582 F.Supp. 121 (W.D.Tex. 1984), P-84-CR-04, United States v. Oyarzun

Docket Nº:P-84-CR-04.
Citation:582 F.Supp. 121
Party Name:UNITED STATES of America v. Mario Alejandro OYARZUN.
Case Date:March 05, 1984
Court:United States District Courts, 5th Circuit, Southern District of Texas
 
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Page 121

582 F.Supp. 121 (W.D.Tex. 1984)

UNITED STATES of America

v.

Mario Alejandro OYARZUN.

No. P-84-CR-04.

United States District Court, W.D. Texas, Pecos Division.

March 5, 1984

Ricardo D. Gonzalez, U.S. Atty., El Paso, Tex., for plaintiff.

Albert D. Diamond, Miami, Fla., for defendant.

Page 122

RULE 12(e) FINDINGS

BUNTON, District Judge.

On this date came on to be made and entered these factual findings as to the granting of Defendant's Motion to Suppress the evidence seized in a search of his automobile on or about December 17, 1983, and this Court, noting that it has previously granted Defendant's Motion in the prosecution for his alleged violation of 18 U.S.C. §§ 922(k) and 924(a), enters the following Findings of Fact pursuant to Fed.R.Cr.P. 12(e) in order to complete this cause's record.

I.

On or about December 17, 1983, at approximately 1:00 p.m., Defendant MARIO ALEJANDRO OYARZUN, driving a 1983 Pontiac Grand Prix bearing California license plates, attempted to pass through the Sierra Blanca Permanent Border Patrol Checkpoint on Interstate 10, approximately 80 miles east of El Paso, Texas. Upon approaching the checkpoint station, Defendant, driving alone in the vehicle, was routinely asked his national citizenship and legal status within this Country by Border Patrol Agent Saenz, a veteran of less than one year with the Border Patrol. Defendant, a Chilean national, failed to respond to Agent Saenz' questions posed in Spanish. Upon receiving no response from Defendant, Agent Saenz instructed Defendant to drive his vehicle into the secondary inspection area of the checkpoint, an open parking area several yards off the main traveled roadway.

After being requested to step out of his vehicle, Defendant presented his documentation establishing that he was a Chilean national and that he was legally temporarily residing within this Country. Border Patrol Agent Bullock, after fully inspecting Defendant's papers, demanded that Defendant open the vehicle's trunk so that he could search it. Agent Bullock, upon inspecting the interior of the vehicle's trunk, saw that no illegal aliens were being transported within the vehicle. However, Agent Bullock saw some duct tape in the trunk's interior and decided to further search the vehicle because of the tape's presence. Agent Bullock stated that the presence of the duct tape "sparked his suspicion" in the vehicle. Agent Bullock thoroughly searched the vehicle's trunk and in so doing searched a brown paper sack and Defendant's personal luggage located in the vehicle's trunk. This search, being founded only upon Agent Bullock's suspicion having been "sparked" by the presence of duct tape, revealed two separate caches of United States currency in the brown paper sack and Defendant's luggage.

While Agent Bullock had been rummaging through Defendant's personal belongings in the trunk, Border Patrol Agent Stensel searched the vehicle's passenger compartment. In so doing, he searched under the vehicle's rear seat--although he admittedly knew no illegal aliens were secreted under the seat cushion since such would be patently impossible, and that the seat cushion was otherwise securely fastened to the vehicle's floorboard. After removing the vehicle's rear seat, Agent Stensel discovered a Llama .380 pistol with its serial number obliterated. Defendant was then placed under arrest for his violation of 18 U.S.C. §§ 922(k) and 924(a).

Both agents who searched the vehicle did so with the intent of discovering "guns...

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