United States v. Lopez-Ortiz

• Decision Date: 05 July 1974
• Docket Number: No. 73-2936.,73-2936.
• Citation: 492 F.2d 109
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aurelio LOPEZ-ORTIZ, John David Kopp and Danny Ray Poston, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.2d 109 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Aurelio LOPEZ-ORTIZ, John David Kopp and Danny Ray Poston, Defendants-Appellants.

No. 73-2936.

United States Court of Appeals, Fifth Circuit.

April 4, 1974.

Rehearings and Rehearings Denied May 16, 1974.

Rehearing Denied July 5, 1974.

Albert Armendariz, Jr., El Paso, Tex. (Court-appointed), for Lopez-Ortiz.

John L. Fashing, El Paso, Tex., for Kopp.

Emmett Colvin, Jr., Dallas, Tex., Frank Moore, Irving, Tex., for defendants-appellants.

Danny Ray Poston, pro se.

William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., James W. Kerr, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before BELL, THORNBERRY and DYER, Circuit Judges.

Rehearings and Rehearings En Banc Denied May 16, 1974.

BELL, Circuit Judge:

The question in this case as to all three defendants, Kopp, Poston and Lopez-Ortiz, arises from their assertion of error in the denial of a motion to suppress approximately 539 pounds of marijuana seized at the time of their arrests. As will be explained, disposition of this issue turns on whether the arrests were supported by probable cause. As to defendant Lopez-Ortiz, there is the additional question of sufficiency of the evidence to justify his conviction.

The defendants were convicted on a two-count indictment charging in the first count a violation of 21 U.S.C.A. § 846, in that they conspired to possess marijuana with the intent to distribute it, contrary to 21 U.S.C.A. § 841(a)(1); and in the second count, possession of the same marijuana with intent to distribute it, contrary to 21 U.S.C.A., § 841(a)(1). This appeal followed. We affirm as to Kopp and Poston and reverse as to Lopez-Ortiz.

As will be seen, the investigation was begun on the basis of information received from an informer, but there was no effort on the part of the prosecution to establish that the informer was reliable. The customs officer in charge indicated at the hearing on the motion to suppress that he did not wish to give out any information whatever about the informer.

The first information received from the informer was that Dan Poston of Dallas, Texas, was a major dealer in marijuana and made frequent trips to El Paso for the purpose of obtaining marijuana for distribution in other parts of the country. This information was received by a customs agent during the first week of April 1973. The customs agent then checked the name of Poston against customs files and connected Poston with Kopp. The files disclosed that Kopp had been arrested on February 9, 1973 in possession of 320 pounds of marijuana, while driving an automobile leased from an El Paso automobile dealer by Poston. The vehicle had been leased on January 23, 1973 and the lease was renewed by Poston on February 9, the day of Kopp's arrest, through the payment of three hundred dollars.

Thereafter the customs agent received advice from the confidential source that Poston would be in El Paso during the weekend of April 27, 1973 in connection with a marijuana transaction. The agent knew that Kopp resided in El Paso. Putting two and two together, he caused a surveillance to be established in the area of Kopp's residence beginning between 7:30 and 8:00 P.M. on April 27. The surveillance team consisted of seven customs agents, including the agent who had received the information and who had connected Poston with Kopp. The agents were positioned in the area of Kopp's residence and were in radio communication with each other.

Upon beginning the surveillance, the agents observed a 1966 Pontiac sedan in the driveway of the Kopp residence, facing the door of a garage attached to the house, and a 1968 Ford Galaxie in the driveway behind the Pontiac. A Buick Skylark automobile was parked in front of the residence. At 10:15 P.M., a 1969 El Camino pickup truck, with a camper attached, arrived in the area and parked across the street from the Kopp residence. The occupants of the pickup walked across the street and entered the Kopp residence. At 10:30 P.M. the Ford Galaxie left the residence with either one or two unidentified occupants and returned at approximately 11:00 P. M. This time four occupants exited the vehicle and entered the Kopp residence.

At approximately 1:00 A.M., April 28, the Ford Galaxie, occupied only by a driver, pulled out of the driveway, circled the block, and parked in the street in front of the residence. At 1:15 A.M., the El Camino pickup which had been parked across the street was backed into the driveway. It was separated from the garage by the Pontiac which remained immediately in front of the garage. Three of the surveilling agents, at least two using binoculars and positioned from twenty yards to a block away, observed several people unloading large filled gunnysacks from the rear of the pickup and placing the bundles in the garage. The front door of the garage as well as the front of the residence, according to photographs in evidence, were very near the street. The agents who observed this activity notified the participating agents by radio of what they were seeing. The agents then moved in, purportedly to see if a marijuana transaction was taking place, and if so, to arrest the persons engaged in the transaction. Upon moving in, they identified themselves as federal officers, whereupon the participants in the unloading operation broke and ran. Only three persons were apprehended: Poston and Kopp in the immediate vicinity, and Lopez-Ortiz, who was found hiding behind a rock wall which separated the backyard of the Kopp residence from the next door residence.

Six of the gunnysacks were in view of the officers at the time of the arrests, and the odor of marijuana was prevalent. These sacks were seized, as was another which was discovered by an agent when he flashed his light into the Buick Skylark parked in front of the house in an effort to find one or more of the escapees. Further, an additional sack was found several days later during a search of the Buick's trunk. It is the marijuana in these eight sacks which was the subject of the motion to suppress. Whether the court committed error in denying the motion turns, as we shall explain, on the validity of the arrests and we proceed to a consideration of that issue.

I.

It is important to note at this point that we are not concerned with a search of any sort.¹ We are concerned only with the accepted rule that contraband in plain view may be seized, even though it is on private property, so long as the initial intrusion on to the property is legitimate by virtue of a warrant or an exception to the warrant requirement, at least in circumstances where a warrant for the contraband itself could not have been previously obtained. See Coolidge v. New Hampshire, 1971, 403 U.S. 443, 464-471, 91 S.Ct. 2022, 2037-2040, 29 L.Ed.2d 564, 581-586. Since it is clear that there was no time prior to entry to obtain a warrant, we need deal only with whether the initial warrantless intrusion was legal. If it was, the combination of the odor of marijuana and the nature of the plainly visible sacks was sufficient to support seizure of the bags as containing contraband.

As one justification for the agents' presence on Kopp's premises, the government contends that they entered merely to inquire of the defendants whether a marijuana transaction was in progress. The general idea is to analogize their entry to the approach of the officers, without probable cause, in Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Adams v. Williams, 1972, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. However, classifying this entry as a so-called investigative approach strains the facts, inasmuch as it was accomplished by a sudden raid by seven officers. Thus, we pretermit this approach as justification for the officers' presence on the property. Rather, we proceed on the theory that the raid constituted an arrest, that the contents of the plainly visible sacks were apparent to the agents once they were on the property, and that the validity of the seizure thus turns on whether the arrests were valid.

The question we must answer is that posed in Beck v. Ohio, 1964, 379 U. S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145:

"Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. . . ."

Were facts and circumstances known to the arresting officers here, or of which they had reasonably trustworthy information, of such sufficiency as to warrant a prudent man in believing that the defendants were committing an offense? We think so.

The sum of the showing on probable cause for the arrests begins with the tip from the informer that Poston was engaged in the marijuana business in El Paso. The customs agent by independent investigation then developed the connection between Poston and Kopp. As heretofore outlined, Poston had supplied the vehicle used by Kopp when he was previously apprehended in possession of a large quantity of marijuana. The informer then supplied the further information that Poston would be in El Paso on a particular weekend in connection with a marijuana transaction. At this point, the officers determined to place the Kopp residence under surveillance.

In the course of the surveillance, the agents saw a pickup truck camper arrive and several people enter the Kopp residence. Subsequently, the camper was backed into the Kopp driveway, and several men then engaged in an unloading operation wherein gunnysacks were moved from the camper and placed in the garage. At this point the arrests were made. The fair inference from the...