U.S. v. Bueno-Vargas, 03-50381.

• Decision Date: 21 September 2004
• Docket Number: No. 03-50381.,03-50381.
• Citation: 383 F.3d 1104
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerardo BUENO-VARGAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

383 F.3d 1104

UNITED STATES of America, Plaintiff-Appellee, v. Gerardo BUENO-VARGAS, Defendant-Appellant.

No. 03-50381.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2004.

Filed September 21, 2004.

Timothy A. Scott, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Joseph C. Wyderko, U.S. Department of Justice, Criminal Division, Washington, DC, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-03-00317-JTM.

Before D.W. NELSON, KOZINSKI, and GRABER, Circuit Judges.

GRABER, Circuit Judge:

Does a customs agent's statement of probable cause to detain an arrested person pending further proceedings, made under penalty of perjury and sent to a magistrate judge by facsimile (fax), satisfy the Fourth Amendment's requirement of an "Oath or affirmation"? We answer that question "yes" and, accordingly, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On a Friday morning, border officials stopped Defendant Gerardo Bueno-Vargas when he attempted to enter the United States by car from Mexico at the Calexico Port of Entry in Imperial County, California. Defendant's car was referred to the secondary inspection area, where a detection dog alerted to the presence of drugs. Customs Service agents searched the car and found 34 packages of cocaine, weighing a total of 49.95 kilograms, secreted in the quarter panels.

Defendant waived his Miranda rights and then admitted that he knew that there were "drugs" in the vehicle, although he denied knowing their type or quantity. Defendant also admitted that he had been promised $1,500 for driving the car from Mexicali, Mexico, to Calexico, California. Defendant was arrested and taken to the Imperial County jail.

Later that same day, Customs Service Special Agent John Budrewicz signed a "Probable Cause Statement" and faxed it to a magistrate judge in San Diego. The statement, which Budrewicz declared under penalty of perjury was true, described the facts of Defendant's stop, search, and confession. At 6:10 p.m. on Friday, about fifteen minutes after Budrewicz sent his fax, the magistrate judge faxed back a signed finding of probable cause. Defendant was detained at the county jail over the weekend.

The following Monday, a different Customs Service agent personally swore out a complaint before a different magistrate judge. The second magistrate judge signed the complaint, and Defendant made his initial appearance before that magistrate judge the same day.

A grand jury indicted Defendant for importation of five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952 and 960, and for possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). In the district court, Defendant moved to dismiss the indictment on the ground that he was unlawfully detained for more than 48 hours over the weekend without a warrant and without a sufficient probable cause determination. The district court denied the motion.

Thereafter, Defendant entered a conditional plea of guilty to the drug importation count, and the government agreed to dismiss the distribution count at sentencing. Defendant reserved the right to appeal only one issue: whether the indictment should be dismissed because the weekend fax procedure for obtaining a finding of probable cause violates the Federal Rules of Criminal Procedure, the Due Process Clause, or the Fourth Amendment. The district court accepted the plea and sentenced Defendant to 50 months' imprisonment, to be followed by three years of supervised release. Defendant then filed this timely appeal.

STANDARD OF REVIEW

We review de novo a district court's denial of a motion to dismiss an indictment on constitutional grounds. United States v. Carreno, 363 F.3d 883, 887 (9th Cir.2004).

DISCUSSION

Defendant was arrested on a Friday, and a complaint against him was sworn out on the following Monday. In this appeal Defendant has waived the right to challenge the Friday arrest, the Monday complaint procedure, and the existence of probable cause; only the procedure that led to his detention over the weekend is properly before us.¹

When the government wishes to arrest a suspect, it ordinarily must obtain an arrest warrant. The Federal Rules of Criminal Procedure describe the usual manner of obtaining a warrant. First, a federal agent swears out a complaint under oath before a magistrate judge. Fed.R.Crim.P. 3.² If the complaint or the affidavits filed in support establish probable cause to believe that the suspect has committed an offense the judge must issue an arrest warrant. Fed.R.Crim.P. 4.³

In some circumstances, government agents may instead make warrantless arrests when they have probable cause to do so.⁴ When government agents effect a warrantless arrest, Federal Rule of Criminal Procedure 5(b) requires that a complaint be filed "promptly" in the district where the offense was allegedly committed. The Rules, then, require that a complaint be filed either before, or shortly after, a suspect is arrested.

If the government wishes to detain an arrested suspect pending further proceedings (rather than let the suspect go in the meantime), the Fourth Amendment adds an additional requirement to the government's tasks. In Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court held that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." When an arrest has been made subject to a warrant, a judicial determination of probable cause has already been made as a prerequisite to obtaining the arrest warrant. In the case of warrantless arrests, however, there has been no pre-arrest probable cause determination by a judicial officer. In such cases, the Court has held that to detain the suspect pending further proceedings, the government must obtain — within 48 hours of the arrest — a probable cause determination by a judicial officer. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).⁵ The 48-hour requirement of McLaughlin is distinct from Rule 5(b)'s requirement that a complaint be filed "promptly" after a warrantless arrest, although a complaint satisfying Rule 5(b), if filed within 48 hours of an arrest, also would satisfy the McLaughlin requirement.

In this case, because the formal complaint was filed on Monday morning, more than 48 hours after Defendant's arrest, it cannot satisfy the McLaughlin requirement.⁶ We therefore must decide whether the Friday fax exchange between Agent Budrewicz and the magistrate judge is sufficient to satisfy the 48-hour time constraint imposed by McLaughlin. Defendant argues that it is not, for two reasons: (1) it did not comply with the Federal Rules of Criminal Procedure, and (2) it lacked the "Oath or affirmation" required by the Fourth Amendment.

1. The Federal Rules of Criminal Procedure do not govern a McLaughlin probable cause determination.

The first question that we must decide is whether the Federal Rules of Criminal Procedure apply to a McLaughlin probable cause determination, when a suspect is arrested without a warrant and detained pending further proceedings. Defendant argues that the Rules do apply and that a Rule 3 complaint is the only mechanism the government may use to obtain a McLaughlin probable cause determination. The fax procedure used in this case does not satisfy the requirements for a complaint under Rule 3 because the Rule requires that a complaint be made "before a magistrate judge," and Budrewicz did not appear personally in front of a magistrate judge. Therefore, if the Rules apply, as Defendant contends, his detention was improper.

Contrary to Defendant's arguments, we find that there is no basis on which to conclude that the Federal Rules of Criminal Procedure relating to complaints underlying arrest warrants also cover the distinct procedure required by Gerstein and McLaughlin in order to detain an arrested person pending further procedures. Nothing in the Rules states, or even implies, that they are intended to govern such determinations. The Rules simply do not designate any particular procedure for obtaining a probable cause determination in order to detain a suspect, pending further proceedings, after a warrantless arrest.

Defendant contends that, because the Constitution requires a probable cause determination when the government seeks to detain a warrantless arrestee pending further proceedings, the Rules that deal with probable cause to arrest must govern both situations. Defendant seeks support for his position in the Supreme Court's decision in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). In Giordenello, the Court held that the Federal Rules of Criminal Procedure

must be read in light of the constitutional requirements they implement. The language of the Fourth Amendment ... of course applies to arrest as well as search warrants. The protection afforded by these Rules, when they are viewed against their constitutional background, is that the inferences from the facts which lead to the complaint "... be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 [(1948)]. The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the "probable cause" required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause.

Id. at 485-86, 78 S.Ct. 1245 (citations omitted) (discussing an earlier version of the Rules). Giordenello cannot do the work Defend...