U.S. v. Pollack

• Decision Date: 01 February 1990
• Docket Number: No. 88-2749,88-2749
• Citation: 895 F.2d 686
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Perry POLLACK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 686

895 F.2d 686

UNITED STATES of America, Plaintiff-Appellee, v. George Perry POLLACK, Defendant-Appellant.

No. 88-2749.

United States Court of Appeals, Tenth Circuit.

Feb. 1, 1990.

Presiliano A. Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Tara C. Neda, Asst. U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

James B. Foy (Charles A. Harwood with him on the briefs), Silver City, N.M., for defendant-appellant.

Before ANDERSON and BARRETT, Circuit Judges, and THEIS ^*, District Judge.

BARRETT, Senior Circuit Judge.

George Perry Pollack (Pollack) appeals his conviction following a jury trial of possession with the intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1).

Prior to trial, Pollack moved to suppress the marijuana which was seized from the automobile he was driving and which was the basis of the indictment returned against him. At the suppression hearing, Border Patrol Agents Carroll and Sanchez testified on behalf of the United States. Stephen Stevers, an investigator, testified on behalf of Pollack, and Pollack testified on his own behalf.

Agent Carroll testified that: at approximately 3:00 a.m. on May 6, 1989, a red Datsun pickup was driven to the Truth or Consequences, New Mexico, Border Patrol checkpoint on northbound Interstate I-25; both occupants of the pickup identified themselves as United States citizens; as they started to leave the checkpoint, the driver of the pickup inquired as to the nearest gas station north; Agent Carroll related that the nearest gas station north was approximately seventy miles and that the nearest gas was back at Truth or Consequences.

Agent Sanchez testified that: he was working with Agent Carroll at about 3:00 a.m. on May 6, 1989, when a red 1979 Datsun pickup came to the checkpoint; upon being asked where the nearest gas would be, Agent Carroll directed the driver of the pickup back to Truth or Consequences; approximately 45 minutes later, the agents had two simultaneous sensor "hits" on Sensor 1185, old Highway 85; Highway 85 circumvents the Border Patrol checkpoint on the freeway; Highway 85 parallels the freeway and has access back onto the freeway approximately two miles north of the checkpoint; Highway 85 is a well-documented alien smuggling route and "we've" apprehended many alien smuggling loads on that route; the two simultaneous hits indicated that there were two vehicles traveling one behind the other; he and Officer Carroll drove to Interchange 83 (Highway 85 access to I-25) to intercept the vehicles; the first vehicle to pass was the 1979 red Datsun pickup which had previously passed through the checkpoint on I-25; immediately behind the pickup was a 1972 Buick with Colorado plates; the 1972 Buick was significant to him as a Border Patrol agent because it is a very large vehicle into which a large number of people can fit; the Colorado plates were significant because Colorado is a common destination for loads of illegal aliens; and the actions of the pickup, coming through the checkpoint, finding a reason (the nearest gasoline) to go back to Truth or Consequences, and coming back north from Truth or Consequences through the smuggling route circumventing the checkpoint was a classic alien-smuggling pattern.

Agent Sanchez also testified that: Pollack was driving the Buick; when asked about his citizenship, Pollack produced a Colorado driver's license; Pollack's hands were shaking when he produced the driver's license; the Buick appeared to be heavily loaded and riding lower in the rear end; Pollack refused to open the trunk when requested to do so and told Agent Sanchez that they needed a search warrant to look into the trunk; he was relatively sure that there was a load in the trunk of the Buick; they drove approximately two miles back to the checkpoint to open the trunk because it was "not real safe" to open the trunk on the off-ramp where Pollack had been stopped; once back at the checkpoint the three suspects, including Pollack, were advised of their rights; when he opened the trunk he immediately detected the odor of marijuana.

On cross-examination, Agent Sanchez testified that: he had been a Border Patrol agent for a little over ten years and had been continuously stationed at the Truth or Consequences checkpoint; a lot of legitimate traffic travels on Highway 85; at that time of the day (3:00-3:45 a.m.), it is very unlikely to have a vehicle on Highway 85 but it is not unprecedented; the Border Patrol does not stop every vehicle; at that hour a very, very small percentage of traffic that is stopped on Highway 85 is legitimate traffic; he did not keep official statistics on stops and arrests; it was not decided to intercept the two vehicles prior to actually seeing them; the purpose of the lead car coming through the checkpoint is to determine if the checkpoint is open and to scout ways around the checkpoint; the vast majority of people that he stops who are American citizens are not the least bit nervous; Pollack related that the car belonged to someone else; it is common for a smuggler not to use his own vehicle; a check on the vehicle indicated that it was not stolen; the rear bumper of the car appeared to be noticeably lower than the front bumper; he did not hear any unusual sounds coming from the trunk; he did not smell any unusual odors coming from the trunk; when asked, Pollack said he had clothes in the trunk; he did not attempt to secure a search warrant.

Stephen Stevers, an investigator for Pollack, identified photographs of the Buick and testified that: the rear end of the Buick dropped only 3/8 " when fifty pounds of sand were loaded in the trunk; he could not detect that the car was lower when loaded with the sand; but for taking a measurement he would not have been able to determine that the car was 3/8 " lower after it was loaded with the sand; and he could not detect a difference in the appearance of the vehicle when, in addition to the sand in the trunk, counsel for Pollack (weighing approximately 130 pounds) also sat on the trunk.

Pollack testified that: his first contact with the Border Patrol agents on the day in question was between 3:00 a.m. and 4:00 a.m.; upon request, he gave Agent Sanchez his Colorado driver's license; neither Agent Sanchez nor Agent Carroll inquired about his citizenship; after Agent Sanchez asked for his driver's license, he (Agent Sanchez) asked Pollack to open the trunk of the car; he told Agent Sanchez he would open the trunk if they had a search warrant; Agent Sanchez got very angry and said that the car was going nowhere and that "I'm going to open the trunk one way or another;" he did not see the red truck in front of him before they were stopped; Agent Carroll asked him to get out of the car after which Agent Carroll frisked him down and asked him a lot of questions; he told Agent Carroll he was going to Colorado Springs and that he had clothes in the trunk of the car; he did not consent to the search of the trunk; he could not leave; he told Agent Carroll that he did not "know" the red pickup and that he thought it was the Border Patrol; when they got back to the checkpoint, Agent Sanchez got all hot and told him to park his car in a specific location; after he parked the Buick, he handed the keys to Agent Sanchez; once inside the Border Patrol office, they were read their "rights"; he understood his rights; when Agent Sanchez started to open the trunk, he (Agent Sanchez) stated that they did not need a search warrant, and that they had probable cause because Pollack was sneaking around.

Pollack also testified that: after Agent Sanchez opened the trunk, he opened a blue nylon bag (full of marijuana); after Agent Sanchez opened the nylon bag, he stated "now you're under arrest;" neither of the agents commented that the car looked like it was heavily loaded; he owned the blue nylon bag and the 27 pounds of marijuana inside it; there was no odor of marijuana when Agent Sanchez opened the trunk; the suitcase and marijuana probably weighed about 44 pounds.

Within its oral findings and conclusions, the district found: Highway 85 is a well-documented alien smuggling route; the two sensor hits reflected two vehicles were passing one right after the other; Agents Carroll and Sanchez decided to investigate the sensor hits based on Sanchez' ten years of experience and the fact that the two sensor hits occurred at 3:00 a.m. in an area famous for drug smuggling; Agent Sanchez observed that the vehicle appeared to be riding low in the rear; after Pollack refused permission to look in the trunk and insisted upon a warrant, Agent Sanchez believed that the car and pickup were involved in alien smuggling; when they returned to the checkpoint, Agent Sanchez detected an odor of marijuana; the actions of the agents were in keeping with a Terry stop because the circumstances of the hour, the two sensor hits, the red pickup in company with the Buick, gave them reasonable cause to believe that a crime had been committed; that the court's own view of Defendant's Exhibit A (photograph of the Buick) is that the car appears to sit low in the back. Thereafter, the court entered an order denying Pollack's motion to suppress.

On appeal, Pollack contends: (1) the stop was not based on reasonable suspicion; (2) the search was executed without probable cause; and (3) he was unlawfully detained after the initial stop.

I.

Pollack contends that the stop was not based upon reasonable suspicion. Pollack argues that although the government justifies the stop by contending that the red Datsun pickup was the scout vehicle, the record is not clear as to what happened to the two occupants of the red Datsun. Pollack maintains that there was no evidence linking the two vehicles or their occupants directly to each other and no conspiracy charges were filed against Pollack or the occupants of the Datsun pickup.

Pollack further argues that Truth or...