289 F.3d 634 (9th Cir. 2002), 00-50607, U.S. v. Carranza

Docket Nº:00-50607
Citation:289 F.3d 634
Party Name:U.S. v. Carranza
Case Date:May 03, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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289 F.3d 634 (9th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward CARRANZA, Defendant-Appellant.

No. 00-50607.

United States Court of Appeals, Ninth Circuit

May 3, 2002

Argued Nov. 9, 2001.

Submitted April 10, 2002.

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Matthew C. Winter, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CR-00-00281-IEG.

Before: GOODWIN, WALLACE and THOMAS, Circuit Judges.

OPINION

GOODWIN, Circuit Judge.

Edward Carranza appeals his conviction for possession of marijuana with intent to distribute and importation of marijuana. He claims that the evidence was not sufficient to convict him of these charges. Carranza also assigns error to the denial of his motion to suppress his post-arrest statement; he argues that this statement was the fruit of an illegal arrest, because the arrest was not supported by probable cause. Finally, Carranza claims that the district court incorrectly instructed the jury with respect to the mens rea requirement, and sentenced him under unconstitutional statutes. We affirm.

FACTUAL BACKGROUND

Edward Carranza ("Carranza") was the sole passenger of a pickup truck being driven by Elias Muro-Robles ("Muro-Robles") across the border from Mexico into the United States. Customs inspectors at the Tecate Port of Entry stopped the vehicle.

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At the primary inspection point, Muro-Robles declared that he was a United States citizen and that he had driven down from Stockton, California to Tecate, Mexico to visit his girlfriend. Muro-Robles stated that he and Carranza were going to San Diego to pick up somebody. The primary customs inspector sent Muro-Robles and Carranza to the secondary inspection area for further investigation.

Customs Inspector Laura Wilson was working in the secondary inspection area when Muro-Robles drove the truck into her area. Muro-Robles explained to Inspector Wilson that, although he had told the primary inspector that he was a United States citizen, he was really a resident alien and had forgotten his I-155 card in Stockton. Inspector Wilson decided to refer Muro-Robles and Carranza to an immigration inspector. She escorted them to the Immigration Office.

While Carranza and Muro-Robles were in the Immigration Office, Inspector Wilson returned to the truck. During her conversation with Carranza and Muro-Robles, she had detected a strong odor of gasoline emanating from the vehicle. Inspector Wilson had often seen gas tanks being used to smuggle contraband. The odor of gasoline coming from the truck prompted her to request that a drug detector be brought to the truck. The dog alerted to the truck for the presence of drugs.

Inspector Wilson used a fiberscope--a device containing a small camera--to look inside the gas tank. She noticed welds and what appeared to be a metal box inside the gas tank. Inspector Wilson then had Muro-Robles and Carranza patted down for weapons. No weapons were found. Muro-Robles and Carranza waited inside the lobby of the secondary inspection office of the Tecate Port of Entry while a search of the gas tank was conducted.

After the gas tank was removed from the truck, the inspector found two metal containers inside the tank. She opened the containers and found six packages of green leafy material. A chemical test of the material was positive for marijuana. The marijuana weighed 92.6 pounds.

After the discovery and weighing of the marijuana, Inspector Wilson contacted Customs Special Agent John Wilmarth ("Agent Wilmarth"). Agent Wilmarth was at the San Ysidro Port of Entry when he received Inspector Wilson's telephone call around 9:30 p.m. He drove to Tecate, reviewed the evidence with Inspector Wilson, and then took over the investigation. He decided to interview Muro-Robles first.

Muro-Robles stated that he was to be paid $2,500 for driving the truck containing drugs into the United States from Mexico. He claimed not to know what type of drug was hidden in the truck or where in the vehicle it was hidden. He said that he was to deliver the drugs to Stockton, California. He stated that this was the third time he had smuggled drugs into the United States from Mexico. Muro-Robles told Agent Wilmarth that Carranza was aware that the truck contained drugs but was not to be paid for his role in the operation. Muro-Robles claimed that Carranza intended later to smuggle drugs for the same organization, and that this trip was a test run for Carranza.

After interviewing Muro-Robles, Agent Wilmarth transported Muro-Robles and Carranza to the San Ysidro Port of Entry, because the Tecate Port of Entry was closing for the night. Once at San Ysidro, Agent Wilmarth interviewed Carranza. He advised Carranza of his Miranda rights and Carranza said that he understood his

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rights. Carranza waived his Miranda rights in writing. No threats or promises were made to Carranza. He was not handcuffed.

Carranza said that he had been recruited by Muro-Robles to run loads of narcotics from Mexico to the United States. Carranza stated that he had driven a pickup truck--similar to the one in which the marijuana was found--from Stockton to San Diego earlier that same day. He had met Muro-Robles at the San Diego airport and the two men had then driven to what Carranza believed was Tecate, Mexico. Muro-Robles had left Carranza at a house that Carranza believed belonged to Muro-Robles' aunt. Muro-Robles had then driven alone (in the vehicle that Carranza had driven to San Diego) to another location and had exchanged that vehicle for a truck that was already loaded with marijuana. Muro-Robles had then returned to pick up Carranza and they drove together to the Tecate Port of Entry, where they were stopped.

Carranza admitted that he knew that the truck contained illegal drugs, but claimed that he did not know the type of drugs or the location in which the drugs were hidden. Carranza said that this trip was the first time he was involved in drug smuggling and that this trip was a test run for him, meaning that if he and Muro-Robles accomplished their mission of getting the drugs through the border to Stockton, then Carranza would begin driving loads for the same smuggling organization. Carranza said that he did not expect to be paid for making the test run.

PROCEDURAL HISTORY

The indictment charged Carranza with importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960; and possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). For both counts, the indictment charged Carranza with aiding and abetting, in violation of 18 U.S.C. § 2.

Pretrial, Carranza moved to suppress his post-arrest statements, on the grounds that he had been arrested without probable cause, and to dismiss the indictment, asserting that the drug laws were unconstitutional. The court denied both motions.

At the close of the evidence at trial, Carranza made a Rule 29 motion for a judgment of acquittal, based on the following three grounds: (1) the evidence was not sufficient to find Carranza guilty of any crime; (2) Carranza could not be guilty of importation, because he did not proceed beyond the inspection station into the United States; and (3) there was no evidence that Carranza knew the amount or type of the controlled substance, which Carranza believes is required under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied Carranza's motion.

At the jury instruction conference, Carranza submitted proposed instructions which would have told the jury that the government needed to prove that Carranza had knowledge of the type and quantity of controlled substance. The district court refused to give Carranza's proposed instructions. The court instructed that the government had to prove that Carranza knew that the truck contained a controlled substance, not that Carranza knew the type and quantity of the controlled substance.

The jury found Carranza guilty of importation of marijuana and possession of marijuana with intent to distribute. The district court sentenced Carranza to three years of probation.

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DISCUSSION

A. The existence of probable cause to arrest Carranza and the admissibility of his post-arrest confession

Carranza's principal point on appeal is that his warrantless arrest was made without probable cause; therefore, his post-arrest confession should have been suppressed as the fruit of an illegal arrest. Carranza argues that his "mere presence" as a passenger in the truck carrying drugs across the border is not enough to establish particularized probable cause that he was involved in the drug smuggling operation. He relies on Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), which held that a person's "mere propinquity" to criminal activity alone does not support probable cause to search or arrest him.

The district court did not specifically determine the time at which Carranza was arrested, but did find that there was probable cause to arrest Carranza as soon as the marijuana was discovered. After the discovery, Carranza was placed in a security office to await the arrival of the investigating customs agent; this is the earliest point at which Carranza could have been considered to be under arrest.

The standard for determining when Carranza was arrested is when ...

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