U.S. v. Gastiaburo

• Decision Date: 08 February 1994
• Docket Number: No. 92-5513,92-5513
• Citation: 16 F.3d 582
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph GASTIABURO, a/k/a Joe Gastiaburo, a/k/a Joseph Gastiburo, a/k/a Joseph Menendez, a/k/a Joseph Gastibury, a/k/a Robert Julio Gastiaburo, a/k/a Joseph Mendez, a/k/a Joseph Rodriguez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 582

16 F.3d 582

UNITED STATES of America, Plaintiff-Appellee, v. Joseph GASTIABURO, a/k/a Joe Gastiaburo, a/k/a Joseph

Gastiburo, a/k/a Joseph Menendez, a/k/a Joseph Gastibury,

a/k/a Robert Julio Gastiaburo, a/k/a Joseph Mendez, a/k/a

Joseph Rodriguez, Defendant-Appellant.

No. 92-5513.

United States Court of Appeals,

Fourth Circuit.

Argued Oct. 28, 1993.

Decided Feb. 8, 1994.

ARGUED: Fred Warren Bennett, Baltimore, Maryland, for Appellant. Russel N. Jacobson, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF: Kenneth E. Melson, United States Attorney, Marcus J. Davis, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before MURNAGHAN and NIEMEYER, Circuit Judges, and YOUNG, Senior U.S. District Judge for the District of Maryland, sitting by designation.

OPINION

MURNAGHAN, Circuit Judge:

After pulling over defendant-appellant, Joseph Gastiaburo, for a routine traffic stop, a Virginia State Trooper conducted a warrantless consent search of Gastiaburo's car. The search produced $10,000 cash, drug paraphernalia, and several grams of cocaine base ("crack cocaine"). The state police arrested Gastiaburo and impounded his car.

Five weeks later, after receiving a tip from an acquaintance of Gastiaburo, the police conducted a warrantless search of a hidden compartment in the car's dashboard and seized a loaded semiautomatic pistol and a much larger quantity of crack cocaine. The district court denied Gastiaburo's motion to suppress the evidence seized during the latter search.

At trial under an indictment charging (a) possession of drugs with intent to distribute, (b) carrying a firearm during and in relation to a drug trafficking crime, and (c) possession of a firearm by a convicted felon, the government put a law enforcement officer on the stand as an expert on drug trafficking practices and techniques. Over and beyond direct and cross-examination, the district judge asked the government's expert several questions; later, he asked the defense's sole witness several questions, as well. The jury convicted Gastiaburo on all counts, and the district judge sentenced him to 322 months imprisonment. He has appealed.

I. The Facts

At midday on October 8, 1991, Joseph Gastiaburo and a passenger, Dina Viola, were heading southbound on Interstate 95. Virginia State Police Trooper Mark Cosslett pulled Gastiaburo over for reckless driving. Adhering to state police procedures for a routine traffic stop, Cosslett asked Gastiaburo for his license and registration and also asked if he was transporting any drugs or weapons. Gastiaburo replied that he was not, and asked Cosslett whether he would like to take a look in the vehicle. Cosslett replied, "You don't mind if I take a look through your vehicle?" Gastiaburo answered, "No, go ahead." Cosslett reiterated his request and explicitly confirmed that Gastiaburo had no objections to a search of both the vehicle and any containers therein.

Following those repeated consents to a search, Cosslett placed Gastiaburo in the police cruiser, wrote out a traffic citation, and waited for a backup officer. After the backup arrived, Gastiaburo was again asked for permission to search the vehicle, including any containers, and he again consented. With Gastiaburo sitting on the interstate guardrail adjacent to the car, Cosslett commenced his search. The search produced, among other things, a set of hand scales, rolling papers, razor blades, a knife with a retractable blade, a large number of small plastic baggies, an address book with various names and financial notations, a paging device or "beeper," $10,000 in cash (folded into $100 increments), a box of .25 caliber ammunition, and a black leather zippered pouch containing twenty-one small zip-locked plastic baggies, each containing about one-fifth of a gram of a rock-like substance that was subsequently determined to be crack cocaine.

The backup officer arrested Gastiaburo and drove him to a nearby detention center. His car was seized for forfeiture by the Commonwealth of Virginia and removed to an impoundment lot at the regional State Police headquarters, where it was secured by parking state vehicles around it. The next morning an inventory search of the impounded car produced no additional contraband.

On November 15, 1991, Cosslett and Viola, Gastiaburo's passenger at the time of arrest met at the Prince William County Courthouse. Viola inquired whether he had found the gun. When Cosslett said that he had not, Viola told him that there was a hidden compartment located behind the radio in the console of Gastiaburo's car, and that the compartment contained drugs, money, and a handgun.

Cosslett promptly went to the impound lot and, without obtaining a warrant, searched for and located the hidden compartment. He found and seized a loaded, .25 caliber semiautomatic pistol and, wrapped in aluminum foil and then in brown paper lunch bags, a lump of rock-like substance that was subsequently determined to be a 24-gram "rock" of crack cocaine.

A grand jury of the United States District Court for the Eastern District of Virginia returned the above-mentioned three-count indictment against Gastiaburo. On April 3, 1992, a suppression hearing took place. After listening to conflicting testimony from Gastiaburo and Cosslett, the district judge resolved the credibility conflicts in Cosslett's favor and denied all of Gastiaburo's motions, including a motion to suppress the gun and the crack cocaine that Cosslett had seized during his warrantless search of the impounded car on November 15, 1991.

On April 22, 1992, Gastiaburo was tried before a jury in Judge Ellis's courtroom. The government called Cosslett, who gave testimony substantially similar to his earlier testimony at the suppression hearing. The government also called Sergeant Floyd Johnston of the U.S. Park Police as an expert in the field of drug trafficking practices and techniques. Among other things, Johnston examined the various government exhibits that had been seized from Gastiaburo's car and testified that they were generally consistent with crack cocaine distribution, rather than with mere personal use of the drug. In response to questions from the bench, Johnston also testified about the quantities of crack cocaine consumed by typical addicts.

Gastiaburo called only one witness, Charles J. Pucci, his brother-in-law. Pucci testified that Gastiaburo had visited him in New York City shortly before the arrest, and that he had given Gastiaburo $10,000 in loose cash to pay a debt to a family member in Florida. The court asked Pucci several questions about the cash, and also inquired about Pucci's occupation. Judge Ellis then asked whether Pucci had ever been convicted of a felony. Pucci responded, "I have not."

The jury returned guilty verdicts on all three counts. The district court imposed a sentence of 322 months imprisonment plus five years of supervised release, $10,000 forfeiture, and $150 in special assessments. Gastiaburo's appeal followed.

II. The Gun and Cocaine Seized on November 15, 1991

Gastiaburo has contended that the gun and the 24-gram rock of crack cocaine that the police seized from his car on November 15, 1991 should have been suppressed because they were obtained without a warrant, in violation of his Fourth Amendment rights. In response the government has argued that the district court's denial of Gastiaburo's motion to suppress should be affirmed on any of four grounds: (1) the evidence was seized during a valid consent search; (2) the evidence was seized during a valid inventory search; (3) the police had probable cause to believe the search would uncover contraband (i.e., the so-called "automobile exception" to the warrant requirement); or (4) the evidence was seized during a valid search of a vehicle subject to forfeiture. The third argument, based on the "automobile exception" to the warrant requirement, is clearly correct. Because we review such a mixed question of law and fact de novo, see, e.g., United States v. Moore, 817 F.2d 1105, 1106-08 (4th Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 456, 98 L.Ed.2d 396 (1987), the district court's decision not to suppress the evidence seized on November 15, 1991 should be affirmed.

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV. Searches conducted without a warrant issued by a judge or magistrate upon probable cause "are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." California v. Acevedo, 500 U.S. 565, ----, ----, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991) (citations and internal quotation marks omitted); see also United States v. Turner, 933 F.2d 240, 244 (4th Cir.1991). At least since 1925, when the Supreme Court handed down its decision in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the federal judiciary has recognized an "automobile exception" to the warrant requirement: it may be reasonable and therefore constitutional to search a movable vehicle without a warrant, even though it would be unreasonable and unconstitutional to conduct a similar search of a home, store, or other fixed piece of property. See id. at 153, 158-59, 45 S.Ct. at 285, 287.

The Supreme Court delivered its most recent exposition on the "automobile exception" in California v. Acevedo, supra. The Acevedo Court held that "[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained." 111 S.Ct. at 1991. "[T]he scope of a warrantless search of an automobile is 'no narrower--and no broader--than the scope of a search authorized by a warrant supported by probable cause.' " United States v. $29,000--U.S. Currency, 745 F.2d 853, 855 (4th Cir.1984)...