U.S. v. Carrillo, 87-1023
| Citation | 902 F.2d 1405 |
| Decision Date | 08 May 1990 |
| Docket Number | No. 87-1023,87-1023 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jaime Lopez CARRILLO, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
John Trebon, Flagstaff, Ariz., for defendant-appellant.
Patrick Cunningham, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before WRIGHT, HUG and LEAVY, Circuit Judges.
Jaime Lopez Carrillo appeals from the order of the district court denying his motion to suppress evidence of his stop and subsequent arrest by law enforcement officials in a rural area approximately six hours after a light airplane carrying 700 pounds of cocaine had made a desert landing nine miles away. Carrillo argues on appeal that the police officers did not have reasonable suspicion to detain him, that he did not consent to the detention, that the detention exceeded the proper scope and length of a legitimate Terry stop, and that the officers did not have probable cause to arrest him. Carrillo also contends that reversal is required because a portion of the transcripts of the motion to suppress hearing were irretrievably lost. We affirm.
On June 7, 1986, at approximately 8:25 p.m., a United States Customs airplane detected an unidentified aircraft twenty-nine miles southwest of Tucson, Arizona, flying without lights at a low altitude. At approximately 9:00 p.m., the aircraft touched down at a dirt landing strip thirteen miles southwest of Casa Grande, Arizona, and four miles from Interstate 8. The plane landed in the desert in the dark.
The crew of the Customs plane observed the aircraft and four ground vehicles in the landing strip area through the means of an infrared radar detection system. Two ground vehicles were seen at either end of the landing strip and two additional ground vehicles were observed approaching the aircraft. Five to ten minutes later, two ground vehicles and the airplane departed, at which time the vehicles were intercepted by a U.S. Customs helicopter. The occupants of the four vehicles fled by foot into the desert. The government agents were unable to obtain a description of any of the fleeing suspects.
At approximately 11:45 p.m., agents from the Arizona Department of Public Safety, the U.S. Customs Service, the Pinal County Sheriff's Department and the Drug Enforcement Agency cooperated in conducting an extensive search for the suspects in the area surrounding the landing strip. The officials believed the suspects were running through the shrubbery and hiding under it in order to avoid detection by the Customs helicopter which was using a spotlight in an attempt to locate the occupants of the vehicles. 1
At 1:00 a.m. on June 8, 1986, Officers Knight, Gorski, and Renteria began a search of the general area in an unmarked police pick-up truck. The officers searched roads in the area of the airstrip, fanning out toward Casa Grande which is about 11.25 miles on a direct line from the airstrip. At approximately 2:50 a.m., the officers located Carrillo about nine and one-half air miles from the landing strip and one-half mile from Casa Grande city limits.
Deputy Knight of the Pinal County Sheriff's Department testified that he saw Carrillo come out from a crouched position behind a desert bush three to four feet high and flag down the unmarked vehicle after it had passed. The officers stopped the vehicle and backed toward Carrillo, who requested a drink of water and a ride to Casa Grande. The agents immediately identified themselves as police officers and began to question Carrillo concerning his presence in the rural, desert area in the middle of the night. Carrillo indicated that he had been "partying" with some acquaintances At the officers' request, Carrillo produced two drivers licenses, a duplicate and an original, showing Tucson, Arizona, as his permanent address. Carrillo indicated he was staying with his brother in Eloy, a small community several miles from Casa Grande. Carrillo told the three police officers that he had been unemployed for about one and one-half years. An American Express Card was noted in Carrillo's wallet. Carrillo was wearing tan corduroy pants, Reebock tennis shoes, a multicolored button down shirt, two gold chains and a ring made up of gold and diamonds.
and was later stranded after his pick-up truck broke down near a wash about ten miles away.
The officers reported that Carrillo was breathing hard and appeared exhausted. His clothes were soiled and torn. Fresh scratches were noted on his arms and neck. Four or five minutes after he first encountered the police officers, Carrillo reported that he had attempted to pay other persons that passed him along the roadway twenty dollars to take him into town. Carrillo reported that he had run into the desert after one such passerby had attempted to rob him.
The officers told Carrillo they would help him locate his vehicle and requested that he get into the back of the police pick-up, which he did. Carrillo was joined in the back by Officers Renteria and Knight. Carrillo did not object to the search for his vehicle, although he was never told he was free to leave. They then proceeded to search for the truck based on Carrillo's directions for about fifteen minutes with no success.
The search took them in a westerly direction and at 3:05 a.m., the officers contacted Sergeant Stine, eventually meeting him at 3:15 or 3:20 a.m. about five road miles from where Carrillo was originally discovered. Sergeant Stine asked Carrillo for identification, at which time he noticed a title transferred in blank to a BMW automobile in Carrillo's wallet. A telephone pager was also found on Carrillo's waist bearing a Tucson telephone number. Upon being appraised of the information learned by the other officers and upon having detected no odor or evidence of alcohol on Carrillo's breath, Sgt. Stine formally arrested him at 3:30 a.m. No statements were thereafter taken from Carrillo.
On June 10, 1986, a criminal complaint was filed against Carrillo in the United States District Court for the District of Arizona. A detention hearing was held before Magistrate Megella on June 16, 1986, wherein probable cause was found and Carrillo was detained. By indictment of July 2, 1986, Carrillo, Terence E. Larue, Melvin L. Cox, and Norman O. Sublett, Jr., were charged with possession with intent to distribute and conspiracy to possess with intent to distribute 700 pounds of cocaine. 2
Carrillo filed a motion to suppress evidence based on his arrest on June 8, 1986. The evidentiary hearing on that motion began on August 25, continued on August 27, and concluded on August 28, 1986. By written order on September 5, 1986, the district court denied Carrillo's motion to suppress. The court found that Carrillo's "condition, particularly the torn shirt, the dirt on his clothing and the state and extent of his exhaustion [were] more consistent with a much longer period of time in the desert than an effort to elude would-be robbers." The court also found that Carrillo's conduct in waiting four or five minutes before telling the officers of the attempted robbery was "more consistent with one trying to conjure a cover story for his presence in the desert under the circumstances in which the police found him rather than having been broken down and the victim of what he feared might be a robbery." The court concluded that when the officers stopped, Carrillo was under suspicion but not under arrest, that he consented to police assistance in the search for his truck, and that he was not formally arrested until 3:25 a.m. The court also found the stop was founded on reasonable suspicion and that Carrillo's subsequent arrest was supported by probable cause.
On October 21, 1986, the court reporter, Rosezell Huckaby, reported in open court that one complete audio tape of the suppression hearing had been lost. No court reporter, other than the tape recording, reported the suppression hearing. Carrillo thereafter moved to dismiss or in the alternative to preclude further witness testimony. Over Carrillo's objection, the district court allowed the government to supplement the record of the suppression hearing by recalling witnesses in order to reconstruct the lost testimony.
On November 11, 1986, a jury found Carrillo guilty on both counts of the indictment. On January 12, 1987, Carrillo was sentenced to two terms of twenty years to be served consecutively and a fine of $50,000. Carrillo thereafter timely appealed from his conviction and sentence.
Tape 2 from the afternoon of August 27, 1986, has been identified as the missing tape. The missing testimony is that of defense witness John Christian, Carrillo's investigator, taken from 3:43 p.m. to 4:19 p.m., and 4:50 p.m. to 5:00 p.m. (a total of forty-six minutes), and part of the direct examination of prosecution witness Sgt. Stine from 4:19 p.m. to 4:50 p.m. (a total of thirty-one minutes). Deputy Knight was also recalled during this period to confirm that he had marked Exhibit 2 in black ink. Trial counsel for Carrillo believes that Officer Renteria testified during this period, although this is disputed by the government.
After hearing evidence from the court reporter and both parties, and proposing a reconstruction of the missing testimony, the trial court denied Carrillo's motion to dismiss or in the alternative to preclude further testimony. Following the trial, the court permitted further testimony from Deputy Knight, Sgt. Stine, and John Christian, and also supplemented Stine's suppression hearing testimony with his trial testimony.
Carrillo argues that his conviction should be reversed because he has suffered significant prejudice on appeal due to the loss of the tape. Specifically, Carrillo contends he is prejudiced because: (1)...
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