U.S. v. Alvarado Garcia, 85-1167

• Decision Date: 27 January 1986
• Docket Number: No. 85-1167,85-1167
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nicolas ALVARADO GARCIA, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 422

781 F.2d 422

UNITED STATES of America, Plaintiff-Appellee, v. Nicolas ALVARADO GARCIA, Defendant-Appellant.

No. 85-1167

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 27, 1986.

Rey Perez, Crystal City, Tex., Rogelio F. Munoz, Uvalde, Tex., for defendant-appellant.

Helen M. Eversberg, U.S. Atty., Michael R. Hardy, James E. Bock, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before GEE, REAVLEY and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Nicolas Alvarado Garcia (Alvarado) appeals from his convictions for conspiracy to possess marijuana with intent to distribute and for possession of marijuana with intent to distribute in violation of 21 U.S.C. Secs. 846 and 841(a)(1) respectively. We affirm.

I.

Viewing the evidence in the light most favorable to the Government the facts are as follows: ¹

On the evening of December 7, 1984, Border Patrol Agents Mendoza and Saucedo were parked just west of the city limits of Carrizo Springs, Texas, at the intersection of Highways 2644 and 277, about twenty-seven miles from the Mexican border. The agents were in a marked border patrol car with lights on top, and both were wearing their official green uniforms. Area lights and the moon illuminated the intersection so that the agents could clearly see approaching vehicles.

Eagle Pass and El Indio are border towns. Eagle Pass lies to the north of El Indio and northwest of Carrizo Springs, and El Indio is due west of Carrizo Springs. Running through Carrizo Springs in a general north and south direction is Highway 83, well known to drug enforcement agents as a thoroughfare for illegal aliens and narcotics. Highway 277 is the only roadway leading from the border town of Eagle Pass to Carrizo Springs and it intersects with Highway 83. Highway 2644 is the only paved route connecting the border town of El Indio with Carrizo Springs.

Around midnight, agents Mendoza and Saucedo observed a dump truck traveling on Highway 277 from the direction of Eagle Pass turn onto Highway 2644, the highway to El Indio. Approximately two hours later, between 2:00 and 2:30 a.m., the agents saw the same dump truck return from El Indio and approach the intersections of Highways 277 and 2644. The truck started to turn east onto Highway 277 in the direction of Carrizo Springs, Highway 83, and the parked patrol car. Although there was no other traffic, the truck "hesitated there" for about a minute, and then, instead of turning east, it headed west on Highway 277, back towards Eagle Pass. As the truck turned the agents saw that a tarpaulin secured by ties covered the truck bed.

Agents Saucedo and Mendoza had been apprised by their agent-in-charge, Agent Caber, that dump trucks were being used to haul illegal aliens and narcotics out of the El Indio area. Although no trucks had been apprehended in the six-month period following this report, a truck bed containing marijuana debris had recently been found in the El Indio area.

Agent Mendoza testified that he had seven years' experience in the border patrol in the Carrizo Springs area. His suspicions as to the truck were aroused by (1) his knowledge that dump trucks were being used to transport aliens and narcotics in this area, (2) his knowledge that there were no gravel or caliche pits in the area to explain the truck's presence, (3) the hour of night, (4) the proximity to the border, and (5) the truck's hesitation at the intersection. With the lights of the patrol car flashing, agents Mendoza and Saucedo followed the truck for approximately a quarter of a mile and then stopped it.

Agent Mendoza identified himself and asked the driver, Alvarado, if he was a U.S. citizen. Alvarado responded in the affirmative and produced his driver's license. He appeared nervous and stated that he was hauling gravel. Agent Mendoza stepped (or possibly climbed) onto the truck, shone a flashlight through a three-inch gap between the tarpaulin and the sidewall of the truck bed. Instead of gravel, the truck was filled with cardboard boxes sealed with masking tape. When Mendoza asked Alvarado what the boxes contained, Alvarado admitted that they contained marijuana, and turned around and put his hands behind his back to be handcuffed. Inside the cab the agents found two more cardboard boxes, similarly sealed. Upon opening one, the agents found that it contained what appeared to be marijuana. The agents arrested Alvarado and seized the truck and its contents. Upon arrival at the border patrol station Alvarado was informed of his rights for the first time. The agents then unloaded the truck and conducted an inventory search of the contents. All of the boxes contained marijuana.

Prior to trial, Alvarado filed a motion to suppress the evidence found in the truck he was driving. The district court denied this motion after conducting a special hearing. Alvarado then waived his right to a jury trial and stipulated that the trial court could use the evidence adduced at the suppression hearing, preserving, however, the right to challenge on appeal the court's ruling on his motion to suppress. Alvarado also stipulated that the substance seized by the authorities was marijuana. After finding Alvarado guilty, the court sentenced him to concurrent terms of five years on count one (21 U.S.C. Sec. 846) and two years on count two (21 U.S.C. Sec. 841(a)(1)), each with a special parole term of two years.

On appeal Alvarado contends that the stop and search of his truck were illegal. He further contends that the Government did not introduce sufficient evidence at trial of a conspiracy involving Alvarado, relying instead upon information brought to light at the suppression hearing and inadmissible at trial. The Government, for its part, suggests that a special parole term cannot be imposed upon conviction for a narcotics conspiracy and urges this Court to vacate the special parole term of two years imposed under count one.

II.

A. Legality of Stop

The fourth amendment applies to all seizures of the person including seizures that involve only a brief detention short of traditional arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-78, 20 L.Ed.2d 889 (1968). In the case of a roving patrol stop in a border area, the fourth amendment requires that "specific articulable facts" exist "together with rational inferences from those facts, that reasonably warrant suspicion" that the stopped vehicle was engaged in smuggling activities. Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. at 2582.

We find that there was ample justification for the stop. Reasonable suspicion to stop exists when "based upon the whole picture ... experienced Border Patrol agents ... could reasonably surmise that the particular vehicle they stopped was engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 421, 101 S.Ct. 690, 697, 66 L.Ed.2d 621 (1981). Agents Mendoza and Saucedo reasonably inferred from the absence of gravel-hauling activity in the area, the usual patterns of traffic there, the proximity to the border ², information about recent smuggling activities involving dump trucks, Alvarado's attempt to evade them, and the large storage capacity of the dump truck that Alvarado was importing either aliens or contraband into the United States. See Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. at 2581-82 (all six of the above factors enumerated by the Court as examples of artculable facts which may legitimately give rise to a reasonable suspicion).

Alvarado maintains that any inferences of smuggling made by the border patrol agents is negated by the fact that, when Alvarado approached the intersection for the second time, he turned back towards Eagle Pass, his original starting place. He also maintains that he did not hesitate at the intersection or give any indication of an intention to proceed east towards Carrizo Springs. The district court noted that Alvarado's version of the facts differed from the agents' but decided that Alvarado's account was not credible. We are not competent to overturn a decision of a district court based purely on credibility choices, Blunt v. Marion County School Board, 515 F.2d 951 (5th Cir.1975); N.L.R.B. v. J.M. Machinery Corp., 410 F.2d 587 (5th Cir.1969); we therefore uphold the district court's findings of fact. Furthermore, because we accept as true that Alvarado behaved at the intersection as though he would have turned towards Carrizo Springs but not for the agents' presence, we cannot in deciding whether there was a reasonable suspicion, accord significance to evidence that, in fact, Alvarado simply traveled back and forth between two border towns.

B. Legality of the Search

With respect to his claim that he was unlawfully searched, Alvarado maintains that his admission that there was marijuana in the truck was made without benefit of a Miranda warning and consequently could not provide a lawful basis for his subsequent arrest and the search of his truck. ³

Whether an individual is entitled to Miranda warnings depends on whether he is "in custody." See Berkemer v. McCarty, 468 U.S. 420, ---- - ----, 104 S.Ct. 3138, 3148-52, 82 L.Ed.2d 317, 332-36 (1984). This court approaches this issue on a case-by-case basis, United States v. Henry, 604 F.2d 908, 915 (5th Cir.1979); United States v. Warren, 578 F.2d 1058, 1070 (5th Cir.1978); rev'd in part on other grounds, 612 F.2d 887 (5th Cir.) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980); United States v. Carollo, 507 F.2d 50 (5th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 105 (1975), employing a four factor test: (1) whether there was probable cause to arrest; (2) whether the law enforcement officer had a...