546 F.2d 1264 (5th Cir. 1977), 75-3693, United States v. Tuley

Docket Nº:75-3693.
Citation:546 F.2d 1264
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Terance TULEY and Frank Christian Oller, Defendants-Appellants.
Case Date:February 14, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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546 F.2d 1264 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,


David Terance TULEY and Frank Christian Oller, Defendants-Appellants.

No. 75-3693.

United States Court of Appeals, Fifth Circuit

February 14, 1977

Rehearing and Rehearing En Banc Denied April 25, 1977.

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Ferriel C. Hamby, Jr. (Court-appointed) Harlingen, Tex., for Tuley.

Roland E. Dahlin, II, Federal Public Defender, Mike DeGeurin, Juan E. Gavito, Asst. Fed. Public Defenders, William W. Burge, First Federal Public Defender, Houston, Tex., for Oller.

Edward B. McDonough, Jr., U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GEWIN, GODBOLD and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

David Terance Tuley and Frank Christian Oller appeal from convictions for violations of the federal laws relating to marijuana. 1 The basis of their appeal is that the district judge improperly denied their motions to suppress evidence.

On January 13, 1975, Special Agents Gabriel Bustamante and Carlos Torres of the Cameron County Organized Crime Task Force, Texas, received information from an unnamed, but "previously reliable", confidential informant that two men from Oklahoma, staying in rooms 113 and 133 of the Ramada Inn Motel, Brownsville, Texas, were planning to transport a large quantity of marijuana from the Rio Grande Valley area to the state of Oklahoma. The informant also disclosed that the suspects would be using two vehicles, a pickup truck with a camper, and a motor home, to transport the contraband. Upon receipt of this information, the Texas officers began a surveillance of the suspects. Observation quickly corroborated the informant's tip as to the description of the vehicles and the presence of the two suspects in the indicated rooms. The vehicles bore Oklahoma license plates, which verified the information that the men were from Oklahoma and supported to some extent the statement that they would transport marijuana to that state.

On January 15, 1975, Gary Morrison, an agent of the federal Drug Enforcement Administration (DEA), joined the surveillance. 2 At the suppression hearing, Morrison testified to the following:

The surveillance had been started, initiated, upon information received by Cameron County Task Force Agent Carlos Torres . . .

Agent Torres advised the other agents involved in the case that he had received information from a credible source that two men were in Brownsville, Texas, staying at the Ramada Inn in Rooms 113 and 133. These men were driving a pickup truck with a camper, and a motor home, and that they were here in the

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Valley to transport a quantity of marijuana north out of the Valley.

Agent Lofstrom (another D.E.A. agent) advised me that they had located two vehicles meeting the description, both with Oklahoma plates, at the Ramada Inn, and that these vehicles had also driven to South Padre Island to the Queen Isabella Inn where the drivers of the vehicles had been observed entering Apartment 1 and 2 of the Queen Isabella Inn.

Agent Lofstrom advised me that he had received information from another D.E.A. office that the renter of Apartment 1 and 2 of the Queen Isabella Inn, Robert Muller, 3 was involved in transporting large quantities of marijuana from the border area to the Oklahoma City Area.

Morrison and the other agents on January 15 followed a Chevrolet pickup truck with a camper, and a Champion motor home from the Queen Isabella Inn area, Port Isabel, Texas, to the Ramada Inn in Brownsville, Texas. At the motel, four people left the vehicles, went into room 133, and took articles from that room and placed them in the rear of the pickup truck. The two vehicles shortly returned to Port Isabel, and the surveillance was discontinued for that day.

About noon the next day, January 16, Morrison and other agents resumed the surveillance of the pickup truck as it moved west, away from the Port Isabel area and in the direction of McAllen, Texas. As the vehicle proceeded along Highway 83, near Mercedes, Texas, Morrison and two other agents stopped the pickup truck, which was occupied by appellant Tuley and his Doberman Pinscher. A search of the vehicle produced a .38 caliber pistol under the front seat and some marijuana debris in the camper area. At that point, Tuley was placed under arrest and advised of his constitutional rights. Tuley was then taken to the Brownsville district office for processing.

At the Brownsville office, Tuley told Agents Morrison and Lofstrom that he was hired by unknown persons in Oklahoma City to come to Brownsville and Port Isabel, Texas, to assist in transporting a large quantity of marijuana to the Oklahoma City area. Later he told the agents that the marijuana was in a motor home situated on South Padre Island Beach. A search warrant was issued for the motor home, 4 and 546 pounds of marijuana were found

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therein. Oller's arrest followed, on the basis of marijuana found in the motor home. 5

A warrantless search is "per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of 'exigent' circumstances." Coolidge v. New Hampshire, 1971,403 U.S. 443, 474-475, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564. An exception exists as to the search of a moving vehicle, when probable cause exists for such a search. The seminal case as to warrantless searches of vehicles is Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 453, where the Court held:

" . . . that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

"Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made.

The measure of legality of such a seizure is . . . that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes had contraband liquor therein which is being illegally transported."

267 U.S. at 153, 155-156, 45 S.Ct. at 285-286. See Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596; Chambers v. Maroney, 1970, 399 U.S. 42, 49, 90 S.Ct. 1975, 1980, 26 L.Ed.2d 419; Potter v. United States, 5 Cir. 1966, 362 F.2d 493, 497.

Thus, to justify the stop and search without a warrant of the vehicle driven by Tuley in the present case, we must find that the officers had probable cause to believe that it contained contraband. Probable cause exists if "the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offence has been (or is being) committed . . ." Stacey v. Emery, 1878, 97 U.S. 642, 645, 24 L.Ed. 1035. See Spinelli v. United States, 1969, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637; Beck v. Ohio, 1964, 379 U.S. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d 142; Henry v. United States, 1959, 361 U.S. 98, 80 S.Ct. 168, 171, 4 L.Ed.2d 134; Brinegar v. United States, 1948, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879.

In United States v. Squella-Avendano, 5 Cir. 1971, 447 F.2d 575, 580, this Court commented on the composite test of Aguilar v. United States, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli, supra:

"First, if the information provided is in such 'detail' and 'minute particularity' that 'a magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way,' then the report, if sufficiently incriminating, may, without more, be grounds for finding probable cause. Secondly, less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agencies yields sufficient verification or corroboration of the informant's

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report to make it 'apparent that the informant had not been fabricating his report out of whole cloth.' Corroboration must render the report 'of the sort which in common experience may be recognized as having been obtained in a reliable way.' Thirdly, even a report that is not under the above two standards sufficient of itself to establish probable cause may count in the magistrate's determination of probable cause, but only as one of a number of other factors of 'further support' tending to show probable cause. Examples of satisfactory 'further support' given in Spinelli involved law enforcement agencies' knowledge of independent facts which suggest criminal conduct or of facts which take on an aura of suspicion in light of the informant's tip."

While here the source of the informer's information was not revealed, nor how the information was gathered, the detailed facts relayed to the agents and corroborated by them were of such a nature, in light of all the surrounding circumstances, that the district court could reasonably have inferred that the informer obtained his information "in a reliable manner and had substantial evidence on which to base his conclusion that the Defendants were probably engaged in criminal activity"...

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