United States v. Victor Domingo Garcia, Ruben Barrera-Saenz and Adan Montolla Mungia

719 F.2d 108, 1983 U.S. App. LEXIS 15463

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 7, 1983
• Docket: 81-2115
• Status: Published

Opinions

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before BROWN, GOLDBERG and GEE, Circuit Judges.

GEE, Circuit Judge:

This matter concerns the validity of law enforcement actions taken over three years ago. Since we conclude that its proper disposition requires a remand to the trial court for consideration of issues, not reached in its former proceedings, that should be initially addressed by that court, we forbear delaying matters or trammeling that court’s judgment by long writing.

Following their apprehension by Texas state game wardens on the lookout for game law violators, the defendants were convicted of possessing and conspiring to distribute marihuana. On appeal they attacked the authority under state law of the game wardens to arrest them for non-game law crimes. Our opinion on appeal treated the warrantless search that discovered the drugs as one conducted incident to the arrests, concluded that power to make those arrests was not granted by Texas law,¹ determined that consequently defendants’ motions to suppress the drugs should have been granted, and reversed their convictions. 676 F.2d 1086 (5 Cir.1982) and, on rehearing, 695 F.2d 806. The Supreme Court has vacated our judgment, remanding for our further consideration of the appeal in the light of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Ross discusses the permissible scope of a search conducted without warrant under the “automobile exception” to the Fourth Amendment, concluding that it is the same as that which a magistrate might have authorized by warrant. It is concerned with constitutional questions of reasonableness of search only; in no way does it touch upon the power of state officers to make arrests. We can make nothing of the Court’s remand of this cause for reconsideration in Ross’s light unless it be an indication that our former disposition took it up by the wrong end; that our focus should be upon the constitutional question rather than upon the arresting state officers’ powers. Obedient, therefore, to our best perception of the Court’s intention, we in turn remand to the trial court for further proceedings.

In its former ruling denying motion to suppress the drugs, the trial court relied on the wardens’ supposed general authority to arrest. By subsequent decisions of the Texas courts, we now know that such authority is lacking. On remand, it should conduct such further proceedings and on such issues as it thinks appropriate, taking further evidence if necessary. Doubtless these will include whether, in the light of Ross, the discovery of the drugs is justifiable on some other ground than as the fruit of a search incident to arrest, as well as the possible applicability of the “automobile” or “good faith” exceptions. United States v. Mahoney, 712 F.2d 956 (5th Cir.1983); United States v. Williams, 622 F.2d 830 (5th Cir. 1980) (en banc), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981).

REMANDED.

1 . A vexed question at the time of our decision. After it, a panel of the Texas Court of Criminal Appeals held, to the contrary of it, that Texas game wardens did possess general arrest powers. Christopher v. State, 639 S.W.2d 932 (Tex.Cr.App.1982). Sitting en banc, however, that Court concluded, as had we, that they did not. 639 S.W.2d at 937.