U.S. v. Boruff

• Decision Date: 31 July 1990
• Docket Number: No. 89-1903,89-1903
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Othel BORUFF, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 111

909 F.2d 111

UNITED STATES of America, Plaintiff-Appellee, v. James Othel BORUFF, Defendant-Appellant.

No. 89-1903

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

July 31, 1990.

Rehearing Denied Sept. 11, 1990.

Robert W. Ritchie, Ritchie, Fels & Dillard, Knoxville, Tenn., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., James Blankenship, Asst. U.S. Atty., Austin, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, JOLLY and JONES, Circuit Judges.

CLARK, Chief Judge:

I. Introduction.

James O. Boruff (Boruff) appeals his conviction on conspiracy to possess and possession of more than 50 kilograms of marijuana with intent to distribute. 21 U.S.C. Secs. 841(a)(1), 846. We affirm.

II. Facts.

A. Background.

Boruff purchased a new Chevrolet pickup truck to use in smuggling marijuana from the Mexican border into Texas. Russell B. Taylor (Taylor), a co-conspirator, accompanied Boruff to make the purchase. Boruff selected a heavy-duty bumper to install on the truck and gave the salesman $2,000 as a downpayment. Boruff later bought two cashiers checks bearing Taylor's name to pay the balance of the purchase price. Boruff instructed the salesman to put the title in Taylor's name. Boruff and Taylor had agreed that appearances would be best served by putting Taylor's name on all documents relating to the truck, since Taylor would be driving the truck for the smuggling operation.

Boruff and Taylor flew to Dallas, Texas to obtain automobile insurance for the truck and a Texas driver's license for Taylor. The truck's registration and insurance were placed in Taylor's name. Boruff later purchased a camper top for the truck, listing Taylor's name on the invoice. Boruff also installed a grill and bumper guard, a CB radio, and fog lights on the truck. Boruff and Taylor understood that if the truck was ever sold, Boruff would receive the money.

Boruff arranged to have his girlfriend, Brenda Lawless (Lawless), rent a car for him, which he planned to use in the smuggling operation. Lawless rented a white Lincoln Towncar in her own name and turned it over to Boruff. The standard rental agreement signed by Lawless provided that only she would drive the car and that the car would not be used for any illegal purpose. Boruff was aware of these restrictions when he took possession of the vehicle. Boruff placed a CB radio in the glove compartment of the car and a magnetic antenna on its roof.

B. The Smuggling Operation.

Taylor and Boruff traveled toward the Mexican border on Highway 385 south of Midland, Texas. Taylor drove the pickup truck, and Boruff drove the rental car. The two maintained contact by CB radio. At one point, Border Patrol Agent Newberry (Newberry) noticed the two vehicles traveling approximately 100 yards apart on the highway. He observed that the two vehicles were traveling at the same speed, bore Texas license plates, and contained no one else but the drivers. His view through the windows of the camper top was unobstructed. Although his suspicions were not then aroused, Newberry made a mental note of the vehicles because they fit a "smuggler" pattern common to the area.

Taylor and Boruff subsequently left the truck unattended on the United States' side of the Rio Grande river. When they returned, the truck had been loaded with marijuana as Boruff had arranged. Boruff and Taylor covered the marijuana with a tarpaulin and placed camping gear on top of it.

The next morning, Taylor and Boruff traveled northbound on Highway 385. The two vehicles passed Agent Newberry, who was traveling southbound in a Border Patrol vehicle. As Boruff passed, Newberry observed him put something to his mouth "as though it was a microphone" and noticed the CB antenna on top of Boruff's car. Newberry also saw that the same truck he had seen the previous day was trailing Boruff, separated only by a tour bus. Newberry decided to make a U-turn and follow the vehicles.

After spotting the Border Patrol vehicle, Boruff made a U-turn southbound to see whether the Border Patrol vehicle would pursue them. Boruff passed the Border Patrol vehicle, which was now traveling northbound in pursuit of the pickup truck. Agent Newberry, fearing that Boruff would get away, contacted another Border Patrol agent, Harris Clanton (Clanton), and instructed him to stop Boruff's car. Boruff made a second U-turn and traveled northbound, hoping to catch up to the Border Patrol vehicle and divert attention away from the pickup truck.

C. The Searches, Seizures, and Arrests.

Agent Newberry pulled up behind the pickup truck and noticed the camping gear riding high in the camper. Newberry pulled along side of the truck and signalled Taylor to stop. Newberry approached the truck and asked Taylor if he would mind opening the camper top. Taylor complied, exposing the camping gear. Newberry opened the truck's tailgate and discovered 591 pounds of marijuana. Taylor was placed under arrest.

In the meantime, Agent Clanton had been pursuing Boruff but had not yet stopped him. As Boruff approached the point where the pickup truck was stopped, he saw agent Newberry standing in the road motioning for him to stop. Newberry noticed that the CB antenna was no longer on the roof of Boruff's car but was in plain view in the back seat. After Boruff stopped, he was placed under arrest and read his Miranda rights. The agents subsequently found in the car a walkie-talkie radio identical to one recovered from the pickup truck, a CB radio, the CB radio antenna, $4,700 in United States currency, and some of Boruff's personal effects.

As Agent Clanton drove Boruff to the Border Patrol station, Boruff denied having any knowledge of Taylor, the truck, or its contents. Clanton allowed Boruff to place a call to his attorney, who was out of the office. The attorney called back fifteen minutes later. Boruff proceeded to describe the events leading up to his arrest, in front of Clanton. Clanton later testified at trial that during the first half of the telephone conversation Boruff used "we" and "us" in describing the day's events while halfway through the conversation Boruff began to use the singular "I."

D. Prior Proceedings.

Boruff and Taylor were indicted for conspiracy to possess and possession of more than 50 kilograms of marijuana with intent to distribute. 21 U.S.C. Secs. 841(a)(1), 846. They moved to suppress the evidence on the grounds that the search of the pickup truck and the rental car took place without warrant or reasonable suspicion in violation of the fourth amendment. The district court held a suppression hearing, which consisted almost entirely of Agent Newberry's testimony concerning the searches and seizures. After the hearing was over, the government filed a belated answer to the defendants' suppression motion, challenging Boruff's fourth-amendment standing to contest the search of the pickup truck and the rental car. The district court concluded that the agents had no reasonable suspicion to stop or search the vehicles and granted the defendants' motion to suppress.

On appeal, this court affirmed the suppression order as to Taylor but reversed and remanded as to Boruff. The court concluded that Boruff had no standing to contest the search of the pickup truck because "Boruff had neither a proprietary nor a possessory interest in Taylor's truck." United States v. Boruff, No. 86-1175, slip op. at 9 (5th Cir. Apr. 27, 1987) [818 F.2d 863 (Table) ]. The court did not rule on Boruff's standing to challenge the search of the rental car.

E. The Present Proceedings.

Boruff subsequently filed a motion to establish standing in the pickup truck and the rental car. He explained that he had not presented any evidence to establish standing because the government had not given notice prior to the suppression hearing that it would make standing an issue. The district court held an evidentiary hearing, and Boruff presented evidence concerning his interest in the pickup truck.

The district court denied Boruff's motion to suppress, concluding that he had no legitimate expectation of privacy in the pickup truck or the rental car and therefore had no standing to challenge the searches. Boruff was tried by jury and convicted on both counts of the indictment. The district court sentenced Boruff to ten years' imprisonment, a three-year term of special parole, and $100 in special assessments.

Boruff now appeals, contending that the district court erred in denying his standing to challenge the search of the truck and the rental car. He also argues that he should not have been tried on the superseding indictment, that the district court erroneously conditioned the giving of a requested jury instruction on a waiver of his right to remain silent, and that the court erred in allowing Agent Clanton to testify concerning Boruff's conversation with his attorney. We affirm.

III. Analysis.

A. Standing.

The district court may not suppress evidence under the fourth amendment unless the defendant establishes that an unlawful search or seizure violated his own constitutional rights. United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2443, 65 L.Ed.2d 468 (1980). "[T]he defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party." Id. (Emphasis in original). The fourth amendment does not protect merely subjective expectations of privacy but only those "expectation[s] that society is prepared to recognize as 'reasonable.' " Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967).

1. The pickup truck

Boruff argues that he had a legitimate expectation of privacy in the pickup truck because (1) he was the equitable owner of the truck and had a possessory interest in it, (2) he exercised joint control over the truck...