United States v. Jesus Ybarra Villarreal and Abundio Hernandez Martinez

565 F.2d 932, 1978 U.S. App. LEXIS 13139

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 9, 1978
• Docket: 77-5079
• Status: Published

Opinions

GEWIN, Circuit Judge:

Appellants Jesus Ybarra Villarreal and Abundio Martinez were tried before the court and found guilty of conspiracy to possess marijuana and heroin with the in-tent to distribute.¹ On appeal Villarreal and Martinez argue that the trial court erred in refusing to suppress evidence obtained as the result of a warrantless search. Appellants also challenge the sufficiency of the evidence to sustain their convictions. We affirm.

On the morning of February 5, 1976, just before 7:00 a.m. sensor devices along the Texas-Mexico border at Marfa indicated that two vehicles, coming from an unpa-trolled border area, were traveling together north on state highway 118 towards Alpine, Texas. This information was radioed to Border Patrol Agent Wilson² at Alpine, who ordered Patrol Officers Newberry and Whittington to intercept the vehicles. Agent Wilson followed the two officers south on highway 118 and stationed himself a short distance south of their checkpoint on a ranch road running parallel to that highway.

About 7:15 a. m. a pickup truck equipped with CB radio antennas approached the border patrol checkpoint. The agents saw the passenger duck below the dashboard for a moment and noticed that both the driver and passenger appeared to be of Mexican ancestry. The truck stopped at the checkpoint and the occupants were questioned concerning their citizenship. At this time Officer Newberry noticed an operational CB radio on the floor of the vehicle and a microphone on the seat.

Agent Wilson arrived at the checkpoint and directed the officers to travel south and locate the other vehicle indicated by the sensors. Agent Wilson remained behind to question the occupants of the truck. While questioning the men Wilson noticed a pistol case on the seat. A subsequent search of the vehicle revealed a .22 caliber pistol in the glove compartment. Wilson radioed this information to the other officers.

About 3 miles south of the checkpoint, Officers Whittington and Newberry, who had received Wilson’s message enroute, discovered a Chevrolet Nova with a CB antenna parked at a rest stop. The car was parked as if heading south, but tracks in the road indicated that it had made a U-turn in that direction. The driver’s door was open, and Agent Newberry saw the occupant, Torres, bend down as if he was placing something under the car. The officers parked their vehicle behind the Chevrolet. Agent Newberry got out and walked towards the ear while Whittington provided cover.

Newberry asked the driver to step out of the vehicle. Torres got out and the agent patted him down and questioned him concerning his residency and citizenship. New-berry then looked inside the car and smelled what he recognized to be marijuana. He asked Torres to open the trunk; Torres removed the keys from the ignition and complied with the officer’s request. In the trunk were approximately 105 pounds of marijuana. Further search revealed a container of heroin beneath the car.

The agents arrested Torres for possession of marijuana and heroin and radioed this information to Agent Wilson. Wilson then placed Villarreal and Martinez under arrest. It was later established at trial that the Nova had been loaned to Martinez by Danny Johnson, a fellow employee.

The Border Patrol also obtained evidence that Villarreal and Martinez had been at the Rio Grande River on the Texas-Mexico border on the morning of their arrest. On the river bank an agent well experienced in tracking found vehicle tracks, footprints, and horsetracks. Two sets of footprints led from the vehicle to the river’s edge. A set of horsetracks came from the water to the area where the footprints stopped. There was evidence that there was an imprint in the wet dirt indicating that an object had been placed there. An additional set of footprints indicated that someone had dismounted from the horse. The tracks then led from the river’s edge to the vehicle. The horsetracks led back to the river. The agent determined that two sets of footprints had been made by Villarreal and .Martinez and that the tire tracks had been made by the Chevrolet Nova, all on the morning of February 5, 1976.

I. The Legality of the Stop

This case must be decided in light of two recent decisions by this court involving similar facts. United States v. Frisbie, 550 F.2d 335 (1977) and United States v. Barnard, 553 F.2d 389 (1977). In Frisbie³ the stop was made on the same highway and at approximately the same hour in the morning as the stop of Villarreal and Martinez. The officers were informed that sensor devices indicated that three vehicles were traveling north on highway 118. They stopped the first two vehicles to determine the citizenship of their occupants and allowed them to proceed. When the third vehicle approached an officer signalled it to stop. As it attempted to slowdown, the officer noticed that it was riding low and that the driver was having difficulty in stopping, leading the officer to believe that it was heavily loaded. The vehicle was subsequently found to contain marijuana. The court held that observation of the vehicle or its occupants made after the officer had signalled it to stop could be assigned no weight in a determination of the legality of the stop. Thus, the information gained by the sensor devices, even in conjunction with such factors as the characteristics of the area and the time of day, was held to be insufficient to give rise to reasonable suspicion that the vehicles were carrying illegal aliens. The court in particular noted that highway 118 was located near the westernly entrance to Big Bend National Park, an area visited by thousands of tourists a year, and that the sanctioning of stops on the basis of the slight evidence presented in Frisbie would subject innocent people to unreasonable detention merely because they happened to be on the road at a suspect hour.

In Barnard no sensor devices were involved. There a border patrolman was passed one morning by two cars traveling about a mile apart. The first to pass him was an MG with a citizen’s band (CB) radio antenna. The driver appeared to be speaking into a microphone as the vehicle passed. The MG was followed by a Mercury with a CB antenna. Each vehicle had the same three-letter prefix, FBU, on its license plates, indicating that they were registered in the same county, a county other than the one through which they were traveling. The. driver of the Mercury appeared to be nervous and the rear of the vehicle appeared to be riding low. These facts aroused the officer’s suspicions that the Mercury might be transporting illegal aliens in its trunk. He followed the Mercury which varied its speed from 35 to 60 miles per hour. The road was sufficiently straight for the officer to see that the MG in the lead altered its speed to maintain a constant distance between itself and the Mercury. The officer, after following the vehicles for 10 or 15 miles, stopped the Mercury. While questioning the driver at the rear of the car the officer smelled marijuana. When the trunk was opened it was found to contain 84 pounds of the substance.

In holding that the stop was legal the court stated that the reasonable suspicion equation of United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), was satisfied by the fact that the vehicle appeared to be heavily loaded, that its driver glanced nervously at the officer, drove erratically while being followed, was from another county, and was heading away from the border in an area generally devoid of significant tourist or business activity. The Court noted, however, that its decision to uphold the stop was facilitated by an additional factor — the “lead car-load car” smuggling technique, where one car operates as the scout car for the vehicle following with the contraband. This modus operandi was indicated in Barnard by the fact that two vehicles with CB antennas and non-resident license plates, both apparently from the same county, were traveling north in close proximity on a lonely road 20 miles from the border.

The instant case contains an amalgam of factors present in either or both Frisbie and Barnard. Frisbie’s significance to appellants’ case lies in the fact that both stops were made on the same highway, a highway with substantial tourist traffic. Aside from this fact the cases have little similarity. The stop in Frisbie was made largely upon the basis that sensors at an early morning hour indicated that three cars were traveling north from the border. On this evidence alone the officers indiscriminately stopped each vehicle until they obtained results.

In the appellants’ case, not only did sensors indicate two vehicles traveling north from the border in close proximity for approximately an hour, but the officers, before stopping the lead vehicle, observed that it had CB antennas, that its occupants appeared to be of Mexican descent, and that the passenger ducked beneath the dash as the vehicle approached the Border Patrol car. From this information, we conclude that the officers could have reasonably inferred that the vehicle initially stopped was the scout car for a second vehicle, indicated by the sensors, engaged in the transportation of illegal aliens.⁴ United States v. Barnard, 553 F.2d at 392. The stop of this vehicle to determine whether it was involved in the transportation of illegal aliens was therefore proper under the circumstances. Although the fact that the stop was made on a highway frequented by tourists is one factor for the court to consider in determining whether such a stop was legal, it is not controlling. Just as proximity to an international border does not provide law enforcement officers with carte blanche to stop and question travelers at will, United States v. Brignoni-Ponce, 422 U.S. 873, 882-83, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607, 617 (1975), so highways favored by tourists are not thereby transformed into safe conduits for traffickers in contraband. Reasonable suspicion for the stop must be determined in light of the particular facts and circumstances of each case.

The detention of the second vehicle was also proper.⁵ The officers knew that two vehicles had been traveling together for more than an hour, that the second vehicle had not reached their position, and that the first vehicle contained a CB radio which could have been used to warn the trailing vehicle of the officers’ presence. Agents Newberry and Whittington then proceeded south for approximately three miles where they came upon a Chevrolet Nova with a CB antenna parked at a rest stop. The car was facing south and tracks in the highway indicated that the vehicle had made a U-turn from north to south. The driver’s door was open and as the agents drove towards the vehicle, Agent Newberry noticed that the driver bent over and placed something under the car. On the basis of these factors the officers had reasonable suspicion to stop the second vehicle.

II. The Search

The odor of marijuana detected by Agent Newberry as emanating from the car furnished him with probable cause to search the trunk. United States v. Barnard, 553 F.2d 389 (5th Cir. 1977); United States v. Andrade, 545 F.2d 1032 (5th Cir. 1977); United States v. McCrary, 543 F.2d 554, 555 (5th Cir. 1976); United States v. Diaz, 541 F.2d 1165, 1166 (5th Cir. 1976). Probable cause for the search under the vehicle which revealed the heroin was supplied both by the discovery of the marijuana and Torres’ movements beneath the car at the approach of the officers. The ,discovery of the contraband provided probable cause for the subsequent arrest of Villarreal and Martinez.

Appellants raise the issue of whether Torres consented to the opening of the trunk. The trial judge found that Torres’ consent was “freely and voluntarily given.” Looking at the circumstances of this case we cannot say that Torres’ consent to open the trunk was not voluntarily given. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Torres made no objection to opening the trunk nor is there any evidence that the officers coerced him into doing so.

III. Sufficiency of the Evidence

Appellants contend that the amount of heroin discovered beneath the car driven by Torres was insufficient to support their convictions of conspiracy to distribute heroin. The street value of the 75.5 grams of 49% heroin seized was substantial.⁶ There was evidence that the heroin would be sufficient to supply three addicts for three months. Considering this evidence in a light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 80 L.Ed. 680 (1942), we find that the evidence is sufficient to support the convictions for conspiracy to distribute heroin.

Appellant Villarreal also argues that there was insufficient evidence to sustain his conviction for conspiracy to possess with intent to distribute marijuana. A conspiracy may be found “[i]f the totality of the evidence is sufficient to show a concert of action, all parties working together understandingly, with a single design for the accomplishment of a common purpose . ” United States v. Prout, 526 F.2d 380, 385 (5th Cir. 1976), quoted in Barnard, supra at 393.

The Glasser standard must be applied in examining the sufficiency of the evidence. As discussed above there is substantial evidence connecting Villarreal as an active and knowing participant in a plan to possess and distribute marijuana.

Sensors indicated that the pickup truck which Villarreal was driving and the Chevrolet Nova in which the contraband was being transported had travelled together from the border for over an hour. Both vehicles were equipped with citizen band radios. When the pickup approached the checkpoint the passenger ducked beneath the dashboard in a manner which suggested that he was making furtive communications with the trailing vehicle. Villarreal’s connection with the Nova was also supported by evidence which showed that the pickup truck’s passenger, Mr. Martinez, had borrowed the Nova from one Danny Johnson.

A more direct connection between Villarreal and the conspiracy was established by evidence demonstrating the presence of Villarreal’s footprints along with those of Martinez and the tire tracks of the vehicle at the riverbank where the delivery of the marijuana was shown to have taken place. The evidence further tended to show that Villarreal and Martinez received the contraband, loaded the Nova, left the delivery site and afterwards transferred to the pickup truck leaving Torres to drive the Nova. Thus, Villarreal, in aiding in the receipt of the marijuana and facilitating its transportation, acted in a manner which unmistakably forwarded the purpose of the conspiracy. United States v. Alvarez, 548 F.2d 542, 544 (5th Cir. 1977).

Villarreal’s knowing participation in the conspiracy is shown by several factors, foremost of which is the manner in which his actions conformed to the lead car-load car modus operandi, delineated in Barnard. See Barnard, supra, at 393. In Barnard guilty knowledge was also found by the fact that three men were traveling in two vehicles when one would have sufficed. Finally, Villarreal’s knowledge of the conspiracy was established by evidence which indicated that Villarreal switched from the vehicle in which the contraband was being transported to the scout vehicle. The evidence therefore supports the trial court’s conclusion that Villarreal was guilty of conspiring to possess marijuana with intent to distribute.

AFFIRMED.

1 . Co-defendant Daniel Torres was also indicted on the same counts and in addition on four counts of importation and possession of marijuana and heroin with the intent to distribute. Torres was found guilty on the conspiracy counts and for possession of heroin and marijuana with intent to distribute. Torres’ motion for judgment of acquittal was granted on the importation counts. He was sentenced under the Federal Youth Corrections Act and did not appeal his conviction.

2 . In his Findings of Fact pursuant to his order denying defendants’ motion to suppress, Judge Suttle found that after the radio transmission Agent Wilson was aware that:

(a) A sequential tripping of sensor devices on Ranch Road 170 and Highway 118 had occurred;

(b) The lapse of time between the tripping of different sensors indicated a rate of speed that could reasonably be attributed only to vehicular traffic.

(c) The order of signals indicated that:

1. Two vehicles were traveling east on Ranch Road 170 within seconds of each other;

2. Both vehicles began traveling north on State Highway 118 within seconds of each other;

3. Approximately one hour later two vehicles were traveling north on State Highway 118 approximately two minutes apart.

(d) There were numerous uncontrolled ports of entry connecting to Highway 118 and to Ranch Road 170. Presido was the only manned port of entry directly connected to those roads.

(e) The geography of the area created a substantial possibility that the vehicles tripping the sensors had come from an unpat-rolled river area.

(f) The area along the border was sparsely populated.

(g) Local traffic did not normally move along Ranch Road 170 and State Highway 118 in those early morning hours.

(h) Aliens and contraband substances were frequently transported toward Alpine on State Highway 118 primarily during the late evening and early morning hours.

3 . The trial judge in Frisbie also tried the instant case.

4 . In Brignoni-Ponce the Court stated that in deciding whether reasonable suspicion exists to stop a vehicle in a border area, “the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling.” Id. at 885, 95 S.Ct. at 2582, 45 L.Ed.2d at 619. Testimony in the instant case established that the officers involved in the instant case possessed considerable experience in this area. Officer Wilson had been a Border Patrolman on the United States-Mexico border since 1954. Officer Newberry testified that he had been stationed as a Border Patrolman at Alpine, Texas, for approximately six years. Officer Whit-tington testified that he had been a Border Patrolman for five and a half years. Officer Murphy, the agent who investigated the tracks on the riverbank stated that he had been with the Border Patrol for 16 years.

5 . Under the Fourth Amendment a stop “ . . does not mean a physical stop but rather a restraint of movement.” United States v. Robinson, 535 F.2d 881, 883 n.2 (5th Cir. 1976).

6 . One drug agent testified that the heroin had a street value of $25,200.00.