U.S. v. Barbin
| Citation | 743 F.2d 256 |
| Decision Date | 24 September 1984 |
| Docket Number | No. 84-2244,84-2244 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald Wayne BARBIN, Defendant-Appellant. Summary Calendar. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Lawrence A. Walsh, Brownsville, Tex., for defendant-appellant.
Daniel K. Hedges, U.S. Atty., James R. Gough, John P. Smith, Jack Wolfe, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.
Appeal from United States District Court for the Southern District of Texas.
Before WILLIAMS, JOLLY, and HILL, Circuit Judges.
Donald Wayne Barbin, defendant, in a two count indictment was charged with importing and possession with intent to distribute marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 952(a). Barbin filed a motion to suppress evidence from an alleged warrantless search and seizure of a motor vehicle and the sailboat it was towing which contained about 435 pounds of marijuana. After an evidentiary hearing, the district court denied the motion. Barbin thereafter pleaded guilty to the possession count. The importing count was dismissed on the government's recommendation. Barbin's plea was made pursuant to a plea bargain in which he reserved the right to appeal and challenge the district court's denial of the motion to suppress. Fed.R.Crim.P. 11(a)(2). Should he be successful on this appeal, he would then have the right to withdraw his plea. Id. Barbin has filed a timely notice of appeal contending that the search and seizure in question was unreasonable and in violation of the Fourth Amendment of the United States Constitution. After a review of the record, we conclude that the district court correctly disposed of Barbin's motion to suppress and that his conviction should be affirmed.
The following evidence was introduced at the suppression hearing. A United States Customs Patrol Officer testified that on December 5, 1983, at approximately 6:00 p.m., in a telephone call, he "received information from a previously reliable informant that a load of marijuana was to be smuggled into the United States at the Rio Grande River, mouth of the river." The officer testified that the specific information was that "a brown Jeep Cherokee was towing a trailer with a yellow sailboat on it, approximately 18 feet long." The driver of the motor vehicle was also described with specificity--as "a tall anglo male, wearing thick glasses, and [a] big, thick mustache." The marijuana, about 450 pounds, was said to be concealed in the hull of the sailboat. The vehicle and sailboat were said to be in the Matamoros, Tamaulipas, area of Mexico. Although the officer did not know from where the informant was calling, or how he had obtained his information, he thought that the informant generally was in Matamoros. The next morning at approximately 8:30 a.m., the officer received additional information in another telephone call from the informant that the vehicle and sailboat had reached the mouth of the river on the Mexican side of the border and a crossing of the border was to be made at this point. The officer had previously paid the informant for information and had used him about 15 times. Some of the information he received had proved incorrect, but about 10 or 12 arrests and convictions had resulted from the informant's information.
Two other customs officers, notified of the information received, were immediately dispatched to the mouth of the river area. They observed a brown Jeep Cherokee towing a boat traveling west on Highway 4 about 1 mile east of its intersection with Farm Road 1419. Highway 4 is a paved roadway that leads in an easterly direction from Brownsville, Texas, to a beach close to the mouth of the Rio Grande. To the north Highway 4 is bordered by the Port of Brownsville Ship Channel; to the south it is bordered by the twisting bends of the Rio Grande River. Traveling west on Highway 4 from the beach area, Farm Road 1419 is the first paved road encountered that extends in a north-south direction to the river. A stop of the vehicle and sailboat was made shortly thereafter, about 25 miles from the border. The vehicle, sailboat and Barbin, who was driving the vehicle, matched the description given by the informant. After the sailboat was taken to the gateway bridge and subjected to a dog sniffing test which was positive, the officers broke into the left side well and found the marijuana. The trailer and sailboat had sand on their undersides and the trailer tongue had "river type mud" on it. The sailboat also displayed where it had recently been repaired and freshly repainted in the area of the well. The sailboat also had the appearance of not having been used in a long time, contrary to Barbin's statement that it had been used the day before. A later investigation by officers at the mouth of the Rio Grande River disclosed tire tracks which matched the tires on the vehicle and "where a tongue of a trailer had been drugged [sic] across." The officers concluded that the sailboat and trailer were floated across the river at this point. The officers testified that they did not obtain a search warrant because they were conducting a customs border search.
"In general, warrantless searches and seizures are unreasonable under the fourth amendment except those falling within a few narrowly defined exceptions." United States v. Niver, 689 F.2d 520, 525 (5th Cir.1982), (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). The district court, in denying Barbin's motion for the suppression of evidence obtained in a warrantless search and seizure relied on two exceptions: (1) a warrantless search of an automobile based on probable cause and (2) a warrantless border search. Barbin contends that the facts of his case do not support either exception to the prohibition against warrantless searches and seizures.
"[P]olice officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the automobile that is as thorough as a magistrate could authorize by warrant." United States v. Mendoza, 722 F.2d 96, 100 (5th Cir.1983) (citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). This Court implied in Mendoza that if probable cause for a search exists, the officers need not apply for a warrant after detaining an automobile. See 722 F.2d at 102 n. 6; cf. United States v. Ross, 456 U.S. at 807 n. 9, 102 S.Ct. at 2163 n. 9, (constitutional warrantless seizure may permit immediate or subsequent warrantless search).
United States v. Phillips, 727 F.2d 392, 395 (5th Cir.1984), (quoting Illinois v. Gates, 103 S.Ct. at 2232). The Gates standard permits a finding of probable cause even if both the informant's personal reliability and the basis of the tip are not established since " 'a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.' " Id. (quoting Illinois v. Gates, 103 S.Ct. at 2329) (Emphasis in original).
In the present case, absolutely no indication of the basis of the informant's knowledge was given to the authorities. However, the customs officer contacted had previously relied on information from the informant in question about fifteen times resulting in several arrests and convictions. This Court has recognized the continuing applicability of the Aguilar-Spinelli precedents 1 in considering the basis of knowledge or the veracity aspect of a probable cause determination. United States v. Phillips, 727 F.2d at 395-96. As to an informant's veracity, which would be the major basis for a probable cause finding in this case, this Court has held that "[t]he naming of informants places no facts relevant to their trustworthiness before the magistrate." Id. at 396. Thus, it is not relevant that the informant was not identified. The credibility of an informant is most commonly assessed from the accuracy of previous tips. Id. For example, in United States v. Tucker, 526 F.2d 279, 281 n. 3 (5th Cir.), cert. denied, 425 U.S. 958, 96 S.Ct. 1738, 48 L.Ed.2d 203 (1976), an informant deemed reliable had provided at least ten tips which had proven accurate through other sources or independent information. If this Court were reviewing a magistrate's determination of probable cause, the present confidential informant's tip, given his past accuracy and the specificity of his present information, could provide a "substantial basis" for a conclusion of probable cause. See United States v. Phillips, 727 F.2d at 395.
Barbin argues that even if the search of the automobile was not unreasonable, searching the sailboat was unreasonable since it was neither a container nor an extension of a motor vehicle. The specific holding in Ross was that police officers, having probable cause to believe a...
To continue reading
Request your trial
-
U.S. v. Amuny
...certainty" that the vehicle has, in fact, crossed the international border. See Niver, 689 F.2d at 526; see also United States v. Barbin, 743 F.2d 256, 261 (5th Cir.1984); United States v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir.1984). We have described the reasonable certainty test t......
-
U.S. v. Espinoza-Seanez
...searched was in them when they left the border." United States v. Fogelman, 586 F.2d 337 (5th Cir.1978). See also United States v. Barbin, 743 F.2d 256, 261 (5th Cir.1984). Finally, there must be reasonable suspicion that criminal activity is occurring. Suspicion of criminal activity may ar......
-
U.S. v. Laury
...demonstrated the CI's veracity. The veracity of an informant is often assessed from the accuracy of previous tips. See United States v. Barbin, 743 F.2d 256, 259 (1984). Agent Garcia stated that the CI in the past had furnished reliable information to local law enforcement officers leading ......
-
U.S. v. Cardenas
...need not actually observe a border crossing in order for their search to be considered reasonable). For example, in United States v. Barbin, 743 F.2d 256, 261 (5th Cir.1984), this court concluded that it was "reasonably certain" that a sailboat and trailer had crossed the United States bord......