U.S. v. Barbee

• Decision Date: 01 July 1992
• Docket Number: 90-2137,Nos. 90-2131,90-2132,s. 90-2131
• Parties: 36 Fed. R. Evid. Serv. 233 UNITED STATES of America, Plaintiff-Appellee, v. Gary Ray BARBEE and Juanita Elizabeth Barbee, also known as Juanita Elizabeth Lopez-Ayon, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1026

968 F.2d 1026

36 Fed. R. Evid. Serv. 233

UNITED STATES of America, Plaintiff-Appellee, v. Gary Ray BARBEE and Juanita Elizabeth Barbee, also known as

Juanita Elizabeth Lopez-Ayon, Defendants-Appellants.

Nos. 90-2131, 90-2132, 90-2137.

United States Court of Appeals, Tenth Circuit.

July 1, 1992.

Presiliano Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Tara C. Neda, Asst. U.S. Atty., on the brief), Albuquerque, N.M., for plaintiff-appellee.

Charles Louis Roberts, El Paso, Tex., for defendants-appellants.

Before LOGAN and BRORBY, Circuit Judges, and CARRIGAN, District Judge. ^*

LOGAN, Circuit Judge.

Defendants Gary Barbee and Juanita Barbee appeal their convictions, following a jury trial, for possession with intent to distribute less than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and two counts of carrying or use of a firearm during a drug trafficking transaction, in violation of 18 U.S.C. § 924(c)(1).

On appeal defendants contend that the district court erred in (1) denying defendants' motion to suppress, (2) sustaining hearsay objections, (3) permitting opinion testimony of expert witnesses, (4) failing to submit a requested instruction regarding guilt by association and in allowing a "conscious avoidance of knowledge" instruction; and (5) that the defendants' convictions are not supported by sufficient evidence.

On an evening in February 1990, United States Border Patrol agents at the Truth or Consequences, New Mexico, checkpoint detected defendants' car traveling north on old Highway 52, a commonly used alien and drug smuggling route. When an agent put his high beam lights on defendants' car, he saw the passengers in the back seat crouch down out of sight. The agent proceeded to make an investigative stop and discovered that the back seat passengers were Mexican nationals who did not have immigration documents. The agent led defendants back to the Truth or Consequences checkpoint and arrested them for alien smuggling. At the checkpoint, a "sniffer" dog alerted on the trunk of defendants' car, and after agents removed the luggage from the car, the dog alerted on two specific pieces of luggage. In the luggage, agents found a semiautomatic machine pistol, large amounts of cash, and 35.9 grams of ninety-six percent pure cocaine. The agents also recovered a second weapon that defendant Gary Barbee discarded out the window en route to the checkpoint.

I

A

Defendants argue that the agent's stop of their vehicle was without reasonable suspicion, and therefore any evidence obtained from the stop should be suppressed. We review the district court's findings at a suppression hearing applying a clearly erroneous standard. United States v. Werking, 915 F.2d 1404, 1406 (10th Cir.1990). "The standard of review for denial of a motion to suppress is clear--the findings of fact must be accepted by the court unless clearly erroneous. If findings are not made, this court must uphold the ruling if there is any reasonable view of the evidence to support it." United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984).

In determining whether reasonable suspicion exists to justify stopping a vehicle, a court must consider the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); United States v. Pollack, 895 F.2d 686, 689-90 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 520, 112 L.Ed.2d 532 (1990). A court may appropriately "consider the characteristics of the area in which [agents] encounter a vehicle[,] [i]ts proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic." United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975). The behavior of persons in the car is also relevant. Id. at 885, 95 S.Ct. at 2582 (attempts to hide relevant); United States v. Leyba, 627 F.2d 1059, 1063 (10th Cir.), cert. denied, 449 U.S. 987, 101 S.Ct. 406, 66 L.Ed.2d 250 (1980). An agent's belief that passengers are " 'slouching down' to avoid detection" may create reasonable suspicion. Leyba, 627 F.2d at 1061, 1063.

In the instant case, the vehicle was traveling northbound on a highway known to be commonly used by alien and drug smugglers because it avoids the Truth or Consequences border checkpoint; the vehicle had out-of-state, Texas license plates; it was traveling in the evening, after dark; the time of the year was February, a month when typically little traffic travels that road; there were several occupants in the car; and when the agent's headlights lit up the car the passengers in the back seat crouched down. We conclude that these factors support a finding of reasonable suspicion to stop the vehicle. See Pollack, 895 F.2d at 690 (night travel, at hours when travel is unlikely on a particular road, on a "well-documented alien smuggling route," among other things, established reasonable suspicion); Leyba, 627 F.2d at 1063-64 (passengers apparently slouching to avoid detection, traffic patterns on particular highway and time of day established reasonable suspicion); id. at 1064 (out-of-state plates even from a nearby state are "entitled to some limited consideration because [the agent] did not recognize the vehicle as local traffic from the area.").

Our holding is not in conflict with United States v. Monsisvais, 907 F.2d 987 (10th Cir.1990), a case involving the same stretches of highways in which we reversed a district court's denial of a motion to suppress. ¹ Although there are many similarities between the two cases, Monsisvais emphasized the inadequacy of the evidence in the record:

[T]he record is silent as to the characteristics of the area in which the vehicle was encountered, the proximity of the area to the border, the usual patterns of traffic on the particular road and information about recent or expected illegal immigrant activity in the area. Additionally, the record does not provide details of the agent's previous experience with alien traffic beyond Agent Goad's suggestions that "sometimes" alien smugglers use pickups with camper shells and "sometimes" they travel Highway 85. As such, the record fails to provide the "whole picture" necessary to justify the stopping of this heavily loaded pickup truck on this road at this time of day.

Id. at 992.

The record in the instant case could have been stronger but is not as incomplete as in Monsisvais. The record contains testimony and the qualifications of two different agents with experience in the area. They explained the location of the road, ² the typical nature of the traffic at that time of year and that time of day on old Highway 52, and their experience with alien and drug smugglers. Also important is that the agent making the stop observed the passengers sinking down in an apparent effort to avoid detection; such behavior is suspicious conduct not clearly susceptible to unsuspicious interpretations, unlike passengers merely avoiding eye contact, turning their heads away from a light, or shielding their eyes. ³

On the record before us, considering the passengers' conduct, the usual traffic patterns and the characteristics of old Highway 52, the investigative stop was proper.

B

Defendants also argue that the search of their briefcase, which contained the cocaine, was without valid consent and improper. The government, however, does not base the validity of its search on consent, but rather argues that the existence of probable cause to search the vehicle and its contents made the warrantless search of the luggage reasonable under the automobile exception. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Supreme Court held that "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id. at 825, 102 S.Ct. at 2173. Accordingly, officers with probable cause to search a lawfully stopped vehicle "may conduct a probing search of compartments and containers within the vehicle." Id. at 800, 102 S.Ct. at 2160.

The Supreme Court recently reaffirmed the validity of the automobile exception in California v. Acevedo, --- U.S. ----, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). Police may search containers found in an automobile "without a warrant if their search is supported by probable cause." Id., 111 S.Ct. at 1991. Defendants do not argue that the government did not have probable cause to search the automobile or the luggage in the automobile for documents regarding transportation of illegal aliens. Moreover, when the trained narcotics detection dog alerted on the vehicle and specific pieces of luggage, the agents unquestionably had probable cause to search the luggage. See, e.g., United States v. Morales-Zamora, 914 F.2d 200, 205 (10th Cir.1990). Once the agents had probable cause to search the luggage carried in the vehicle, under the automobile exception no warrant was necessary. Id. at 205-06. ⁴ Thus, the district court properly denied defendants' motion to suppress.

II

Defendants allege error in the district court's exclusion of testimony they offered to which the government objected as hearsay. We review evidentiary rulings under an abuse of discretion standard. United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988). Defendants assert that the government's hearsay objections should not have been sustained because the evidence was offered to show state of mind and not for the truth of the statements. This argument, however, was not raised in the district court and therefore is waived. Objections to evidentiary rulings must be raised in the district court to allow the judge to consider the objections and take corrective action. See United States v. Mitchell, 783 F.2d 971, 975-76 (10th Cir.) cert. denied, ...