U.S. v. Uricoechea-Casallas

• Decision Date: 05 May 1991
• Docket Number: URICOECHEA-CASALLA,D,No. 90-1717,90-1717
• Parties: UNITED STATES, Appellee, v. Jaimeefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 162

946 F.2d 162

UNITED STATES, Appellee, v. Jaime URICOECHEA-CASALLAS, Defendant, Appellant.

No. 90-1717.

United States Court of Appeals First Circuit.

Heard May 5, 1991.

Decided Oct. 11, 1991.

Norberto Colon, by appointment of the Court, for defendant, appellant.

Jose A. Quiles, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., and Ernesto Hernandez-Milan, Asst. U.S. Atty., were on brief for appellee.

CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and TORRES, ^* District Judge.

TORRES, District Judge.

This is an appeal by Jaime Uricoechea-Casallas ["Uricoechea"] of his conviction for various drug trafficking offenses and of the sentence imposed by the District Court. It requires us to consider the admissibility of evidence seized in a "customs search" of Uricoechea's luggage and whether Uricoechea was entitled to reductions in his offense level for "acceptance of responsibility" and/or for being a "minor participant" within the meaning of §§ 3E1.1(b) and/or 3B1.2(b) of the federal Sentencing Guidelines. For reasons hereinafter stated, we find Uricoechea's arguments to be frivolous and, therefore, affirm both his conviction and sentence.

BACKGROUND

Uricoechea is a resident of Bogota, Colombia. On October 28, 1989, he was a passenger on an Iberia Airlines flight from Bogota to Madrid, Spain via the Luis Munoz Marin International Airport in San Juan, Puerto Rico. When the plane landed in San Juan, the passengers disembarked and waited in the "in-transit" passengers' lounge. During that time, United States Customs Inspectors boarded the aircraft for the purpose of identifying suspicious luggage contained in the baggage hold. One item included in that category was an unusually heavy garment bag bearing a claim tag with Uricoechea's name on it.

The garment bag was removed from the aircraft and placed on the tarmac where inspectors probed the sides of the garment bag with a screwdriver. The probing disclosed a white powdery substance that a field test indicated was cocaine. The inspectors then cut open the sides of the bag and found approximately one thousand, one hundred and thirty-six grams of cocaine concealed in its metal frame.

When Uricoechea attempted to reboard the plane, he was arrested and searched. In his wallet, inspectors found $775 in cash and three packets containing a white powdery substance which field tests indicated was cocaine.

According to government agents, Uricoechea gave several different explanations for the presence of cocaine in his luggage. At the time of his arrest, he told the arresting officer that, due to financial difficulties, he had purchased the cocaine and planned to sell it in Spain to a woman known only as Isabelle. Two days later, Uricoechea told another agent that he was acting only as a courier and had instructions to deliver the cocaine to an unidentified person in Spain. At trial, Uricoechea denied making either of those statements and testified that he had been coerced into making the trip by a Mr. Meira who had loaned him money and asked him on several occasions to deliver cocaine to Spain. According to Uricoechea, Meira threatened Uricoechea's life if Uricoechea did not make the trip.

Uricoechea was convicted of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); importing cocaine into the customs territory of the United States in violation of 21 U.S.C. § 952(a); and bringing cocaine into the customs territory of the United States aboard an aircraft without listing it on the cargo manifest in violation of 21 U.S.C. § 955. The District Court imposed concurrent sentences of 78 months on each count.

Uricoechea now seeks to have his conviction vacated on the ground that the evidence found in his garment bag and wallet should have been excluded because it was seized pursuant to an unlawful search. Alternatively, he contends that the District Court erred in calculating his sentence by failing to award two level reductions in his offense level for acceptance of responsibility and for being only a minor participant as set forth in §§ 3E1.1(b) and 3B1.2(b) of the federal Sentencing Guidelines.

DISCUSSION

I. THE SEARCH OF THE GARMENT BAG

It is well established that routine border inspections do not violate the Fourth Amendment prohibition against unreasonable searches even when conducted without a warrant or probable cause. United States v. Garcia, 905 F.2d 557, 559-60 (1st Cir.1990); United States v. Braks, 842 F.2d 509, 511-12 (1st Cir.1988). It is equally well established that searches of passengers at Luis Munoz Marin Airport are border searches. Garcia, 905 F.2d at 559; United States v. Mejia-Lozano, 829 F.2d 268, 271 (1st Cir.1987); United States v. McKenzie, 818 F.2d 115, 117, 119-20 (1st Cir.1987).

Uricoechea does not challenge these principles. Instead, he advances two arguments in support of his contention that the search of the garment bag was illegal. First, he asserts that Customs Regulations do not authorize searches of luggage that is inside an aircraft's cargo hold. Second, he claims that, under the circumstances, agents were required to seek his consent before opening the bag. We find these arguments to be meritless.

The applicable Customs Regulation provides that "[a]ll persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection and search by a Customs officer." 19 C.F.R. § 162.6 (1990). Uricoechea argues that luggage that is still within the baggage compartment of an airplane is not "in the Customs territory of the United States." However, such an interpretation is inconsistent with both the language of the Regulations and our holding in United States v Franchi-Forlando, 838 F.2d 585 (1st Cir.1988).

In providing for searches "in the Customs territory of the United States," the Regulations merely limit the authority to search to certain geographical areas within the territorial jurisdiction of the United States. The Regulations define "Customs territory of the United States" to include "only the States, the District of Columbia and Puerto Rico." 19 C.F.R. § 101.1(e). Neither the Regulations nor common sense support the conclusion that containers located within those geographic areas are not "in the Customs territory of the United States" merely because they are stored in an aircraft or other vehicle. Indeed, the Regulations specifically allow inspectors to board an aircraft for the purpose of searching it. They provide that "[a] customs officer may stop any [v]ehicle and board any aircraft arriving in the United States from a foreign country for the purpose of examining the manifest and other documents and papers and examining, inspecting, and searching the vehicle or aircraft." Id. at § 162.5.

The fact that the container's ultimate destination was another country and that there was no intent to unload it in the Customs territory of the United States is inconsequential. In Franchi-Forlando we upheld a search of in-transit luggage under circumstances almost identical to those presented by the instant case. In so doing, we stated that 19 C.F.R. § 162.5 "allows searches of aircraft that stop in the United States customs territory only briefly and then travel elsewhere. Such aircraft may keep luggage subject to search in their holds, perhaps mixed with other packages or freight." Franchi-Forlando, 838 F.2d at 588 (emphasis added).

Uricoechea's argument that the agents were required to seek his consent to search before probing his garment bag is equally meritless. It is true that the Regulations applicable to passengers entering the United States forbid customs inspectors from opening baggage unless the owner refuses to do so. 19 C.F.R. § 148.21(a). However, in Franchi-Forlando we specifically held that regulation inapplicable to in-transit passengers. Franchi-Forlando, 838 F.2d at 587-88 (construing 19 C.F.R. § 148.21).

In short, it is clear that Uricoechea's garment bag was subject to search when his plane landed in San Juan and that, under the circumstances, customs inspectors were not required to obtain his consent before opening it.

II. THE SEARCH INCIDENT TO ARREST

Uricoechea also challenges the admissibility of the cocaine found in his wallet on the ground that it was seized pursuant to an unlawful arrest. Specifically, he contends that customs agents lacked probable cause to arrest him.

We reject that contention for two reasons. First, the record clearly demonstrates the existence of probable cause to arrest Uricoechea. As we said in United States v. Figueroa, 818 F.2d 1020 (1st Cir.1987), the test is "whether, at the moment the arrest was made, ... the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense." Id. at 1023 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Probable cause must be evaluated in light of the totality of circumstances. Moreover, in order to demonstrate the existence of probable cause, the government need not present the quantum of proof necessary to convict. United States v. Maguire, 918 F.2d 254, 258 (1st Cir.1990) (citing Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983)); United States v. Jorge, 865 F.2d 6, 9 (1st Cir.1989)).

If an arrest is lawful, the arresting officers are entitled to search the individual apprehended pursuant to that arrest. United States v. Leal, 831 F.2d 7, 10 (1st Cir.1987). The permissible purposes of such a search include preservation of evidence, Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), and seizure of destructible contraband, United States v. Bautista, 731 F.2d 97, 99 (1st Cir.1984).

In this case, the agents clearly had probable cause to arrest...