U.S. v. Casimiro-Benitez

• Decision Date: 26 March 1976
• Docket Number: D,CASIMIRO-BENITE,No. 75-3335,75-3335
• Citation: 533 F.2d 1121
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pomposoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1121

533 F.2d 1121

UNITED STATES of America, Plaintiff-Appellee, v. Pomposo CASIMIRO-BENITEZ, Defendant-Appellant.

No. 75-3335.

United States Court of Appeals,

Ninth Circuit.

March 26, 1976.

Thomas D. Schaefer (argued), San Diego, Cal., for defendant-appellant.

Stephen V. Petix, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

OPINION

Before CHAMBERS and BARNES, Circuit Judges, and BOHANON, ^* District Judge.

BARNES, Circuit Judge:

Pomposo Casimiro-Benitez appeals from a judgment of conviction of illegal reentry of the United States by an alien after a prior conviction of illegal entry in violation of 8 U.S.C. § 1325, and of illegal reentry of the United States by an alien after a prior deportation in violation of 8 U.S.C. § 1326. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1291, 1294. We affirm.

On June 14, 1975, at approximately 4:30 a. m., Border Patrol Agents John D. Pool and Franklin R. Shumate were patrolling an area of downtown San Ysidro, California, near the Toreador Motel, which is located between one-half and three-quarters of a mile from the international border with Mexico. Agent Pool was aware that this area was utilized by illegal entrant aliens for hiding purposes while waiting for transportation. He had personally apprehended other illegal aliens in that immediate vicinity.

On this particular night, Agent Pool was instructing Agent Shumate, a trainee officer, as to the use of the area surrounding the Toreador Motel as a hiding place by illegal entrant aliens. As Agent Pool drove his patrol car slowly in front of the motel, he shined his hand-held spotlight on the trees and shrubbery alongside the Toreador to indicate to Agent Shumate where illegal aliens were likely to hide. At that instant, Agent Pool heard the rustling of leaves or breaking of branches in that very area. Immediately stopping his car, Agent Pool instructed Agent Shumate to investigate.

Looking over a wall that runs along the sidewalk and forms a part of the Toreador Motel property, Agent Shumate found the appellant and two other persons crouched down in a hiding position. To Agent Pool, the appellant appeared to be of Mexican descent, and "extremely dirty" in dress and personal appearance. R.T. 11. Based upon his previous experience, Agent Pool believed that appellant was an illegal entrant alien.

After a brief check of the area for additional illegal aliens, the two officers placed appellant and the two other persons in the back seat of their patrol vehicle. For the purpose of moving off of San Ysidro Boulevard to avoid the traffic, the car was moved approximately two hundred feet to a side street. There, the aliens, including appellant, were again removed from the patrol car and then processed. During this processing, the appellant was asked his citizenship and when he had entered the United States. R.T. 16-17. Prior to that time, he was not advised of his Miranda rights. A transport van was then summoned to pick up the aliens for further deportation processing.

Later that same morning, at approximately 7:30 a. m., Agent Pool contacted the appellant at Border Patrol Headquarters and gave him his Miranda warning which he acknowledged he understood. Further deportation processing then took place, during which Agent Pool took inked fingerprint impressions of appellant. These fingerprints were found by a qualified fingerprint expert to be identical to those taken in connection with the appellant's earlier deportation.

At approximately 9:00 a. m. on that morning, Border Patrol Agent William Gibson readvised appellant of his Miranda rights. Acknowledging that he understood those rights, appellant admitted that he was an alien and had entered the United States that morning from Mexico. Appellant further admitted that he had a prior conviction for illegal entry, dated June 18, 1974, and a prior deportation, dated April 26, 1972. C.T. 17.

On appeal appellant raises two issues. First, he argues that his being placed in the automobile, and his subsequent identification as an illegal alien, violated the fourth amendment, since the arrest was without probable cause. Second, he contends that the failure of the agents to give him his Miranda warning immediately following his apprehension violated the fifth amendment.

As to the first issue, we find no merit in appellant's contention. As stated by the Supreme Court, the agents here had probable cause if, at the moment of the arrest, "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 (arrested person) had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145 (1964); accord, United States v. McDowell, 475 F.2d 1037, 1039 (9th Cir. 1973).

In applying the above test, this Court "must consider all the facts known to the officers and consider all the reasonable inferences that could be drawn by them before the arrest." United States v. Martin, 509 F.2d 1211, 1213 (9th Cir.), cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975). It must be remembered that "it is immaterial that each circumstance, taken by itself, may be consistent with innocence." Hernandez v. United States, 353 F.2d 624, 628 (9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2d 1021 (1966); see United States v. Patterson, 492 F.2d 995, 997 (9th Cir. 1974). As Patterson further notes, the experience of the arresting officers, the time of the day or night, and the distance from the border are also relevant variables. 492 F.2d at 996-97. In total, "(t)he question is one of fact, and each case necessarily turns on its own peculiar facts." Martin, supra, 509 F.2d at 1213.

In the instant case, Agent Pool had considerable experience in this particular border area and had previously apprehended other illegal entrant aliens in that specific location. The Toreador Motel is situated between one-half to three-quarters of a mile from the Mexican border. The time of apprehension was 4:30 a. m. When discovered, appellant was hiding behind a wall in a crouched position. He appeared to be of Mexican descent. He was wearing "extremely dirty" clothing and his personal appearance was also "extremely dirty." R.T. 11.

From these facts and circumstances, we conclude that the agents had probable cause to arrest appellant. To an experienced border patrol agent, the above facts and circumstances, when considered in their totality, were not consistent with innocent conduct. Rather, drawing on these facts and considering the reasonable inferences therefrom, Agent Pool concluded that appellant was an illegal entrant alien. We hold that Agent Pool had probable cause for so concluding.

In regard to appellant's second contention that the failure of the agents to give him his Miranda warning immediately following his apprehension violated his fifth amendment rights, we note that the government has...