USA v. Ibarra-Sanchez, IBARRA-SANCHE

• Citation: 199 F.3d 753
• Decision Date: 29 December 1999
• Docket Number: N,No. 98-50999,AGUERO-MIRANDA,D,IBARRA-SANCHE,98-50999
• Parties: (5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTONIOefendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL ANGEL; RICARDO VASQUEZ, Defendants-Appellants. o. 98-51044
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 753

199 F.3d 753 (5th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTONIO IBARRA-SANCHEZ, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL ANGEL AGUERO-MIRANDA; RICARDO VASQUEZ, Defendants-Appellants.

No. 98-50999, No. 98-51044

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

December 29, 1999

[Copyrighted Material Omitted] Appeals from the United States District Court for the Western District of Texas. EP-98-CR-88-1-H. Harry Lee Hudspeth, Chief Judge.

Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants Miguel Angel Aguero-Miranda (Aguero-Miranda), Ricardo Vasquez (Vasquez), and Antonio Ibarra-Sanchez (Ibarra-Sanchez) were indicted for conspiracy to possess marihuana with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 846. The appellants moved to suppress approximately 344 pounds of marihuana seized on January 6, 1998 from the van in which they were riding, as well as inculpatory statements that they made to law enforcement officials after their arrest. Following an evidentiary hearing, the district court denied the motion. The appellants thereafter were convicted on their pleas of guilty and were subsequently sentenced. The guilty pleas each reserved the right to appeal the denial of the motion to suppress. Fed. R. Crim Proc. 11 (a)(2). The appellants now appeal, challenging only the denial of the motion. We affirm.

Facts and Proceedings Below

Between August, 1997, and January, 1998, special agents of the Drug Enforcement Agency (DEA), led by Special Agent Steve Mattas (Mattas), conducted intermittent surveillance of a residence located at 1393 Copper Ridge in El Paso, Texas. This residence was the home of appellant Aguero-Miranda, his wife, Jacqueline Aguero, and her children. Based on their observations over this five-month period, Mattas and the other agents suspected that the Copper Ridge residence housed an on-going illicit drug operation.

From their surveillance of the trash at the Copper Ridge residence, Mattas and the DEA agents discovered phone records revealing that multiple calls had been made to phone numbers associated with other DEA investigations. Their searches also revealed several five-pound zip-lock baggies covered with duct tape, a practice which in Mattas's experience was consistent with the transportation of drugs and currency. A police dog trained to detect the presence of currency positively identified the baggies as having contained currency. Other suspicious trash findings included plane tickets to Hawaii and Mexico, bills that were all in Mrs. Aguero's name, and bank statements indicating large monthly deposits, even though the residents at Copper Ridge had no discernable employment.

The trash searches also revealed utility bills and mortgage statements for a residence on Rainbow Ridge, located directly behind the Copper Ridge home. His attention drawn to the Rainbow Ridge residence, Mattas noted that it was unkempt and run-down, which was unusual for that affluent part of El Paso. No one appeared to be living there on any consistent basis, and the agents observed heavy foot and vehicle traffic between the two residences. From these observations, Mattas surmised that the Rainbow Ridge residence was in all likelihood a "stash house," that is, an unoccupied house used for the storage of drugs.

In the course of his surveillance of the Copper Ridge and Rainbow Ridge residences, Mattas observed approximately six vehicles, including the beige van at issue in this appeal, coming and going from the houses at various times. Some of the vehicles had temporary license tags, some had tags that were associated with other DEA investigations, and some would remain parked in front of the houses, virtually abandoned, for weeks at a time. At the suppression hearing, Mattas testified that this large number of vehicles was unusual even for an affluent area-and especially unusual when the residents did not appear to work. Mattas concluded that this activity was consistent with drug trafficking. He also identified one of the most frequent visitors to the Copper Ridge house as Gilberto Villanueava (Villanueava), whom the agents later (and before January, 1998) determined was wanted for questioning in connection with the abduction of a DEA agent in Mexico in 1995, as well as another DEA investigation. According to Mattas, Villanueava often shuttled back and forth between the Copper Ridge and Rainbow Ridge residences, and unlike most of the other visitors, was actually allowed inside the Copper Ridge residence.

On the evening of January 6, 1998, the beige van made its first appearance in over a month. As the van pulled into the driveway of the Rainbow Ridge residence, Mattas observed the motion-sensitive light above the driveway go on and at least two individuals exit the van and enter the residence. A minute or two later, the van left the Rainbow Ridge residence; after approximately thirty minutes, it returned. Mattas then saw three men loading several large objects, which appeared to be duffel bags, into the van. He testified that sometime during the course of these events the motion-sensitive light had been deactivated, and that the loading of the van took place in the dark. Mattas found it suspicious that these individuals would load the van in the dark "when the average person would have wanted to have light out there so they could see what they were doing."

Mattas followed the van as it departed from Rainbow Ridge. Believing that the van was loaded with drugs, and that he would need assistance in stopping it, Mattas contacted by mobile phone another DEA agent and the El Paso Police Department (EPPD).¹ He instructed the EPPD dispatcher to relay a message to EPPD officers that a DEA agent needed assistance in stopping the van. Mattas also requested the dispatcher to tell the officers to form their own reasonable suspicion before stopping the van. The dispatcher failed to communicate this last instruction, however, and instead merely issued a radio bulletin that a DEA agent had requested assistance in stopping the beige van because it was possibly transporting drugs or weapons.

After hearing the bulletin, EPPD Patrolman Jose Guerra (Guerra) observed the van heading east on Interstate 10. Guerra activated his emergency lights and began his pursuit. While being followed on the freeway by Guerra, the van passed an EPPD Special Weapons and Tactics (SWAT) team on its way home from a training session at the police academy. Aware of the dispatcher's message, the SWAT team joined in the chase and aided Guerra in making a "felony stop" of the van at an exit off the highway.² The SWAT team, Guerra, and Guerra's partner all approached the stopped van with pistols and shotguns drawn. As they drew near, but before they looked inside it, the officers could smell a strong odor of marihuana emanating from within the van.³ The officers ordered the three occupants-driver appellant Ibarra-Sanchez, front seat passenger appellant Aguero-Miranda, and back seat passenger appellant Vasquez-to exit the van and kneel down on the ground. Guerra handcuffed the men and with the help of other officers placed them in the back seats of three separate patrol cars. The officers then conducted a "protective sweep" of the van for other occupants or weapons, and discovered three duffel bags, as well as some smaller bags, which were later determined to contain approximately 344 pounds of marihuana.

At some point during this time period, Mattas arrived and identified himself as the agent who had requested the stop. The officers informed Mattas that they had conducted the protective sweep of the van and had discovered a large amount of marihuana. Mattas later testified that he could smell the marihuana when he was five or ten feet away from the van. After conferring with the EPPD officers, Mattas seized the marihuana. The appellants were then formally arrested and taken to EPPD headquarters, where Aguero-Miranda and Vasquez made inculpatory statements to EPPD officers. Ibarra-Sanchez made no post-arrest statements.

The appellants were charged in a one-count indictment with conspiracy to possess marihuana with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 846. Arguing that the initial "felony stop" constituted an arrest and search for which there was no probable cause, the appellants filed a motion to suppress the marihuana and statements. The district court conducted a suppression hearing on June 12, 1998, and denied the motion on July 7, 1998 in a memorandum order. The appellants then pleaded guilty to the indictment, reserving the right to appeal the denial of the motion. On October 16, 1998, the district court sentenced Aguero-Miranda to sixty months of imprisonment, followed by a four year period of supervised release; Vasquez to thirty-seven months of imprisonment and three years of supervised release; and Ibarra-Sanchez to thirty months of imprisonment and three years of supervised release. The appellants now appeal, complaining only of the denial of their suppression motion.⁴

Discussion

The district court found that in conducting the "felony stop," the EPPD officers "effected a warrantless arrest of the van's occupants and then proceeded to search it," all without probable cause. The court denied the motion, however, on the basis of the "good faith" exception to the exclusionary rule of the Fourth Amendment. See United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); United States v. De Leon-Reyna, 930 F.2d 396, 400 (5th Cir. 1991) (en banc; per curiam). According to the district court's interpretation of the events at issue, the EPPD officers reasonably relied on the dispatcher's erroneous relay of Mattas's request, and thus executed the "felony stop" of the van in the "good faith," though erroneous, belief that they were authorized to do so. We do not...