United States v. Guillermo Rhodes Cruz

559 F.2d 300, 1977 U.S. App. LEXIS 11546
CourtCourt of Appeals for the Fifth Circuit
DecidedSeptember 16, 1977
Docket76-3527
StatusPublished
Cited by4 cases

This text of 559 F.2d 300 (United States v. Guillermo Rhodes Cruz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Guillermo Rhodes Cruz, 559 F.2d 300, 1977 U.S. App. LEXIS 11546 (5th Cir. 1977).

Opinions

GEE, Circuit Judge:

Appellant was convicted by a jury of conspiracy to transport illegal aliens and with three counts of transporting illegal aliens in violation of 8 U.S.C. §§ 1324(a), 1324(a)(2), and 18 U.S.C. § 371. He was sentenced to four concurrent two-year terms.1 On appeal, he complains of the district court’s failure to suppress all testimony of and about the illegal aliens as fruit of the poisonous tree because the initial stop of his car was illegal and the subsequent arrest was made without probable cause. We disagree that appellant’s fourth amendment rights were violated, but even if they had been we would be unable to extend the fruit-of-the-poisonous-tree doctrine to reach the testimony appellant seeks to exclude.

On May 18, 1976, a Texas deputy sheriff driving west on State Highway 359 passed a 1966 Pontiac travelling in the same direction on the shoulder of the highway with its right-turn indicator flashing. The deputy topped the rise of an overpass approaching Laredo, but the Pontiac never came over the hill. Deputy Joseph Muldraw testified that he turned around initially to see if he could be of assistance. When he came back over the hill, he observed the Pontiac heading east. Muldraw concluded that the driver had made an illegal U-turn — illegal because made in a no-passing zone.2 At that point he determined to stop the Pontiac to warn the driver of the violation. Deputy Muldraw was not in uniform and was not driving an official vehicle; he had to pursue the Pontiac some distance before his honking and pulling alongside the car convinced its driver to stop. Deputy Muldraw testified that prior to stopping, the Pontiac turned off State Highway 359 without signalling.

Deputy Muldraw asked appellant, the driver of the stopped car, to show him his driver’s license. Appellant complied. At this point Muldraw noticed the four passengers of apparent Mexican ancestry and asked to see their papers. The passenger in the front seat produced a temporary permit known as a green card which authorizes Mexican nationals to enter the United States and remain for 72-hour periods within a 25-mile zone along the border. The three passengers in the back seat apparently could not speak English and could not produce any papers. Deputy Muldraw loaded these passengers into his pickup and ordered appellant to follow in his car. He took them into Hebbronville and turned them over to the Immigration Service. At no time did Muldraw warn appellant of any traffic violation or issue any traffic citation.

Appellant moved to suppress “any testimony of witnesses illegally obtained, or any evidence of any statements or information secured by the Government as a result of the illegal arrest and interrogation of the defendant and/or his passengers at the time of arrest or anytime subsequent thereto.” He argues that the stop for the unobserved illegal U-turn was a mere pretext for inquiring into the citizenship of five persons who appeared to be of Mexican nationality. To be valid the initial stop must be authorized under state law and must not violate the United States Constitution. Texas authorizes peace officers to stop motorists who violate state highway regulations, Tex. Civ.Stat.Ann. art. 6701d § 153 (1977), but Texas courts have excluded evidence obtained upon the pretext of enforcing traffic laws. Willett v. State, 454 S.W.2d 398 (Tex.Cr.App.1970). The federal constitution requires reasonable suspicion based [302]*302on articulable facts before a roving Border Patrol officer may stop a vehicle to investigate; the scope of the inquiry must be related to the reason for the stop. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Appellant suggests that this part-time deputy was acting the part of a Border Patrol officer whose intent at all times was to inquire as to the nationality of the five Mexican-looking individuals in the Pontiac. Lacking reasonable suspicion to stop the vehicle, he relied on a traffic violation which he did not even observe as a pretext for stopping appellant’s car. Once the deputy approached the car he never mentioned the illegal U-turn but began to request citizenship papers of the four passengers. Appellant argues that a roving deputy sheriff must be held to the same standards as a roving Border Patrol officer and that this stop, made without reasonable suspicion, violated his fourth amendment rights. Appellant suggests that Deputy Muldraw again violated the fourth amendment when he relied on the wrinkled and dishevelled appearance of the passengers to inquire about their citizenship and then to arrest them. Alleging this twofold violation of the fourth amendment, appellant urged the trial court to suppress all information, observation and testimony flowing from the incident as fruit of the doubly poisonous tree.

If the initial stop was legal, we cannot agree that it was a constitutional violation for Deputy Muldraw to request that the passengers, who aroused his suspicions by their manner of dress and their grooming,3 produce identification. A peace officer has the duty as well as the right to investigate suspicious circumstances. United States v. Faulkner, 488 F.2d 328, 330 (5th Cir.), cert. denied, 417 U.S. 914, 94 S.Ct. 2614, 41 L.Ed.2d 218 (1974). Furthermore, if any rights had been violated by the inquiry, they would have been the constitutional rights of the passengers, and the appellant could not urge the violation of their rights to exclude the introduction of subsequent testimony damaging to him. United States v. Allen, 537 F.2d 1387, 1390 (5th Cir. 1976), citing Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

We are more troubled by appellant’s assertion that Deputy Muldraw used the unobserved illegal U-turn as a ruse to stop the vehicle for a citizenship check of its occupants.4 Muldraw’s “shifting” motives for stopping the Pontiac lend credence to appellant’s theory. The deputy testified that initially he returned to offer assistance to the car which never came over the hill; then, discovering that the car was not in need of assistance, he concluded that it must have reversed its direction in a no-passing zone and should be stopped and “warned” of this traffic violation;5 finally, [303]*303he testified that as he pursued the car the driver turned left off State Highway 359 without signalling. The deputy’s failure to mention any illegal turn after stopping appellant’s car adds further support to the assertion that Muldraw’s overriding concern was to investigate the citizenship of these five people of Mexican ancestry, not to enforce the state highway regulations.

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Related

United States v. Guillermo Rhodes Cruz
581 F.2d 535 (Fifth Circuit, 1978)

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Bluebook (online)
559 F.2d 300, 1977 U.S. App. LEXIS 11546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-guillermo-rhodes-cruz-ca5-1977.