Moreno-Vallejo v. United States

• Citation: 414 F.2d 901
• Decision Date: 29 July 1969
• Docket Number: No. 26065.,26065.
• Parties: Jesus MORENO-VALLEJO, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

414 F.2d 901 (1969)

Jesus MORENO-VALLEJO, Appellant, v. UNITED STATES of America, Appellee.

No. 26065.

United States Court of Appeals Fifth Circuit.

July 29, 1969.

Eldon Lee Youngblood, Dallas, Tex., court appointed, for appellant.

Morton L. Susman, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for appellee.

Before GEWIN, McGOWAN^* and MORGAN, Circuit Judges.

McGOWAN, Circuit Judge:

This is an appeal from a conviction by the District Court, sitting without a jury, of two counts of federal narcotics violations. 21 U.S.C. § 174 and 26 U.S. C. § 4704(a). The only issue, both in the trial court and here, is whether the heroin admitted in evidence was illegally seized in violation of the Fourth Amendment. We do not think the District Court can be said to have erred in its ruling on the admissibility of this evidence; and, accordingly, we affirm the conviction.¹

I

On July 16, 1967, at 10:00 A.M., an informer known to U.S. Customs Agent James E. Riggs to be reliable, telephoned him and told him that appellant and a companion, Cecilia Martinez-Tullin, were going to Reynosa, Mexico, to purchase a quantity of marijuana or heroin. Shortly after noon, Riggs learned that they had crossed the border into Mexico.² The next day they returned, Martinez first and appellant later; and, on orders from Riggs, were not searched at the border. Agent Van Matre, who had been sent to the border crossing by Riggs to watch for appellant, observed appellant board a bus for McAllen, Texas, followed the bus, but did not see appellant disembark.

The following day, July 18, at 5:00 P.M. the same informer called Riggs again, and told him that appellant and Martinez were in a room at a McAllen motel, and that they either had smuggled narcotics into the country themselves, or were about to receive delivery of them either at the motel or near Raymondville, Texas. Riggs and Van Matre proceeded to the motel, where they observed appellant and Martinez drive away in an automobile at about 10:20 P.M. Riggs and Van Matre followed the automobile and observed it take a circuitous and back-country route toward Raymondville. Appellant did not stop near Raymondville, however but continued to Highway Route 77 and proceeded north towards Kingsville, Texas. As the car neared the Border Patrol Check Station on Route 77, Riggs saw it make a U-turn and come back down the road. Riggs pulled his car over to the side of the road. Shortly after appellant's car passed by Riggs, it made another U-turn and proceeded north to the Check Station.

At the Check Station appellant and Martinez were detained by four U.S. Customs Agents, including Van Matre but not including Riggs, although Riggs had been in radio communication with them and was present "to observe the reactions" of appellant and Martinez.³ The agents searched the occupants for weapons, and then searched the automobile "as much as possible as could be done by flashlights." Nothing was found, whereupon the agents took the occupants and their car to a service station in Kingsville, twenty-two miles up the road, where the lighting was better, for a full search of the car. Fifty grams of heroin were found in the left tail light of the car.

II

Although the District Court professed to believe that the search of appellant's automobile could, without regard to the legality of appellant's arrest, be justified by reference to the doctrine of "border search,"⁴ it addressed itself to the evidence in terms of the legality of the search as incidental to the arrest of appellant at the Border Patrol Check Station; and the Government defends the court's action on this appeal in the same terms. Appellant's challenge to the ruling is twofold. He asserts, first, that there was no probable cause to arrest at the time he was detained at the Check Station; and that, even if there were, the search of the automobile at the filling station in Kingsville was too remote in time and place from the arrest itself.

The argument with respect to the first of these propositions centers upon the asserted imprecision of the informant's tips as to when and where appellant actually came into possession of the narcotics.⁵ It stresses in this regard that it was reported that appellant might be taking delivery at a point near Raymondville, and yet, although Riggs and Van Matre trailed appellant to Raymondville, appellant admittedly did not stop there. Appellant claims that this circumstance nullified any probable cause that might have been accumulating up to that point.

The Government points out, however, that the tip was in the alternative, saying that appellant was getting the narcotics either at the motel in McAllen, or near Raymondville; and that Riggs, when he saw appellant drive away from the motel, thus had some reason for believing that the narcotics might then be in appellant's possession. This hypothesis was not destroyed, but only strengthened, by appellant's failure to stop at Raymondville. And, as the District Court found, it was all the more confirmed by appellant's curious hesitation about running the risk of going through the Border Patrol Check Station.

The otherwise illogical maneuvers appellant engaged in at that time are largely explainable only in terms of one who, knowing he has contraband narcotics in his possession, first hesitates to face customs agents and then decides that the wiser course is to rely on the artfulness of his concealment of those narcotics. This circumstance, coupled with what was known earlier of appellant's narcotics record, his reported purpose to go to Mexico to get narcotics, his actually making that trip. and his movements upon his return, combine to give a rational basis for belief that appellant was, at the time he drove up to the Check Station, engaged in illicit narcotics activity.

Appellant suggests, however, that, even if this is a fair statement of the knowledge possessed by Riggs, it was not Riggs that made the arrest. But we think that a fair reading of this record discloses that appellant's arrest was the result of a genuinely collective effort on the part of all the customs agents involved. The courts have had occasion to recognize that effective police work in today's highly mobile society requires cooperative utilization of police resources. They have, accordingly, asserted that knowledge in one sector of a police system can be availed of for action in another, assuming some degree of communication between the two. See, e. g., United States v. Pitt, 382 F.2d 322 (4th Cir. 1967), where the court said (at p. 324) of a contention that the arresting officer must have personal knowledge of the facts constituting probable cause:

* * * Probable cause, however, can rest upon the collective knowledge of the police, rather than solely on that of the officer who actually makes the arrest * * *" (Emphasis supplied).

See, also, Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833 (1966).

It was Riggs who got the first lead on appellant, but appellant's movements took him out of the so-called Valley Division, of which Riggs was in charge, and into the Corpus Christi Division, to which the agents at the Check Station were attached. But the record shows that Riggs had enlisted their help and had been in radio communication with them just prior to appellant's arrival at the Check Station. Riggs arrived at the Station at virtually the same time, and the fact that he confined his activities there to observation speaks more eloquently of his deference to geographical lines of authority than it suggests any substantive lack of connection between his presence and the action being taken with respect to appellant and his automobile. We are not prepared, any more than was the District Court, to regard the agents at the Check Station as engaged in a frolic of their...