U.S. v. Rubalcava-Montoya

• Decision Date: 22 August 1978
• Docket Number: RUBALCAVA-MONTOY,D,Nos. 77-3405,SERRATO-BALTAZA,77-3406,s. 77-3405
• Citation: 597 F.2d 140
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Santosefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Antonioefendant-Appellant. Ninth Circuit
• Court: U.S. Court of Appeals — Ninth Circuit

Page 140

597 F.2d 140

UNITED STATES of America, Plaintiff-Appellee, v. Santos RUBALCAVA-MONTOYA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Antonio SERRATO-BALTAZAR, Defendant-Appellant.

Nos. 77-3405, 77-3406.

United States Court of Appeals,

Ninth Circuit.

Aug. 22, 1978.

Rehearing Denied June 4, 1979.

George Benedict (argued), Eugene G. Iredale (argued), San Diego, Cal., for defendants-appellants.

Howard A. Allen, Asst. U. S. Atty. (on the brief), Michael H. Walsh, U. S. Atty., Howard A. Allen, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

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

Before BARNES and KENNEDY, Circuit Judges, and BARTELS, ^* District Judge.

KENNEDY, Circuit Judge:

In this case the Government failed to establish either the legality of a search or that certain key testimony procured in consequence of this illegal government activity was so attenuated from it as to be admissible. Application of the exclusionary rule requires that we reverse appellants' convictions. Each appellant was convicted on one count of conspiracy to transport aliens, 18 U.S.C. § 371; 8 U.S.C. § 1324, and on four counts of transportation of illegal aliens, 8 U.S.C. § 1324(a)(2).

On June 29, 1977 one Ventura arrived at the San Clemente checkpoint driving a car containing five illegal aliens, all of whom were concealed in the trunk. Appellant Rubalcava was among those hidden there. Appellant Serrato was the registered owner of the vehicle, but he was not present during the events in question. Border patrol agents stopped the car at the checkpoint and directed Ventura to a secondary area. There Ventura was recognized by agent Slocumb, who had arrested Ventura for smuggling aliens through the same checkpoint two weeks earlier. Slocumb advised agent Foster of these facts, and Foster approached the car to speak with Ventura.

The record is meagre at this critical point. There was testimony that Ventura left the car and walked slowly toward the trunk, his head down, with a "dejected, hangdog demeanor." The only further description of the circumstances of the search which followed is embodied in a portion of Slocumb's testimony:

Defense Counsel: And there was a search of the trunk at that time, sir, when he came to the rear of the vehicle?

Slocumb: The trunk was open (sic) and the evidence was taken into custody.

Record, vol. VII at 21. The "evidence" to which Slocumb referred was the five illegal aliens.

At trial on the conspiracy and transportation of aliens charges, three of the aliens found in the trunk testified that Rubalcava had arranged for their illegal entry, and that Serrato, the registered owner of the car driven by Ventura, was a conspirator and a principal in the illegal activity as well. Thereupon Ventura, who was a codefendant with Rubalcava and Serrato, took the stand and further implicated both of his codefendants. Appellants argued, and they reiterate on appeal, that evidence given by the officers regarding discovery of the illegal aliens and all of the testimony of Ventura and of the witnesses found in the trunk should be suppressed as the results of an illegal search. We agree.

The Government concedes that appellants have standing to object to the search. Serrato has standing by virtue of his ownership of the vehicle which was searched, United States v. Mulligan, 488 F.2d 732, 736-37 (9th Cir. 1973), and Rubalcava's standing arises from his having been, by consent of the owner of the premises or his agent, within the zone of privacy invaded by the search, Jones v. United States, 362 U.S. 257, 260-67, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). It is therefore proper for us to consider appellants' objections to the search and to use of the testimony obtained as a result of it.

A checkpoint stop for brief questioning is lawful, but subsequent searches of the vehicle may be undertaken only if supported by probable cause or if proper consent for the search has been given. United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Ortiz, 422 U.S. 891 (1975). To establish the legality of such a search, the Government has the burden of proving that one of these conditions was fulfilled. See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Marshall, 488 F.2d 1169, 1186 (9th Cir. 1973). Here the facts and conditions necessary to determine whether or not the search was lawful are simply absent from the record. That the defendant had previously been arrested for the same crime at the same place, and that he had a "dejected, hangdog demeanor" when he exited the car, are insufficient facts on which to base a finding of probable cause to search for evidence of a crime. Nor does the record disclose whether or not Ventura's exit from the car was voluntary or how the trunk was opened or who opened it. Neither consent nor probable cause was established. Since the Government has not proven otherwise, we must proceed on the assumption that the search was conducted in violation of the fourth amendment. ¹

The Government nonetheless argues that even if the search were illegal, the testimony of Ventura and of the witnesses discovered in the trunk was so attenuated from the search that it cannot be considered an illegal fruit thereof. The Government's contention is that the testimony was the product of the volition of each witness, and that these independently significant acts intervened to break the causal link to the illegal search. We cannot agree.

In determining whether live witness testimony is " 'so attenuated (from an illegal search) as to dissipate the taint,' " Wong Sun v. United States, 371 U.S. 471, 487, 491, 83 S.Ct. 407, 417, 419, 9 L.Ed.2d 441 (1963), Quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 103, 84 L.Ed. 454 (1939), the Supreme Court has rejected a per se rule of admission or exclusion even where a cause in fact relationship has been established. United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). ² The Court held in Ceccolini that before testimony, as opposed to...