U.S. v. Portillo-Reyes

Citation529 F.2d 844
Decision Date17 November 1975
Docket NumberD,No. 75--1940,PORTILLO-REYE,75--1940
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jose Arturoefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

James Meyers, Asst. U.S. Atty. (argued), Harry D. Steward, U.S. Atty., William E. Derbonne, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Michael J. McCabe (argued), of Federal Public Defendants, San Diego, Cal., for defendant-appellant.

OPINION

Before ELY and WRIGHT, Circuit Judges, and EAST, * Senior District judge.

EAST, Senior District Judge:

THE APPEAL

The defendant-appellant Jose Arturo Portillo-Reyes (hereinafter referred to as Reyes) appeals from his judgment of conviction and sentence to custody on four counts of violating 18 U.S.C. § 371 and 8 U.S.C. §§ 1324(a)(1), 1324(a)(2), and 1324(a)(4). We reverse and remand.

THE PROCEEDINGS IN THE DISTRICT COURT

Reyes and a co-defendant Rogelio Reyna-Romero (hereinafter referred to as Romero) were indicted on one count of conspiracy and nine substantive counts of smuggling and unlawfully transporting aliens into the United States in violation of the congressional Acts above.

The charges against Romero upon the Government's motion were severed for non-trial disposition.

Prior to trial, Reyes moved for an order suppressing the use as evidence against him of, inter alia:

(a) Any and all testimony that a key found upon the person of Romero following his arrest was a 'fit' to the vehicle occupied by Reyes;

(b) The photographs and passport taken from the vehicle occupied by Reyes; and

(c) Any incriminating statement of Reyes after being advised of his 'Miranda rights' and arrested.

The District Court held an evidentiary hearing and orally denied the motion. The District Court made no findings of fact in support of the minute order denying the motion, except the oral statement that '(Senior Patrol Agent Endler (hereinafter referred to as Endler)) had the key to the car which I think will give plenty of probable cause.'

Reyes was tried to a jury and convicted of the conspiracy count and three counts of illegal transportation of three aliens. Acquittals were entered on the remaining six counts. Reyes was sentenced on:

(a) The conspiracy count to a three year probationary term of suspended sentence on the condition that he be confined in a jail type or treatment institution for a period of 90 days, per 18 U.S.C. § 3651; and

(b) To custody on each of the three substantive counts for a period of 90 days, to run concurrently with each other and the 90 day sentence under Count 1.

FACTS

On February 6, 1975, at about 4:00 a.m., border patrol agent Ted Jordan was patrolling a dirt roadway in Calexico, California. The roadway is bounded on one side by the United States-Mexican border fence and on the other side, approximately 50 feet distant from the fence, by a housing project. The area was notoriously known to the agent for alien and narcotic smuggling.

Agent Jordan observed a group of people crossing the roadway behind him. They headed from the fence toward the housing project. He requested assistance and was joined by two other agents. In a search, the agents apprehended three women and a man lying in a ditch and weeds. The footprints of the four were found to lead from a hole in the border fence to their respective hiding places. When the four were apprehended, they claimed Mexican citizenship without right of entry to the United States. It was later determined at the patrol office that the three women were citizens of El Salvador. The male citizen was identified as Romero.

A search of Romero's person produced a key ring holding a residence key and three automobile keys, one each for a Datsun, Opel, and Volkswagen. The automobile keys were given to Endler. Through past experience in apprehending participants in smuggling and illegal trafficking of aliens, Endler knew that a load car is usually in the area when aliens, particularly women, illegally cross the border. Endler took the keys to the parking area adjacent to the housing project for the purpose of conducting a search for a Datsun, Opel, or Volkswagen automobile. He observed about 35 automobiles in the parking area, none of which were Opels or Datsuns, but one was a Volkswagen in which a man was lying in the front seat.

Endler called for assistance. Agent Keyser responded, and when he arrived, they knocked on the window. Reyes rolled down the window, and when asked about his citizenship, he replied that he was a citizen of El Salvador. He showed his green card alien registration (legally migrating alien) and said 'He was going to Los Angeles.' The Government's brief states: 'At this time the agents advised Reyes of his rights and placed him under arrest. Agent Endler then inserted the Volkswagen key taken from Romero into the car door lock and it unlocked the door and also activated the ignition system.' 1 The agents determined that Reyes also had a ket to the automobile. They conducted a search of the interior of the Volkswagen and discovered several photographs of Romero in the glove compartment and a passport in the rear in the name of another El Salvadorian.

The Government's case against Reyes was bottomed upon the testimony of codefendant Romero, who was a brother-in-law of Reyes, and two of the women aliens. Agents testified about the Volkswagen key found on Romero, their experience and expertise indicating a presence of a load car in like situations, the key found on Romero fitting Reyes' Volkswagen, and the finding of the photographs and passport. The photographs and passport were also received in evidence.

The testimony of the third woman was exculpatory of Reyes and the subject of the basis of Issue 2, infra. Romero testified that he had a key to his brother-in-law's Volkswagen because he drove his pregnant sister on shopping tours at various times and forgot to return the key. This statement exploded a suspicious circumstance first relied upon by the agents.

ISSUES FOR REVIEW

Reyes' contentions present the two following issues:

(1) Whether the detention of Reyes and the border patrol agent's insertion of the Volkswagen key into the door of the vehicle of Reyes constituted an arrest and incidental search, and, if so, whether the facts known to the agents at the moment of the arrest and search provided probable cause for the arrest and search.

(2) Whether the court's interrogating the alien called by Reyes, inquiring if the witness realized that she was sworn to tell the truth and if she were telling the truth and asking her if she realized that she might be prosecuted for not telling the truth, prejudiced Reyes and deprived him of a fair trial.

DISCUSSION
Issue 1:

The crux of Reyes' contention of error is that at the moment of his arrest, the agents did not have probable cause for the arrest and search of the Volkswagen. Accordingly, claims Reyes, the arrest and incidental search and seizure violated his Fourth Amendment immunities.

Whether the arrest preceded the search of vice versa is immaterial as the requirement for the existence of probable cause is mandated to justify either by the agents. The mandate of the existence of probable cause to make a valid arrest is delineated in the following language of the Supreme Court in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) at 91, 85 S.Ct. at 225:

'The constitutional validity of the search in this case, then, must depend upon the constitutional validity of (Reyes') arrest. 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 (Reyes) had committed or was committing an offense. Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 1310--1311, 93 L.Ed. 1879; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134. 'The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating . . . often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.' Brinegar v. United States, supra, 338 U.S. at 176, 69 S.Ct. at 1311.'

We are satisfied that under the 'reasonable expectancy of privacy' doctrine of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the insertion of the key in the door of the Volkswagen, to see if it fit constituted the beginning of the search.

The requirement of the existence of probable cause to validate the search is delineated in the following language of the Supreme Court in United States v. Ortiz, 422 U.S. 891, at 896, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 622 (1975):

'(Some degree of discretion) to search private automobiles is not consistent with the Fourth Amendment. A search, even of an automobile, is a substantial invasion of privacy. To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search. Almeida-Sanchez (Almeida-Sanchez v. U.S., 413 U.S. 266 (1973)), at 269--270, 93 S.Ct. (2535) at 2537--2538 (37 L.Ed.2d 596); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970).'

While it might be argued that the agents would not be required to obtain a warrant to search the Volkswagen under the holding in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), '(a)utomobile or no automobile, there must be probable cause for the search.' Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596 (1973).

The Government does not claim that the search of...

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37 cases
  • People v. Robinson
    • United States
    • California Court of Appeals Court of Appeals
    • 7 Agosto 2012
    ...and turning the key, alone, violated the Fourth Amendment.9 For that proposition, defendant cites only United States v. Portillo–Reyes (9th Cir.1975) 529 F.2d 844( Portillo–Reyes ), in which the court stated, without any analysis or citation to authority, “the insertion of the key in the do......
  • People v. Robinson
    • United States
    • California Court of Appeals Court of Appeals
    • 14 Noviembre 2012
    ...and turning the key, alone, violated the Fourth Amendment.9 For that proposition, defendant cites only United States v. Portillo–Reyes (9th Cir.1975) 529 F.2d 844( Portillo–Reyes ), in which the court stated, without any analysis or citation to authority, “the insertion of the key in the do......
  • People v. Robinson
    • United States
    • California Court of Appeals Court of Appeals
    • 28 Octubre 2011
    ...and turning the key, alone, violated the Fourth Amendment.5 For that proposition, defendant cites only United States v. Portillo–Reyes (9th Cir.1975) 529 F.2d 844 ( Portillo–Reyes ), in which the court stated, without any analysis or citation to authority, “the insertion of the key in the d......
  • State v. Ponce
    • United States
    • Court of Appeals of New Mexico
    • 21 Septiembre 2004
    ...locks of a car found in a parking lot and suspected to belong to the defendant not to be a search); but see United States v. Portillo-Reyes, 529 F.2d 844, 847-48 (9th Cir.1975) (stating insertion of key obtained from search of suspected drug smuggler into door lock of vehicle suspected as a......
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