U.S. v. Bustamante-Saenz

• Decision Date: 31 January 1990
• Docket Number: No. 89-1369,BUSTAMANTE-SAEN,S,89-1369
• Citation: 894 F.2d 114
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose G.antos Lopez-Orosco, and Jose Luis Sotelo, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 114

894 F.2d 114

UNITED STATES of America, Plaintiff-Appellee, v. Jose G. BUSTAMANTE-SAENZ, Santos Lopez-Orosco, and Jose Luis Sotelo, Defendants-Appellants.

No. 89-1369

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1990.

Ricardo R. Alvarado, Midland, Tex., for Bustamante-Saenz.

Allen R. Stroder, Odessa, Tex., for Lopez-Orosco.

Tony Chavez, Chavez & Garcia, Odessa, Tex., for Jose Luis Sotelo.

Robert J. Erickson, U.S. Dept. of Justice, Washington, D.C., LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for U.S.

Appeals from the United States District Court for the Western District of Texas.

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Jose Bustamante and Jose Sotelo were convicted of conspiracy to possess marijuana with the intent to distribute, 21 U.S.C. Sec. 846, and with possession of marijuana with intent to distribute, 21 U.S.C. Sec. 841(a)(1). Santos Lopez was convicted of a separate count of possession of marijuana with intent to distribute. They appeal their convictions, alleging various grounds of error. We affirm.

I

A.

On November 1, 1988, Jim Atwater, an Odessa, Texas, police officer, received a tip from a reliable informant that Jose Bustamante planned to enter the United States from Mexico to transport narcotics from Presidio, Texas, to Odessa, Texas. Atwater relayed this information to William Upchurch, a special agent with the United States Customs Service. On that same day, Gordon Ridings, a U.S. customs officer, observed Bustamante enter the United States from Mexico at the Presidio, Texas port of entry, in a white Pontiac.

Also on November 1, 1988, Tom Finley, an agent with the Permian Basin Drug Task Force, informed Upchurch that he had received a tip from a second informant that two individuals, Pedro Garcia and Pedro Valdez, were at the ranch of a known drug smuggler, had specially outfitted a yellow, two-door Cadillac to transport narcotics and had left Kermit, Texas, to pick up marijuana in Presidio. Finley partially confirmed this information when he observed the Cadillac at the drug smuggler's ranch on the same day.

From November 1 through November 5 agents observed the yellow Cadillac parked at a residence in Presidio.

On November 3, Wayne Wiemers, a special agent with the United States Border Patrol in Marfa, Texas, called Upchurch and warned him to look for a grey Lincoln Mercury, Texas license 941-KZK. That vehicle had been posted for special scrutiny because it was suspected of having been used previously in connection with drug trafficking. Border Patrol Agent Tom Finney stopped and searched the grey Mercury, occupied by Garcia and Valdez, at the Marfa Checkpoint. No contraband was discovered.

On November 4, Agent Finney observed Garcia driving the grey Mercury to the Balia Motel in Presidio. Around 4:00 p.m. on November 4, Upchurch saw Garcia meeting Juan Lopez (father of defendant Santos Lopez) in vehicles across from a supermarket in Presidio. Garcia again drove the grey Mercury. At 10:00 p.m., Upchurch and Ridings observed the grey Mercury in front of the Balia Motel.

At 1:00 a.m. on November 5, Ridings observed Bustamante arrive at the Balia Motel in a white Pontiac and enter the room registered to Garcia. At 7:00 p.m. that day, Ridings observed the grey Mercury parked in front of a supermarket in Presidio. At 10:00 p.m., the Mercury left the supermarket. Ridings followed the Mercury and stopped it five miles north of Presidio. The car was driven by Garcia. Ridings obtained Garcia's consent to search the trunk, but discovered no contraband. At the same time, Ridings radioed a request to the Department of Public Safety to stop a black pickup truck that had been trailing the Mercury. Trooper Sheffield stopped the pickup, driven by Holguin. Bustamante was a passenger in the pickup. Sheffield searched the vehicle but found no contraband.

On November 6, Finley received information that the yellow Cadillac was loaded with narcotics in Presidio and ready to return to Kermit. Using aerial surveillance, Ridings located the car north of Presidio, on a ranch owned by Lopez's father. Ridings testified that he flew over the Lopez ranch because he had seen Lopez in the company of those suspected of hauling marijuana. Shortly thereafter, Ridings and others set up surveillance on the highway bordering the Lopez ranch.

In the pre-dawn of November 7, three individuals in the same black pickup truck in which Bustamante had been observed two days before drove onto the ranch and stopped near the yellow Cadillac. A few minutes later, both vehicles left the ranch: the car driving north toward Kermit and the truck, operating without lights and occupied by two persons, driving south toward Presidio. Upchurch and Finley stopped the Cadillac, and smelling the odor of marijuana, they searched the vehicle and found ninety-seven pounds of marijuana in a false compartment below the front seat. They arrested Sotelo, the driver of the Cadillac. Other customs officers stopped the pickup truck and arrested its occupants, Bustamante and Holguin. A search of the vehicle revealed no drugs.

The officers returned to the ranch and, after summoning Lopez from the house, arrested him. With Lopez's consent, the officers conducted a quick search of the house for other individuals. Later that morning, the officers, with Lopez's consent, returned to the ranch, searched his house and found, in addition to marijuana residue, certain articles used to process marijuana, i.e., a hydraulic press, scales, bondo filler, rolls of plastic wrap and duct tape. In searching the grounds around the ranch, they also found two duffel bags containing eighty-four pounds of marijuana, which were located approximately one mile from the Lopez ranch. Foot tracks on the road near where the duffel bags were found were positively identified as those of Lopez by using an imprint taken from his shoes.

Meanwhile, Bustamante and Lopez, who had been taken to the Presidio port of entry, but who had not been taken before a magistrate, made inculpatory statements while in custody. Bustamante confessed that the marijuana in the yellow Cadillac was his and was being transported to Odessa. Lopez admitted that he knew of the duffel bags found along the road near his father's ranch, although he denied they belonged to him.

B.

Sotelo, Bustamante, Lopez and Holguin were charged with conspiracy to possess marijuana with the intent to distribute it (21 U.S.C. Sec. 846) (count 1) and possession with the intent to distribute marijuana (21 U.S.C. Sec. 841(a)(1)) (count 2). Additionally, Lopez was charged with a separate count of possession with intent to distribute (21 U.S.C. Sec. 841(a)(1)) (count 3).

On March 6, 1989, following an evidentiary hearing, the district court denied the appellants' motions to suppress the post-arrest inculpatory statements and the physical evidence that had been seized. On April 19, 1989, the court issued its findings of fact and conclusions of law denying the appellants' motion to suppress.

After the appellants waived their rights to a jury trial, the district court found Bustamante and Sotelo guilty on counts 1 and 2; Lopez guilty on count 3, and Holguin guilty on count 2. The court sentenced Bustamante to concurrent terms of forty-four months, to be followed by a three-year term of supervised release. It sentenced Sotelo to concurrent terms of twenty-one months to be followed by a three-year term of supervised release. The court sentenced Lopez to a term of twenty-seven months to be followed by a two-year term of supervised release.

II

A.

Sotelo appeals his conviction, arguing that there was no probable cause to stop or search the Cadillac, and that the narcotics discovered pursuant to the warrantless arrest should have been suppressed. We reject this contention. "A warrantless search of an automobile is permissible where ... officers have probable cause to believe the vehicle contains contraband." United States v. Prati, 861 F.2d 82, 85 (5th Cir.1988). The agents had probable cause to believe that the yellow Cadillac contained illegal drugs: agent Finley had received information on November 1, 1988, that such a car had left Kermit, Texas to pick up a load of narcotics from Presidio, and agent Finley later spotted the vehicle at a ranch owned by a known drug dealer. On the day before the arrest, Finley received information that the Cadillac had been loaded with marijuana and would return to Kermit either that night or during the early morning hours the next day. The Cadillac was parked at the Lopez ranch, which was located in an area notorious for drug smuggling and was owned by a man who had associated with persons believed to be involved in drug trafficking. The black pickup truck that had previously been associated with Bustamante and Garcia arrived at the Lopez ranch, parked near the Cadillac, remained for a few minutes, and then both vehicles departed. Finally, after stopping the car, which had turned north towards Kermit as the informant had said it would, Finley and Upchurch smelled the odor of marijuana coming from it. Because, under the totality of the circumstances, the officers had probable cause to believe that the vehicle contained contraband, the warrantless stop and search of the vehicle was lawful.

Sotelo argues, however, that because the agents had monitored the movement of the yellow Cadillac for several days before November 7, there existed no exigent circumstances to stop it at that time, and thus their failure to obtain a warrant is fatal. The Supreme Court has rejected such an argument:

Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of the arrest. The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation's...