U.S. v. Alvarado-Ramirez, P-96-CR-59.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Citation975 F.Supp. 906
Docket NumberNo. P-96-CR-59.,P-96-CR-59.
PartiesUNITED STATES of America, Plaintiff, v. Oscar Gerardo ALVARADO-RAMIREZ, Defendant.
Decision Date23 January 1997
975 F.Supp. 906
UNITED STATES of America, Plaintiff,
Oscar Gerardo ALVARADO-RAMIREZ, Defendant.
No. P-96-CR-59.
United States District Court, W.D. Texas, Pecos Division.
January 23, 1997.

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G. Glen Roque-Jackson, Asst. U.S. Atty., Midland, TX, for Plaintiff.

Mike Barclay, Alpine, TX, for Defendant.

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FURGESON, District Judge.

Currently pending before the court is Defendant's Motion to Suppress. A hearing on the Motion was held in Pecos on December 15, 1996. Having considered the oral arguments, and the relevant case law, the court finds that the narcotics were seized in violation of Defendant's Fourth Amendment rights and as such cannot be introduced against him at trial.


On September 12, 1996, at 2:11 p.m.,1 Defendant, Oscar Gerardo Alvarado-Ramirez (Ramirez), legally entered2 the United States from Ojinaga, Mexico at Presidio, Texas. He proceeded north on U.S. Highway 67 to Marfa, which is about 55 miles away. About four miles south of Marfa on Highway 67 is a permanent Border Patrol checkpoint through which individuals must first pass before proceeding. Unlike many checkpoints near the United States/Mexico border in West Texas which are manned around the clock, this particular checkpoint is staffed on an irregular basis. It is only opened when at least two Border Patrol agents are present. At such times, incoming traffic is directed to stop by flashing lights, located some distance up the highway, and orange cones, formed to cause drivers to detour into the checkpoint station. The Marfa checkpoint consists of a trailer with an overhead canopy, a vehicle lift and a small storage building. On the day in question, United States Border Patrol Agent Rodney D. Hall (Agent Hall) was assigned to work the 2 p.m. to 10 p.m. shift conducting traffic operations on Highway 67. He arrived at the Marfa checkpoint, alone, at around 2:45 p.m. At that point, the station had been closed for about six hours. The cones had been removed from the road and traffic proceeded along Highway 67 without being detoured past the checkpoint trailer. Agent Hall parked his Border Patrol vehicle under the canopy facing traffic and observed the oncoming vehicles.

At around 3:05, Defendant's white Chevrolet pickup truck, displaying Chihuahua, Mexico license plates, passed by the checkpoint. As Defendant's truck passed by, Agent Hall noticed that Defendant did not reduce his speed3 nor make eye contract with the Agent. Agent Hall testified he found that to be doubly suspicious. First, according to the Agent's testimony, most locals who pass through the checkpoint, at the very least, make eye contact and wave to the agent parked beneath the canopy. Second, in Agent Hall's experience, approximately 80-85% of the throughcoming vehicles bearing Mexican license plates stop any time an agent is present at the checkpoint, even if the checkpoint is closed, and the drivers produce documents evidencing the legality of their visit.4 Since the Defendant did neither, Agent Hall decided to follow him down the highway. The speed of Defendant's vehicle could not have been a factor in the Agent's

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decision. As he began to follow Defendant, Agent Hall radioed the license plate number into Border Patrol Headquarters in an attempt to verify the time of Defendant's border crossing. Having been advised that it would take some time for his request to be processed, Agent Hall signaled for the Defendant to pull over onto the side of the road.

After both vehicles came to a complete stop, Defendant got out of his truck and began to walk toward Agent Hall. The Agent immediately directed Defendant to return to his vehicle, which he did. At the suppression hearing, Defendant testified that it was common practice in Mexico, when stopped, to get out of your car and to walk to the police car. When Agent Hall approached Defendant's vehicle, Defendant offered to shake hands. The Agent thought that Defendant's offer was out of the ordinary. Having found all of Defendant's papers in order, Agent Hall testified that he then asked Defendant for permission to search the vehicle. Defendant denies that he was ever asked for, or gave, permission for the search. Whatever may have been the case, Agent Hall proceeded with his inspection. He inspected the dashboard and the glove compartment, and then proceeded to the exterior. The Agent noticed that the truck was freshly painted. He testified that this was a common indicator of a concealed narcotics load. A propane tank was mounted in the bed of the truck. The Agent tapped the tank and did not hear anything suspicious. A gas tank, called a saddle tank, was mounted beneath the vehicle on the passenger side. As the Agent crouched down for a better look, he noticed a new screw and clamp on the filler hose going to the tank. The Agent then tapped the gas tank and heard a dull sound. To him, this was an indication that something solid might be concealed inside. At this point, Agent Hall asked the Defendant to follow him to the Border Patrol headquarters at Marfa, about four miles away, so that a drug sniffing dog could be called in to inspect the vehicle. Defendant agreed to do so.

When the two arrived in Marfa, Agent Hall was advised that the closest dog was in Alpine and could be brought to Marfa in about 25 minutes. Defendant agreed to wait. While everyone waited for the dog to arrive, Supervisory Agent Mark Kemp went out, tapped the saddle tank, and also heard a sound as if something solid was in the tank. The dog finally arrived and was allowed to go over the vehicle. The dog gave no alert and therefore did not indicate that there was any trace of narcotics in the truck. Rather than let Defendant proceed with his business or try to obtain a warrant for a more thorough search, Agent Hall asked Defendant if he would follow the Agent back to the check-point outside of Marfa, so that the pick-up could be raised on a lift and more thoroughly inspected. At no point during this entire time was the Defendant placed under arrest or read his Miranda rights. Defendant agreed to follow Agent Hall back to the checkpoint. Once the Defendant arrived at the checkpoint, he was placed in a holding cell while his truck was examined. Agent Hall testified that the Defendant was placed in a holding cell for his safety and the safety of the two agents inspecting the truck. The agents could not both inspect the truck and keep an eve on Defendant at the same time. There is conflicting testimony as to whether Defendant was actually locked in the holding cell. Defendant testified that he was. Agent Hall, the other hand, testified that he simply closed the door to the holding cell and left the keys in the door. Even then, he was not charged with anything nor read his rights. A further inspection of the vehicle showed that the bolts holding the tank in place were either missing or lose. The drug sniffing dog was again called to the vehicle. This time, the dog alerted to the saddle gas tank. A search of the tank then revealed 60.16 pounds of marijuana were secreted. Only then was Defendant formally arrested and charged with possession with intent to distribute and possession of marijuana in violation of 21 U.S.C. § 841(a)(1). Before outlining the arguments of the parties, it should be noted that both Agent Hall and the Defendant were courteous toward each other at all times. There is no indication at all that Agent Hall was ever threatening in any way toward the Defendant or that the Defendant was ever difficult in his dealings with Federal law enforcement officers. Both men acted

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with propriety and appropriateness in their personal dealings with one other.

Defendant argues that evidence of the marijuana should be suppressed because it was illegally obtained, in violation of Defendant's Fourth Amendment rights. The government has come back with a five-pronged response. First, it argues that the search was lawful because it was the result of a free and voluntary consent. Second, the search was lawful because it was supported by probable cause. Third, the search should be upheld because it was supported by reasonable suspicion. Fourth, the search should be upheld because it occurred at the "functional equivalent" of the border. Finally, evidence of the seized narcotics should be admitted under the "good faith" exception to the exclusionary rule. The court will address each of these points below, but not necessarily in that order.



The Fourth Amendment to the United States Constitution provides in pertinent part that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....

The Fourth Amendment bars only unreasonable searches and seizures. See United States v. Pierre, 958 F.2d 1304, 1308 (5th Cir.1992); United States v. Brignoni-Ponce, 422 U.S. 873, 877, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607, 614 (1975) (holding that the Fourth Amendment applies to seizures that involve only a brief detention short of traditional arrest); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The reasonableness inquiry is driven by a balancing of "`the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Pierre, 958 F.2d at 1308-09 (citing New York v. Class, 475 U.S. 106, 118, 106 S.Ct. 960, 968, 89 L.Ed.2d 81 (1986)); see also Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1983). However, the intrusiveness of the search is not measured so much by its scope as by whether it invades an expectation of privacy that society is...

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1 practice notes
  • Herrera v. State, 14-02-00620-CR.
    • United States
    • Court of Appeals of Texas
    • July 24, 2003
    ...there was reasonable suspicion to detain appellant in his vehicle on the evening in question. See United States v. Alvarado-Ramirez, 975 F. Supp. 906, 911 (W.D. Tex. We find that the totality of the circumstances demonstrate that McClinton had reasonable suspicion to detain appellant. McCli......
1 cases
  • Herrera v. State, 14-02-00620-CR.
    • United States
    • Court of Appeals of Texas
    • July 24, 2003
    ...there was reasonable suspicion to detain appellant in his vehicle on the evening in question. See United States v. Alvarado-Ramirez, 975 F. Supp. 906, 911 (W.D. Tex. We find that the totality of the circumstances demonstrate that McClinton had reasonable suspicion to detain appellant. McCli......

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