United States v. Garcia

• Decision Date: 03 October 1974
• Docket Number: No. 73-1929.,73-1929.
• Citation: 496 F.2d 670
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maria Corral GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

496 F.2d 670 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Maria Corral GARCIA, Defendant-Appellant.

No. 73-1929.

United States Court of Appeals, Fifth Circuit.

June 24, 1974.

Rehearing Denied August 13, 1974.

Rehearing and Rehearing Denied October 3, 1974.

Joseph A. Calamia, John L. Fashing, El Paso, Tex., for defendant-appellant.

William S. Sessions, U. S. Atty., San Antonio, Tex., Edward Marquez, Ralph E. Harris, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.

Before BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.

Rehearing and Rehearing En Banc Denied October 3, 1974.

GEWIN, Circuit Judge:

I

Mrs. Garcia appeals from a judgment of conviction under 21 U.S.C. § 841(a)¹ for possessing with intent to distribute approximately two pounds of heroin. After a bench trial, Mrs. Garcia was found guilty and sentenced to ten years imprisonment with a special parole term of five years. She raises two principal issues on this appeal: (1) whether the court erred in allowing statements allegedly elicited in violation of Miranda² to be used to support a search; (2) whether a motion to suppress evidence was erroneously denied.

Her second issue is based upon the premise that the heroin was discovered through an unconstitutional search. She contends that the search was unreasonable because there was no probable cause and that it cannot be justified as a "border search" or as a "voluntary consent" search. Furthermore, she contends that the government, in order to sustain a "consent" theory, was under an obligation to demonstrate that any alleged consent had been given with the knowledge that it could be freely withheld. We conclude that this case must be reversed and remanded for a new trial not for the precise reasons asserted on appeal but rather because a review of the record establishes that statements taken from Mrs. Garcia in violation of Miranda were used to enhance the prosecutions' case-in-chief.

II

Mrs. Garcia and her son attempted to cross the border between Mexico and El Paso, Texas. Upon approaching the primary inspection station, the license number of their automobile was routinely placed in a computer system known as CADPIN. The CADPIN report indicated that Mrs. Garcia was suspected of smuggling heroin.

In response to the positive CADPIN report she was referred to a secondary inspection. She possessed a valid permanent resident alien crossing card, and a search of her automobile failed to disclose any contraband. Similarly, personal searches of her and her son failed to produce any contraband. The Customs Inspectors, however, did discover in Mrs. Garcia's purse a key similar to the type used for storage lockers at bus depots. Apparently, the Customs Inspectors knew that such lockers were commonly employed by drug dealers to transfer narcotics.

Special Agent Hirsch was notified by telephone of the positive CADPIN report and the discovery of the locker key. He arrived at the Paso Del Norte Port of Entry about one hour after the initial detention. Mr. Hirsch and Special Agent Henry talked to Mrs. Garcia outside the presence and hearing of her son in a small office with the door closed. They asked her the purpose of her El Paso visit, and she responded that her son had requested to come to El Paso for a hamburger. Agent Hirsch then left her in the small room and walked outside to ask her son the purpose of their trip. The son replied that he had not asked to come to El Paso for a hamburger but rather accompanied his mother at her request.

In response to further questioning by Agent Hirsch, Mrs. Garcia said that the bus locker key had been given to her by her daughter, and explained that the locker contained some Christmas gifts which she was to pick up and return to her daughter in Mexico. Mrs. Garcia told Agent Hirsch that she did not know where the locker was located. Agent Hirsch thought the key looked similar to those used at the Continental Bus Station and a telephone call to Continental further substantiated his suspicion. Mrs. Garcia was then asked whether she would have any objections to showing Agent Hirsch the contents of the locker and she stated he would be welcome to inspect because the locker only contained gifts.

Mrs. Garcia accompanied the officers to the bus station and opened the locker. Examination of the contents revealed a quantity of a substance that later was shown to be heroin. Mrs. Garcia was then placed under arrest for smuggling heroin and for the first time was advised of her Miranda protections. At a later time Mrs. Garcia explained her part in the heroin operation to the officers.

III

If Agent Hirsch's questioning was a custodial interrogation, then the appellant was entitled to Miranda warnings. The Government contends that Hirsch's questioning was not a custodial interrogation. Rather, the Government would describe his actions as the "traditional investigative function and the general questioning of a citizen in the fact-finding process." The Government's characterization ignores the fact that Mrs. Garcia was detained for over an hour and questioned by two officers in a small room separated from her 13 year old son. Agent Hirsch himself testified that he had made up his mind to detain the appellant until he was satisfied as to the contents of the locker.

The Government characterization more importantly ignores our decision in United States v. Salinas, 439 F.2d 376 (5th Cir. 1971). Judge Bell, in Salinas, clearly delineated when a border detention becomes custodial.

Thousands of persons enter the country daily and are subject to some degree of detention while their luggage is searched and they are asked routine questions concerning citizenship, destination, whether they have items to declare, questions regarding contraband, and the like. To hold that questioning of these types or routine border searches of luggage place a person "in custody" within the meaning of Miranda would unduly distort that case. . . . However, when the border search becomes more than routine, such as when a person is discovered to be concealing suspicious materials, or when a person is taken to a private room and strip searched as here, a different outcome obtains.³ (citations omitted)

It is obvious that the governmental activity revealed here was more than "routine." Mrs. Garcia was subjected to a complete strip search and detained for at least an hour. The discovery of the locker key had aroused the agents' suspicion. Under the Salinas standard, she was subjected to a custodial interrogation by Agent Hirsch. Her statements during this interrogation were used to aid the prosecution's case-in-chief. Agent Hirsch was permitted to testify about the inconsistent responses of Mrs. Garcia and her son regarding the purpose of their El Paso trip. He also testified concerning Mrs. Garcia's explanation of Christmas presents in the locker and her disclaimer of knowledge of the locker's location. Accordingly, she is entitled to a new trial without the introduction of these statements.

IV

Next we shall consider whether the heroin seized from the locker may be properly admitted into evidence. Mrs. Garcia asserts that the heroin was procured during an unreasonable search without probable cause. The Government does not contest the assertion of a lack of probable cause.⁴ It seeks, however, to validate the search as a voluntary consent search or as a border search. It is well established that a search conducted pursuant to consent is excepted from the requirements of both probable cause and a warrant.⁵ A prosecutor who seeks to introduce the fruits of such a search has the burden of proving the consent was voluntarily given and not the result of duress or coercion. This is a question of fact to be determined from all the circumstances.⁶

Mrs. Garcia contends that the Government was under an obligation to demonstrate not only that the alleged consent had been uncoerced, but that it had been procured with an understanding by her that it could be freely and effectively withheld. She recognizes that the Supreme Court recently rejected this contention in a noncustodial situation.⁷ Custody, however, is alleged to so heighten the possibilities for coercion as to require a specific warning of one's fourth amendment rights. This court has previously refused to distinguish custodial from noncustodial consent.⁸ The test in either situation remains the same. Voluntariness is a question of fact to be determined from all the surrounding circumstances, and custody like the subject's knowledge of a right to refuse, is only one factor that should be taken into account.⁹ Therefore, knowledge of fourth amendment rights is not necessarily required to validate consent to search after a suspect is in custody. Mrs. Garcia's next contention is that the Miranda violation should vitiate her alleged consent. If the evidence taken in violation of Miranda cannot be used to aid the Government on the issue of guilt, she argues that the statements elicited should similarly not be used by the Government during a motion to suppress to show her consent. Mrs. Garcia's application of the Miranda principles to statements proving consent to search has been almost universally ignored.¹⁰ We are aware, nevertheless, that the independent application of Miranda principles to fourth and fifth amendment protections has been somewhat clouded by this court.

In both United States v. Legato¹¹ and United States v. Canseco¹² this court was faced with a consent search when Miranda warnings had been given prior to the consent. The consent searches were validated in each case, and the judgments of conviction were affirmed. Both opinions, however, mentioned the prior Miranda warnings. Legato stated, "Such consent constitutes a valid waiver of fourth amendment rights if prior to the search Miranda warnings are given." Likewise, the Canseco court said, "Where Miranda warnings are adequate, further specific warnings relating to...