U.S. v. Tuley
Decision Date | 14 February 1977 |
Docket Number | No. 75-3693,75-3693 |
Citation | 546 F.2d 1264 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Terance TULEY and Frank Christian Oller, Defendants-Appellants. |
Court | U.S. Court of Appeals — Fifth Circuit |
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.
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 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 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:
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:
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". Memorandum and Order of the District Court, p. 9.
In United States v. Brennan, 5 Cir. 1976, 538 F.2d 711, 720, this Court noted that "an accumulation of innocent detail conforming to the original tip" may have significant corroborative...
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