18 F.3d 845 (10th Cir. 1994), 93-2076, United States v. Eylicio-Montoya

Docket Nº:93-2076.
Citation:18 F.3d 845
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Tomasita EYLICIO-MONTOYA, Defendant-Appellee.
Case Date:March 01, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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18 F.3d 845 (10th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellant,

v.

Tomasita EYLICIO-MONTOYA, Defendant-Appellee.

No. 93-2076.

United States Court of Appeals, Tenth Circuit

March 1, 1994

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Joseph Douglas Wilson, Attorney, Department of Justice, Washington, D.C. (Don J. Svet, United States Attorney, and Tara C. Neda, Assistant United States Attorney, District of New Mexico, with him on the brief), for Plaintiff-Appellant.

Stephen P. McCue, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellee.

Before EBEL and McKAY, Circuit Judges, and SAFFELS, [*] Senior District Judge.

McKAY, Circuit Judge.

This is an interlocutory appeal by the United States from an order of the district court suppressing evidence in a criminal case. Interlocutory appeal is authorized under 18 U.S.C. Sec. 3731. Ms. Montoya was charged with possession with intent to distribute less than fifty kilograms of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(D). Ms. Montoya moved to suppress evidence of the marijuana found in the car in which she was riding. The district court granted the Motion to Suppress and the government appeals.

At the suppression hearing, United States Customs Agent Albert Vogrinec testified that in October 1992 he received a call from an informant with whom he had previously communicated, and who had provided reliable, substantiated information in the past. The informant stated that a woman named "Tammy" had been hired by a man named "Ruben" to transport one hundred pounds of marijuana from Grants, New Mexico to Denver, Colorado. The informant provided Agent Vogrinec with Tammy's address, although he or she did not know Tammy's last name. Agent Vogrinec testified that the informant told him that the information had come from Tammy herself. After checking on the address provided by the informant, Agent Vogrinec discovered that Ms. Tomasita Eylicio-Montoya lived at that residence. Agent Vogrinec testified that he was already familiar with Ms. Montoya, who had been arrested at least twice, and convicted at least once, for transporting marijuana.

Agent Vogrinec testified that, on October 31, 1992, the informant called again and told him that "Ruben" had arrived in Albuquerque from Mexico, and that the trip would take place within the next few days. The informant again telephoned on November 2, and said that the trip would begin on that day. The Customs Service then began surveillance of Ms. Montoya's residence. At that time, the agents conducting the surveillance observed a white Ford pickup truck with a Mexican license plate in front of Ms. Montoya's house. A license check revealed that the vehicle had entered the United States on October 31, which corresponded with the date the informant had indicated that "Ruben" had crossed the border from Mexico.

The Customs agents next observed a brown Datsun 210, which had also been described by the informant, arrive at the Montoya residence. Ms. Montoya and a man

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later identified as Ruben Rez removed the "drive-out sticker" from the brown Datsun and replaced it with a New Mexico license plate; this plate was traced to a white 1982 Mazda. Ms. Montoya and a woman later identified as Ms. Montoya's daughter-in-law left in the brown Datsun at the same time that the white pickup truck departed with two males, one of whom was later identified as Ruben Rez.

Agent Vogrinec testified that the two vehicles proceeded to a nearby gas station, where they were met by another male, later identified as Ms. Montoya's son, Joseph. They then departed and traveled to Grants, stopping at the Best Western Motel, where Ms. Montoya registered. In the early morning of November 3, two cars arrived at the motel and parked next to the pickup truck and the Datsun. During the early morning, the pickup truck and the Datsun left the motel several times. At six o'clock that morning, Ms. Montoya left the motel and walked to a nearby restaurant with several people not previously seen with her. Some time later the agents observed Ms. Montoya, her son, and her daughter-in-law get into a blue Dodge Colt hatchback. Ms. Montoya's son drove, Ms. Montoya was in the front passenger seat, and her daughter-in-law was in the rear seat. Ruben Rez and another hispanic male got into the pickup truck. Both vehicles left the motel and proceeded west on Interstate 40. 1

After following the two vehicles for a short distance, Agent Vogrinec requested police assistance in stopping the cars. Both cars were stopped, and Agent Vogrinec and a New Mexico police officer approached the blue Dodge with their firearms unholstered, although Agent Vogrinec testified that he kept his weapon behind his back. Agent Vogrinec further stated that, as he approached the vehicle, he observed through the hatchback window a large bundle of burlap bags, partially covered by a towel. He then asked the occupants of the blue Dodge, including Ms. Montoya, to exit the vehicle. The three occupants were ordered to lie on the ground, because there were no female officers present to conduct a pat-down search for weapons. Agent Vogrinec then obtained the keys from the ignition, opened the hatchback, and cut open the taped and cellophane-wrapped contents of the burlap bag, confirming that it contained marijuana. At that time, Agent Vogrinec informed Ms. Montoya, her son, and her daughter-in-law that they were under arrest. Agent Vogrinec testified that Joseph Eylicio told him that the car belonged to his father, Ms. Montoya's ex-husband.

At the conclusion of the...

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