969 F.2d 999 (11th Cir. 1992), 90-5333, United States v. Gonzalez

Docket Nº:90-5333.
Citation:969 F.2d 999
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Alfredo F. GONZALEZ, Defendant-Appellant.
Case Date:August 21, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 999

969 F.2d 999 (11th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Alfredo F. GONZALEZ, Defendant-Appellant.

No. 90-5333.

United States Court of Appeals, Eleventh Circuit

August 21, 1992

Page 1000

        G. Richard Strafer, Jose M. Quinon, Quinon & Strafer, P.A., Miami, Fla., for defendant-appellant.

        Dexter W. Lehtinen, U.S. Atty., Miami, Fla., Michael Walleisa, Linda Collins Hertz, Lynne W. Lamprecht, Asst. U.S. Attys., Ft. Lauderdale, Fla., for plaintiff-appellee.

        Appeal from the United States District Court for the Southern District of Florida.

        Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, MORGAN, Senior Circuit Judge.

        EDMONDSON, Circuit Judge:

        Defendant Alfredo Gonzalez entered a conditional plea of guilty to charges of conspiring to possess with intent to distribute and possessing with intent to distribute at least five kilograms of cocaine. He now appeals the district court's denial of his motion to suppress evidence, claiming law enforcement officers lacked probable cause for his arrest and that the search of his car was thus tainted by the illegal arrest. We REMAND the case to the district court for additional fact finding as explained below.

        FACTS

Testimony at the Motion to Suppress

        On September 28, 1989, Special Agent David Tinsley of the Drug Enforcement Administration (DEA) received the first in a series of tips about the cocaine smuggling activities of Alfredo Gonzalez and Ernesto Barrios. The telephone informants, a man and a woman, declined to identify themselves.

        Over the next few days, Agent Tinsley received seven or eight calls from the tipsters, who provided him with specific information including the names of Gonzalez, his wife, Jeanette Gonzalez, and Barrios; physical descriptions of the three conspirators; vehicle descriptions, including license plate numbers; the address and description of the Gonzalez residence; a description of a yacht called the "Royal Highness II"; estimations of the yacht's time and place of arrival at one of two south Florida marinas; the ultimate destination of the cocaine; and the method of shipping the cocaine in secret compartments built into the yacht. Tinsley verified names, addresses, licenses and vehicle descriptions. He also discovered that United States Customs suspected Gonzalez and Barrios of smuggling and that the Royal Highness II had been stopped and searched before, but no contraband had been found. He was unable to verify previous successful smuggling trips. The female tipster also told Tinsley that Mrs. Gonzalez would be travelling by yacht to the Bahamas to pick up cocaine, but Mrs. Gonzalez never made the trip. 1

        Based on the tips, Tinsley immediately set up surveillance of the Gonzalez' home in Coral Gables with assistance from the local police department. On the evening of October 1, 1989, the anonymous callers informed Tinsley that the yacht would be arriving at a marina in Fort Lauderdale with a shipment of 20 kilograms of cocaine

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and that Mrs. Gonzalez would be travelling to the marina in a blue Mercedes with a certain tag number to pick up Mr. Gonzalez and Barrios. The next day, as predicted, Mrs. Gonzalez left the house in the blue Mercedes and drove north to the Bahia Mar Marina in Fort Lauderdale. She drove at a high rate of speed, closely following a red Oldsmobile. Coral Gables Detective Jeffrey Vance followed the two cars. He had trouble getting into the marina, but approximately five to ten minutes after the Mercedes and Oldsmobile reached the marina, he saw the Oldsmobile leave.

        Detective Vance's delay entering the marina prevented him from seeing Mrs. Gonzalez for a few minutes after she parked the car. He next saw Mrs. Gonzalez when she stepped off the Royal Highness II and walked to another vessel, a demonstrator for sale by the marina. She climbed up to the demonstrator's flying bridge and sat watching for approximately ten or fifteen minutes. While she was there, Vance walked past and exchanged pleasantries with the woman, who replied in Spanish. 2 Mrs. Gonzalez eventually got down from the flying bridge and went back to the blue Mercedes.

        Vance then observed Mr. Gonzalez and Barrios inside the Royal Highness II. They left the vessel approximately fifteen minutes later, carrying three bags which appeared to be heavy. They took the bags to the trunk of the blue Mercedes, then drove south with Mrs. Gonzalez. On the return trip, the Mercedes drove carefully, never exceeding the speed limit.

        The car drove past the Gonzalez residence, then made a U-turn and pulled in. 3 Ten to twelve agents and detectives were waiting. Half were in uniform and half were in street clothes. The agents/detectives were armed; according to Gonzalez, they had guns drawn. Agent Tinsley, Detective Vance, and Detective Garcia approached the car. They identified themselves and told Gonzalez, his wife, and Barrios to get out of the car and sit on the ground apart from each other. According to Vance, "[the conspirators] were under arrest as soon as we got there."

        Tinsley and Garcia then walked with Gonzalez to the back of the car. They testified that they first advised Gonzalez of his Miranda rights; 4 then told him they believed narcotics were in the trunk and requested his consent to search the car. They explained the consent to search form in both English and Spanish. In response to Gonzalez' question, they told him that they would not search his house. 5 After reviewing the consent form, Gonzalez requested that Tinsley change the word "residence" to "vehicle" and write in "Blue Mercedes" with the appropriate license tag number. Once these changes were made, Gonzalez signed the form.

        Tinsley discovered three travel bags in the trunk. The bags contained coffee wrapped in dark plastic garbage bag material, and inside the coffee, cocaine. While Tinsley searched, Garcia asked Gonzalez how much was in the trunk. Gonzalez replied "twenty;" later measurements confirmed a total of twenty kilos, as predicted by the informants. Gonzalez, his wife, and Barrios were then taken to the police station.

        The grand jury indicted all three with conspiring to possess with intent to distribute and possessing with intent to distribute at least five kilograms of cocaine. Both Mr. and Mrs. Gonzalez filed a motion to suppress, which was denied following an evidentiary hearing. The district court decided that the officers had probable cause to believe there was cocaine in the trunk. The court also concluded that the consent to search had been freely, voluntarily, and intelligently given by Gonzalez without

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force, threats, or promises, and that Gonzalez had been advised of his Miranda rights at the scene of his arrest. Gonzalez entered a conditional plea of guilty, reserving his right to appeal the order denying his motion to suppress.

Testimony at the Trial of Jeanette Gonzalez

        Mrs. Gonzalez' first trial ended in a hung jury. She was acquitted on retrial. During Mrs. Gonzalez' second trial, Detective Vance acknowledged that he had made a mistake in his previous identification of Mrs. Gonzalez as the woman on the flying bridge. He stated that he had made his initial identification based upon his observations that the female who drove the Mercedes from the Gonzalez home to the marina had blond hair, the woman he had observed on the flying bridge of the boat at the marina had blond hair, Mrs. Gonzalez had been previously described by an anonymous caller as a blond latin female, and later, a blond Mrs. Gonzalez was arrested along with her husband and Barrios in the Mercedes where the cocaine was stored....

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