U.S. v. Cruz, 76-3527

Citation581 F.2d 535
Decision Date06 October 1978
Docket NumberNo. 76-3527,76-3527
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Guillermo Rhodes CRUZ, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Gustavo L. Acevedo, Asst. Federal Public Defender, Laredo, Tex., Roland E. Dahlin, II, Federal Public Defender, Karen K. Friedman, Asst. Federal Public Defender, Houston, Tex., for defendant-appellant.

J. A. Canales, U. S. Atty., Mary L. Sinderson, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Rene Gonzalez, Asst. U. S. Atty., Laredo, Tex., James R. Gough, Anna E. Stool, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, and VANCE, Circuit Judges. *

ALVIN B. RUBIN, Circuit Judge:

Because the economic opportunities and political freedom offered by the United States irresistibly attract illegal immigrants across the longest unfortified borders in the world, law enforcement authorities are faced with a continuing duty to stem the illicit influx that violates our laws, deprives domestic workers of jobs, and creates innumerable other problems that the immigration laws were designed to prevent. This task must, however, be performed with due regard to the Fourth Amendment to the Constitution, which affords citizen and alien alike protection against illegal stops, searches, and arrests. To determine whether a person engaged in assisting unlawful immigration was apprehended by lawful means, we consider en banc the validity of the action of a state police officer in stopping a motor vehicle being driven on a Texas State Highway, 25 miles from the border of the United States with Mexico. See United States v. Brignoni-Ponce, 1975, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607.

I.

The security of citizens against arbitrary police intrusion into places of privacy is at the core of the Fourth Amendment proscription against unreasonable searches of private citizens and seizures of their property. Wolf v. Colorado, 1949, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, 1785. If evidence, therefore, is illegally seized by a federal officer, it may not be used in a federal prosecution, Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; nor may a federal prosecutor employ evidence illegally obtained by a state police officer, Elkins v. United States, 1960, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. See also Mapp v. Ohio, 1961 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. 1 Not only must the evidence illegally obtained itself be excluded, but evidence located as a result of information secured by an illegal search is likewise inadmissible, Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, unless the connection between the illegal search and the evidence thereafter obtained has become "so attenuated as to dissipate the taint." Nardone v. United States, supra, 308 U.S. at 341, 60 S.Ct. at 268, 84 L.Ed. at 312; United States v. Ceccolini, 1978, 435 U.S. 268, 274, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268, 275-76.

Even federal officers on roving patrols assigned the mission of searching for illegal immigrants or smuggled contraband may stop vehicles "only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." United States v. Brignoni-Ponce, supra, 422 U.S. at 884, 95 S.Ct. at 2582, 45 L.Ed.2d at 618. Evidence obtained as a result of a stop that is not warranted by this standard must be suppressed. Id. Out-of-court statements and other verbal evidence derived immediately from unlawful police action or from an unlawful arrest must also be excluded unless the evidence was obtained by "means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 1963, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455; See also United States v. Brignoni-Ponce, supra.

The application of these doctrines to the in-court testimony of witnesses located as a result of an illegal search has recently been clarified in United States v. Ceccolini, supra. In Ceccolini, the Supreme Court held that, if the exclusion of the proffered testimony of a witness identified or located as a result of an illegal search would efficaciously serve the remedial objectives of the exclusionary rule, that evidence must be excluded. If, on the other hand, after striking a balance of the interests involved, exclusion of the testimony would bear no "relation to the purposes which the law is to serve," 435 U.S. at 279, 98 S.Ct. at 1062, then it should be admitted. The decision in Ceccolini requires us to re-examine the conviction of the defendant obtained as a result of the testimony of the witnesses arrested after the stop of a defendant's automobile and the consequent arrest of defendant and the witnesses.

II.

The defendant, Guillermo Rhodes, 2 was convicted after a jury trial of conspiracy to transport illegal aliens and three counts of transporting illegal aliens. 3 His conviction was affirmed by a panel of this court, United States v. Cruz, 5 Cir. 1977, 559 F.2d 300, Coleman, J., dissenting. As the facts set forth in the panel opinion demonstrate, the validity of this conviction was sustained on the basis that Rhodes was legally stopped by a State Deputy Sheriff when he was driving on a Texas highway; moreover, the testimony of the illegal aliens found in his automobile was held admissible, and this of itself provided sufficient evidence to sustain the conviction. Contrary to the panel decision, we find clearly erroneous the district court's implied conclusion of fact 4 that appellant's car was stopped in good faith for traffic control purposes; for the reasons set forth below, we conclude that Rhodes and his vehicle were halted as a pretext to search for illegal aliens. This conclusion requires us to re-examine the admissibility at trial of the testimony of the auto's occupants. We conclude that the testimony was a direct result of the illegal stop and resultant illegal arrest, that to exclude it would serve the purposes of deterring illegal searches in the future and therefore, that it was inadmissible. There being no other evidence to support the conviction, it is reversed.

III.

Like the panel, we begin with the rubric that, if the initial stop was legal, the deputy sheriff had the duty to investigate suspicious circumstances that then came to his attention. United States v. Faulkner, 5 Cir. 1974,488 F.2d 328, 330, Cert. denied, 1974, 417 U.S. 914, 94 S.Ct. 2614, 41 L.Ed.2d 218. See also United States v. Freund, 5 Cir. 1976, 525 F.2d 873, 875, Cert. denied, 1976, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 377; United States v. Edwards, 5 Cir. en banc 1978, 577 F.2d 883. If, however, the initial stop was not for a valid purpose, then observations made during the stop may not serve as a basis for further search. Amador-Gonzalez v. United States, 5 Cir. 1968, 391 F.2d 308. See also United States v. Davis, 5 Cir. 1970, 423 F.2d 974, 977-78, cert. denied, 1970, 400 U.S. 836, 91 S.Ct. 74, 27 L.Ed.2d 69; Texas v. Gonzales, 5 Cir. 1968, 388 F.2d 145. Compare United States v. Kaiser, 5 Cir. 1977, 545 F.2d 467.

The panel decision fairly recites the facts. We recount them because, in our view, some of the factual circumstances require greater emphasis and because, while a majority of the panel was merely troubled by the conclusion the trial court reached, we, like our brother who dissented, consider it clearly erroneous. The testimony most favorable to the prosecutor is that of the arresting officer, Deputy Sheriff Muldraw, and we necessarily adopt the view of the facts supported by his account. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

Deputy Muldraw was employed full time in private industry. In addition, he served as a deputy sheriff and was on 24-hour call even when engaged in private work. He had been a deputy for about three months but had received no training. He had never been called away from work to serve as a deputy. His private employer knew he was a deputy sheriff but he had never discussed with his employer the possibility that he might be called to police duty while at work. He had made arrests of specific individuals on instructions from a superior, but, on his own initiative, he had made arrests on only "a couple" or "several" occasions when he arrested aliens and turned them in to the Border Patrol. He had never made an arrest of any kind for a state offense on his own initiative.

On May 18, 1976, between 9:00 and 10:00 a. m., in broad daylight, Deputy Muldraw was driving west on State Highway 359 in his private vehicle, a pick-up truck, which bore no police identification. Although not in uniform, he was technically on duty because he was going to Laredo to have a two-way radio installed in his pick-up truck by the Sheriff's Department. As he approached Laredo, he ascended a hill. 5 As he did so, he observed a 1966 Pontiac traveling west on the shoulder of the highway at a slow speed, with its right turn indicator on. A yellow stripe on the highway indicated that this was an area in which it was illegal for one automobile to pass another on the highway. After the deputy passed the Pontiac and descended the hill, he kept looking in his rear-view mirror but did not see the Pontiac come over the hill.

Deputy Muldraw said he thought that, perhaps, the Pontiac had "car trouble or whatever," so he turned around to see if he could be of some assistance. When he returned to the place where he had seen the Pontiac, it had turned around and was traveling east. Concluding that the Pontiac had made...

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