U.S. v. Inocencio

• Decision Date: 08 December 1994
• Docket Number: No. 93-7514,93-7514
• Citation: 40 F.3d 716
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel INOCENCIO, Evaristo Hinojosa, Sr., Daniel Alfonso Reyes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 716

40 F.3d 716

UNITED STATES of America, Plaintiff-Appellee, v. Daniel INOCENCIO, Evaristo Hinojosa, Sr., Daniel Alfonso

Reyes, Defendants-Appellants.

No. 93-7514.

United States Court of Appeals,

Fifth Circuit.

Dec. 8, 1994.

Rehearing Denied Jan. 30, 1995.

Eustorgio Perez, Vela, Perez & Pena, Laredo, TX, for Hinojosa.

Jose Luis Ramos, Pharr, TX, for Inocencio.

Ruben Garcia, Laredo, TX, for D. Reyes.

Katherine L. Haden, Paula C. Offenhauser, Asst. U.S. Attys., Gaynelle Griffin Jones, U.S. Atty., Houston, TX, for U.S.

Appeal from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, WIENER and EMILIO M. GARZA, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Daniel Inocencio, Evaristo Hinojosa, Sr., and Daniel Alfonso Reyes (the "appellants") were indicted on October 20, 1992, on two separate counts. Count one consisted of conspiracy to possess with intent to distribute over five kilograms of cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A) and 846. Count two dealt with the underlying possession offense in violation of 21 U.S.C. Sec. 841(a)(1), 841(b)(1)(A) and 18 U.S.C. Sec. 2. ¹

The appellants were convicted by a jury on both counts of the indictment on April 24, 1993, and were sentenced on July 22, 1993. Evaristo Hinojosa, Sr., received a concurrent imprisonment term of 300 months in the custody of the Bureau of Prisons, followed by a eight year term of supervised release, a $3,500 fine and a $100 special assessment. Daniel Inocencio received a concurrent imprisonment term of 235 months, followed by a five year term of supervised release, a $3,500 fine and a $100 special assessment. Daniel Alfonso Reyes ("Reyes") received a concurrent imprisonment term of 240 months, followed by a five year term of supervised release, a $3,500 fine and a $100 special assessment. The appellants appeal their convictions. For the reasons below, we AFFIRM the district court.

FACTS

On October 1, 1992, while conducting traffic duties at the checkpoint on Highway 16, two miles south of Hebbronville, Texas, U.S. Border Patrol Agents Carl Rhodes and Luis Del Olmo were notified at noon that directional vehicular sensors had been activated on a private ranch road on Helen Ranch between FM 3073 and Highway 359. These sensors had been installed, after numerous complaints from ranchers, to detect narcotics smugglers who commonly used the road to circumvent two nearby Border Patrol checkpoints. ² The sensors were strategically As Agents Rhodes and Del Olmo proceeded to the ranch, they were alerted of another sensor "hit". They also overheard on their police scanner that a tan Ford Bronco had been observed making U-turns in the area, driving up and down the highway. The agents suspected that the Bronco was a "lookout" for a second vehicle carrying contraband; the vehicle which had presumably activated the sensors. Upon reaching the ranch, the agents parked near to a locked gate that enclosed the private road and waited for a vehicle to exit.

placed to avoid detecting routine traffic on the ranch. Agent Rhodes' unit alone had made five seizures of narcotics between April 1991 and October 1991 due to the triggering of such devices.

At 12:15 p.m., they observed a white 1992 Ford pickup truck drive up to the gate from within the ranch. The truck's sole occupant, a Hispanic male, exited the vehicle and unlocked the gate. The occupant was later identified as Reyes, one of the appellants. Two other agents, Morales and Sigala, drove by as Reyes locked the gate. All four agents observed the truck depart towards Hebbronville. None of the agents recognized the truck or Reyes.

These agents were not only familiar with the traffic around the ranch, but they had been advised by a ranch owner that the only individuals authorized to access the road were employees of Helen Ranch, the Hughes Oil Company and the Rodriguez Service Company. The agents testified that they were familiar with the ranch employees accessing the road, that the Hughes trucks were identifiable by their company logos and that the Rodriguez truck was a white Datsun truck. The white Ford truck driven by Reyes aroused the agent's suspicions due to their unfamiliarity with the vehicle, the heightened drug activity in the area, the lack of company logos on the truck and the fact that it carried no tools or pipe racks typical of oil field trucks. The agents were also unaware of any oil activity in the area at that time. Furthermore, although Reyes appeared to be dressed as a workman, his clothing appeared too clean to have been working in the field.

The agents followed the truck onto the highway in the direction of Hebbronville. A check of the vehicle's license registration revealed that the vehicle was registered in the name of Hector Eduardo Hill of Newark, Texas. Due to their suspicions, the agents decided to stop the truck for an immigration inspection. As Agent Del Olmo questioned Reyes, Agent Rhodes noticed signs of a false compartment in the bed of the truck. The record discloses that Rhodes observed that the back of the truck was higher than normal, that Rhodes smelled fresh paint and noticed that a fresh coat of it covered dents and scratches around the fender wells at the back of the truck and that there was a fresh black undercoating in certain areas underneath the bed of the truck. ³ The parties dispute the questions asked by Del Olmo following the stop, and Reyes' behavior and responses to such questions. In any event, Agent Rhodes ultimately asked Reyes if he consented to a canine search of the vehicle. Reyes replied in the affirmative and a drug-sniffing dog immediately detected contraband in the bed of the truck.

Reyes was properly placed under arrest and approximately 300 pounds of cocaine (with a street value of $9,600,000) were recovered from a false compartment in the bed of the truck. The agents also recovered a hand-held, two-way radio from the seat of Reyes' truck, a small amount of cocaine and a key to the ranch gate. After Reyes' arrest, the local sheriff's department was notified to be on the "look out" for the Bronco which had been driving back and forth on the highway.

At 3:18 p.m., Deputy Roland Garza, with the Jim Hogg Sheriff's Department, observed the Bronco traveling on Highway 359 After receiving Daniel's consent to search the vehicle, Deputy Garza inquired whether there were any weapons in the Bronco and Daniel indicated that there was a gun in the glove box and a clip with ammunition in the driver's side door panel. For safety reasons, the search was continued at the sheriff's department. While searching the Bronco, Deputy Garza finally realized that it matched the description of the vehicle sighted in connection with possible narcotics trafficking. Daniel was arrested for possession of a firearm, driving without a license or liability insurance and for driving too closely behind another vehicle. Nicanor was arrested for possessing approximately two grams of cocaine.

one mile west of Hebbronville. The Bronco was following too closely behind a recreational vehicle, approximately one car length behind at a speed of 55 m.p.h., prompting Deputy Garza to pull the Bronco over. Daniel Inocencio ("Daniel"), the driver, failed to produce a license and proof of insurance. He also admitted to following the recreational vehicle too closely and apologized. Nicanor Inocencio ("Nicanor"), the passenger, produced his Texas driver's license. While writing out the citations against Daniel, the deputy asked about a two-way radio located under the dashboard. Daniel admitted to owning the radio and became nervous and evasive when asked further questions about it.

A thorough search of the Ford Bronco revealed that the two-way radio was programmed to the same frequency as the radio found in Reyes' truck. Officers also found a cellular phone that displayed a locked-in phone number of 664-7323, a piece of paper with the same phone number and number 132 written on it, and a photograph of Daniel and Reyes. The phone number was traced to Alice Motor Inn in Alice, Texas. The officers further seized a digital pager from Daniel and numerous phone numbers from his and Nicanor's wallet, including Evaristo Hinojosa's cellular phone numbers and Reyes' pager number.

Alice police officers were sent to room 132 at the Alice Motor Inn. The room was registered under the name of David Garza, but it was later determined that Nicanor had signed the registration card for the room. The occupants of the room were identified as Hector Eduardo Hill ("Hill"), Evaristo Hinojosa, Sr., ("Hinojosa") and Alejandro Trevino. After preliminary questioning, Hill, Hinojosa and Alejandro Trevino were transported to the Laredo Drug Enforcement Agency office. Hill and Hinojosa were consequently arrested and charged with the present drug offenses. ⁴ Reyes, Daniel and Hinojosa appeal the convictions arising from the facts above.

DISCUSSION ⁵

I. Daniel Alfonso Reyes

A.

Reyes bases his appeal on three separate points of error. In his first point of error, the appellant argues that U.S. Border Patrol agents lacked reasonable suspicion to conduct a stop and probable cause to conduct a search of the vehicle. Reyes asserts that the Agents were predisposed to stop any traffic traveling the private road at Helen Ranch. Consequently, Reyes argues all evidence seized from such stop is fruit from a poisonous tree. Hence, said evidence should have been suppressed in his pre-trial motion to suppress.

A district court's purely factual findings are reviewed under the clearly erroneous standard. United States v. Cardona, 955 F.2d 976, 977 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 381, 121 L.Ed.2d 291 (1992). The evidence presented at a pre-trial hearing on a motion to suppress is viewed in the light most favorable to the prevailing party. Id. The conclusions of law derived from a district court's findings of fact, such as whether a...