U.S. v. Mendoza

• Citation: 722 F.2d 96
• Decision Date: 12 December 1983
• Docket Number: No. 83-3040,83-3040
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis Carlos MENDOZA and Oscar Tabares, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 96

722 F.2d 96

UNITED STATES of America, Plaintiff-Appellee, v. Luis Carlos MENDOZA and Oscar Tabares, Defendants-Appellants.

No. 83-3040.

United States Court of Appeals Fifth Circuit.

Dec. 12, 1983.

Rehearing and Rehearing En Banc Denied March 19, 1984.

Michael J. Osman, Miami, Fla., for defendants-appellants.

John P. Volz, U.S. Atty., Harry W. McSherry, Marilyn Gainey Barnes, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, TATE and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Luis Carlos Mendoza and Oscar Tabares appeal their convictions for conspiracy to possess with intent to distribute and possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. On appeal, they contend that the thirty pounds of cocaine seized from Mendoza's vehicle and their post-arrest oral statements should have been suppressed because the stop and search which resulted in the discovery of the cocaine and the statements were illegal. ¹ Tabares also contends that the evidence was insufficient to sustain his conviction. Finding no merit to their arguments, we affirm.

I.

On September 3, 1982, narcotics officers of the Jefferson Parish Sheriff's Department (JPSD) were informed by an agent of the Drug Enforcement Administration (DEA) that the DEA had received information from an anonymous source in Miami, Florida, that an individual named Oscar Tabares, living at a specified address in Gretna, Louisiana, and having a specified telephone number, would be moving a large shipment of cocaine "during the holidays" ² from the New Orleans area to Miami.

Based on this information, narcotics officers of the JPSD established twenty-four-hour surveillance on Tabares' residence on September 3, 1982. No activity was observed on either September 3, or September 4. On September 5, 1982, at 11:30 a.m., JPSD officers followed Tabares to a motel on Veterans Highway in Metairie, Louisiana. Tabares entered Room 223 at the motel and remained there a short time. The occupant of Room 223 had registered at the motel under the name of Francis Gomez and had given a Miami, Florida, address. While there, Tabares and the room's occupant had a loud argument in Spanish. After leaving Room 223, Tabares made a telephone call from a pay telephone. He then got in his vehicle and drove, in an erratic manner "as if giving the impression he was trying to look for a tail," to his home.

At approximately 6:00 p.m. on September 5, an unidentified individual arrived at Tabares' residence. A short time thereafter, both he and Tabares were observed making a thorough search of the undercarriages of both vehicles.

After Tabares had left Room 223 on September 5, JPSD officers maintained a surveillance of that room. At approximately 10:15 a.m. on September 6, Lt. Anthony Soto of the JPSD narcotics division observed a man (presumed to be Gomez) leave the room with a small carrying case and proceed on foot in a westbound direction down Veterans Highway. Followed by Lt. Soto, the man walked to a Wilson's department store where he was observed walking around and continually looking over his shoulder. After leaving the store, he walked into a dead-end lot. He then walked across Veteran's Highway to a restaurant where he remained about two minutes. After leaving the restaurant, he walked to another restaurant where he made a telephone call. Minutes later he was picked up by a cab and taken to the airport.

At the airport, Lt. Soto and a DEA agent, Ben Morse, stopped the man and asked for identification. Identification was supplied which showed the man to be Francisco Garcia. Garcia told the officers he resided in New York. He provided them with a Florida driver's license which listed a Miami address. While claiming he was an Ecuadorian citizen, he presented an Argentinian passport. The officers then allowed Garcia to board his flight to Miami.

Meanwhile, Tabares, also under surveillance by the JPSD, had left his residence and driven to a supermarket where he used a pay telephone before returning home. At approximately 11:50 a.m., he again left his residence and drove to the Marriott Hotel where he met a man who was driving a Ford automobile with a temporary Florida license tag in its rear window. Tabares and this individual left the hotel in their respective automobiles and proceeded by a direct route to Williams Boulevard. After they turned onto Kenner Avenue, the cars were driven in "an erratic manner" ³ to a warehouse at 1404 Kenner Avenue. The Ford automobile bearing the temporary Florida license tag was then driven into the warehouse through its sliding garage-type door. Tabares parked his automobile outside the warehouse, walked inside the warehouse, and closed its sliding door. Tabares and the other man remained inside the warehouse for forty-five minutes. The Ford automobile was then driven out of the warehouse by the other man who was observed to be perspiring heavily. Tabares then got into his automobile and, with the Ford automobile following, drove along Williams Boulevard in a northbound direction.

At this time, Lt. Soto and Agent Morse, who had been trailing Gomez-Garcia and who had just questioned him at the airport, were still at the airport when they learned by radio of the meeting at the Marriott Hotel between Tabares and the unidentified man (later identified as Luis Carlos Mendoza) who was driving an automobile with a Florida tag, their trip to and stop at the Kenner warehouse, and their departure from the warehouse in their automobiles. After a conference with a JPSD supervisor, it was decided that both cars should be stopped. The stop was made at the intersection of Williams Boulevard and Airline Highway by eight to ten police officers. The police approached Tabares and Mendoza, who was driving the Ford, and ordered them to exit their vehicles. They were both frisked for weapons and placed in the back of a police cruiser. No weapon was discovered.

After the vehicles were moved from the intersection by the police, Tabares and Mendoza were removed from the vehicle for interrogation. As Mendoza was being questioned, Agent Morse began a security search of Mendoza's automobile. He searched the front seat area and the trunk area. He found no weapon. Agent Morse then began to search the rear seat area. He observed that the corner of the rear seat was "sticking up" three or four inches. He then grabbed the back seat and forcibly pulled it apart. When he did this, he discovered a two-pound package of what was later determined to be cocaine.

As Agent Morse was searching the rear seat area, Lt. Soto asked Mendoza for permission to search his automobile. Mendoza orally consented to the search of his automobile. After the package was discovered, Lt. Soto asked Mendoza if there was any more cocaine in the automobile. Mendoza told him that there were more packages behind the rear seat but that a special tool would be needed to remove the seat. Tabares and Mendoza were formally arrested and taken, along with the automobiles, back to the warehouse. There the officers found twenty-eight one-pound packages of cocaine behind the rear seat of Mendoza's car. No cocaine was found in Tabares' automobile. Both Tabares and Mendoza made post-arrest statements admitting their guilt.

After a hearing was held on the motion to suppress the thirty pounds of cocaine seized during the search of Mendoza's vehicle, the district court denied the motion. It held, in effect, that there was a proper investigatory stop of Mendoza's automobile followed by proper advice of rights after which Mendoza consented to the search of his automobile.

After a non-jury trial, Tabares and Mendoza were found guilty of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. They were each sentenced to twenty years. This appeal followed.

II.

In contending that the trial court erred in denying the motions to suppress the cocaine seized from Mendoza's automobile, the appellants argue that the stop and search of the two vehicles was not supported by either reasonable suspicion of criminal activity or probable cause. Assuming arguendo that the initial detention was a valid stop pursuant to the rules of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), they contend that the length of the detention and the substantial intrusion of Agent Morse's warrantless search went beyond the bounds of a permissible Terry investigation, thereby requiring suppression of the cocaine.

Mendoza and Tabares also contend that any arguable consent to search given by Mendoza was invalid because it was fatally tainted by the prior illegal arrest/detention and search. Further, they argue that the consent cannot validate this illegal search because it was not freely and voluntarily given and was also given subsequent to Agent Morse's initial search.

The government argues that the search was justified under the automobile exception after an arrest or, in the alternative, as a limited protective search after a reasonable Terry stop and as a consent search by Mendoza. The government also contends that under the totality of circumstances standard for determining probable cause as set forth in the Supreme Court's decision in Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527, sufficient probable cause was established in this case to justify the warrantless search of Mendoza's automobile.

In response to the government's Gates argument, Tabares and Mendoza argue that a comparison of the facts in Gates and in the present case, clearly shows that the initial stop of Mendoza's vehicle was illegal because the totality of the known circumstances was not sufficient to justify the stop and search. They point out that the informant's tip in Gates was very detailed concerning the modus operandi of the drug...