Amador-Gonzalez v. United States

• Decision Date: 23 February 1968
• Docket Number: No. 23480.,23480.
• Parties: Eduardo AMADOR-GONZALEZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

391 F.2d 308 (1968)

Eduardo AMADOR-GONZALEZ, Appellant, v. UNITED STATES of America, Appellee.

No. 23480.

United States Court of Appeals Fifth Circuit.

January 10, 1968.

As Modified, Rehearing Denied February 23, 1968.

Joseph J. Rey, El Paso, Tex., for appellant.

Jamie C. Boyd, Asst. U. S. Atty., Mario J. Martinez, Asst. U. S. Atty., El Paso, Tex., for appellee.

Before WISDOM, COLEMAN and GODBOLD, Circuit Judges.

WISDOM, Circuit Judge:

The defendant, Eduardo Amador-Gonzalez, was convicted under a two-count indictment charging the unlawful importation and the knowing concealment of narcotics in violation of 21 U.S.C. § 174.¹ On this appeal, he raises issues regarding the admissibility in evidence of a quantity of heroin taken from his car following his arrest by an El Paso police officer. He charges that the heroin was found as the result of an unlawful search and seizure. He also challenges the admissibility of an oral confession made to federal and state officers shortly after his arrest. The defendant's counsel made a timely motion to suppress these items. After a hearing, the court denied the motion. Counsel renewed the objection when the items were offered at trial. Again the court denied the motion. We find that the drugs were seized from the defendant in violation of the protection the Fourth Amendment affords against unreasonable searches and seizures.² The confession was a fruit of that unlawful search. Both the drugs and the confession are therefore inadmissible. We reverse the judgment of conviction.

I.

The events leading up to the arrest of the defendant and the search of his car began late in the afternoon of September 14, 1965. At that time, two detectives from the Narcotics Division of the El Paso Police Department observed the Tartaglia brothers, known narcotics traffickers from Albuquerque, New Mexico, parking their car in a lot near the Santa Fe International Bridge. This bridge connects El Paso, Texas, and Juarez, Mexico. The detectives stopped the Tartaglias, whom they recognized, and questioned them. The officers learned that the Tartaglias intended to walk across the bridge and that they had $170 in cash between them. At the Customs House on the bridge they registered as narcotics violators and then crossed into Mexico.

The Tartaglias returned to El Paso a few hours later. They were met by Detective James E. Agan of the city police and United States Customs Agent Robert C. Johnson. The officers discovered that only a few dollars of the brothers' original $170 remained. Suspecting that the Tartaglias might be concealing narcotics, the officers took them to a hospital for a search of their persons.

Meanwhile, acting on the alternative suspicion that the Tartaglias might have given narcotics to someone else to carry across the border for them with arrangements for a rendezvous on the American side, Detective Joe Avalos posted himself in his unmarked car near the Tartaglias' car. According to Avalos's testimony, at eight o'clock that night, after he had been waiting about one hour, he saw the defendant Gonzalez driving an automobile with New Mexico license plates and a Mexican flag attached to the radio antenna. At that time Avalos did not know that Gonzalez had come from Juarez. Avalos testified that he saw Gonzalez drive several times around the block where the Tartaglia car was parked. Gonzalez then parked across the street, got out of his car, and waited in the area for about twenty minutes, every now and then turning his head in the direction of the bridge or the Tartaglia car. Finally Gonzalez got back in his car, again circled the area, and continued circling until, sometime later, Avalos stopped him.

Avalos had noticed that Gonzalez on several occasions had turned left sharply onto a two-way street, unlawfully cutting into the wrong lane. After finally deciding to stop Gonzalez, Avalos telephoned for another car. The two police cars followed Gonzalez for five blocks before the officers made their arrest. During this time they clocked Gonzalez's car at thirty-six miles an hour in a thirty-mile zone.

Upon stopping the defendant's car, Avalos asked for his driver's license. On learning that he had none, the officer asked Gonzalez where he lived. When Gonzalez said that he was from Juarez, Mexico, Avalos asked for his passport or local crossing card. Avalos saw that the defendant's name was Amador-Gonzalez and, according to his testimony, was struck by the thought that the defendant might be related to Ignacia Jasso Gonzalez, otherwise known as "La Nacha", the "Dope Queen of Juarez", considered a major supplier of narcotics in that city. He did not then know that defendant is in fact the grandson of "La Nacha".

During the questioning by Avalos, with the two uniformed officers nearby, the defendant stepped out of his car, leaving the front door open. Avalos testified, "there was a bump on the front seat right next to where the driver sits, the upholstery was torn, and I reached in there and lifted up this piece of torn upholstery and picked up this rubber bundle out of there." It contained about three grams of heroin. The government introduced the bundle as evidence at the trial.

Detective Avalos and the two uniformed officers took the defendant to the Customs Office located at the Bridge. There they met Agent Johnson and Detective Agan who had returned from the hospital after the Tartaglias had been searched and no drugs had been found on them. The uniformed officers then wrote out three traffic tickets, which Avalos signed, charging the defendant with making an improper left turn, speeding, and failing to have a driver's license. The two detectives, Agent Johnson, and Customs Inspector Guillermo Perez escorted Gonzalez to the El Paso police station. Johnson then interrogated him. After a few hours, Gonzalez confessed to helping the Tartaglias smuggle into Texas heroin bought from "La Nacha" in Juarez. Shortly after midnight he was booked on charges of vagrancy and possession and importation of heroin. The next day he was transferred to the county jail on a charge of possession of heroin. On that day, September 15, 1965, Agent Johnson filed a complaint with the United States Commissioner, charging the defendant with violation of 21 U.S.C. § 174. Gonzalez was never booked on the traffic offenses and the record reveals no disposition of those charges.

II.

The Supreme Court has pointed out that it is only "unreasonable searches that are prohibited by the Fourth Amendment". United States v. Rabinowitz, 1950, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 9 L.Ed.2d 653. But the Court has also emphasized that there are few exceptions to the requirement of a warrant as an essential protection of the Fourth Amendment:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise by ferreting out crime. * * * When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent. Johnson v. United States, 1948, 333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L. Ed. 436.

If restrictions of the Fourth Amendment on official intrusions into the privacy of citizens are to be meaningful, courts must scrutinize searches and seizures allegedly coming within recognized exceptions to the requirement of a warrant.

A. This case does not come within the "plainsight" exception established in Marron v. United States, 1927, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 213. This rule permits an officer to investigate and seize property visible to him without a search, if he is lawfully in a position enabling him to see the object seized. In our recent decision in Nunez v. United States, 5 Cir. 1967, 370 F.2d 538, local officers had stopped an automobile when the driver had appeared to be driving recklessly, and had discovered a sawed-off shotgun, the possession of which formed the basis for the federal prosecution. In that case the court found that "there was ample evidence to support the conclusion that the weapon involved was clearly visible to the officers without a detailed search of the automobile." 370 F.2d at 539. In the case now before the court, the heroin under the upholstery cannot be said to have been "clearly visible".

B. The search did not constitute a "border" search under federal statutes permitting warrantless search of persons and vehicles entering this country. Kelly v. United States, 5 Cir. 1952, 197 F.2d 162; King v. United States, 5 Cir. 1958, 258 F.2d 754; Davis, Federal Searches and Seizures 368-373 (1964). Under 19 U.S.C. §§ 482, 1581, 1582, the person conducting the search must be an officer authorized by the United States to make such searches, and such search of persons, vehicles, and effects must be related to the entry of contraband or dutiable merchandise into the the United States. Here the search fails to meet either of these requirements.

C. Finally, the search was not within the Carroll doctrine permitting warrantless search of a vehicle not incident to arrest when an officer has probable cause to believe that the vehicle is being used to carry contraband. Carroll v. United States, 1925, 267 U.S. 132, 45 S. Ct. 280, 69 L.Ed. 543 (a seizure under express statutory authority); United States v. Di Re, 1948, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Scher v. United States, 1938, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151; Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; 1 Varon, Searches, Seizures and Immunities 108 (1961). Here the only grounds that could give rise to probable cause were the defendant's circling the block where the...