressed.

For the foregoing -reasons, we VACATE the convictions of Castro and Gomez, suppress the evidence obtained in the illegal search of the Suburban, and REMAND to the district court for further proceedings consistent herewith.

1 . Agents from the Houston Police Department, the U.S. Drug Enforcement Agency, and the Federal Bureau of Investigation cooperated in the surveillance.

2 . The agents unsuccessfully attempted to secure the aid of the Texas Department of Public Safety as they trailed the vehicle.

3 . Nettles testified at the suppression hearing that he did not use his radar unit to clock the speed of the Suburban because he was afraid that to do so. would "tip off" the driver of the Suburban about his presence. Nettles did not explain, however, why using the radar unit would be any more conspicuous than his presence in a marked patrol car on the median and then on Highway 59. In addition. Nettles conceded that his speedometer had not been calibrated in over three years.

4 . DEA agents were present on the roadside when Nettles stopped the Suburban.

5 . A question is presented, one which we do not now answer, whether Nettles was legally authorized to arrest a nonresident for a seat belt violation. As a general rule, minor traffic violations are arrestable offenses under Texas law. The Nonresident Violator Compact (NVC), however, carves out an exception to that general rule. The NVC expressly recognizes that the practice of arresting nonresident violators and requiring them to post bond to secure their appearance "causes unnecessary inconvenience and, at times, a hardship for the motorist who is unable at the time to post collateral, furnish a bond, stand trial, or pay the fine, and thus is compelled to remain in custody until some arrangement can be made.” TEX. TRANSP. CODE ANN. § 703.002 art. 1(a)(5) (Vernon 1997). To remedy this problem, Texas adopted the NVC which spe- . cifically provides:

(a) When issuing a citation for a traffic violation, a police officer shall issue the citation to a motorist who possesses a driver’s license issued by a party jurisdiction and shall not, subject to the exceptions noted in paragraph

(b) of this article, require the motorist to post collateral to secure appearance, if the officer receives the motorist’s personal recognizance that he or she will comply with the terms of the citation.

Id. § 703.002 art. 111(a). The only exception to this mandatory procedure involves situations where Texas law requires the police to arrest for a particular traffic violation. Id. § 703.002 art. 111(b). It would appear that a seat belt violation is not such an offense and that Maryland is a "party jurisdiction" to the NVC.

6 . Castro disputes that the decision to arrest was made prior to his refusal to allow Nettles to search the Suburban.

7 . The government maintains that Gomez was not placed under arrest at this time. Rather, she was transported to the Sheriff’s Department so that she could use the restroom.

8 . Vicencio is not a party to this appeal.

9 . United States v. Chavez-Villarreal, 3 F.3d 124 (5th Cir.1993).

10 . Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

11 . Opperman, 428 U.S. at 369, 96 S.Ct. at 3097.

12 . Bertine, 479 U.S. at 374 n. 6, 107 S.Ct. at 742 n. 6 ("Our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria.”).

13 . Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990).

14 . Id. at 3-5, 110 S.Ct. at 1635.

15 . A pretexlual traffic stop does not violate the fourth amendment. See Whren v. United States, — U.S. —, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

16 . As discussed supra in footnote 5, the legality of this arrest remains to be determined.