U.S. v. Carreon

• Decision Date: 18 April 1989
• Docket Number: No. 88-2002,88-2002
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Enrique CARREON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1436

872 F.2d 1436

UNITED STATES of America, Plaintiff-Appellant, v. Enrique CARREON, Defendant-Appellee.

No. 88-2002.

United States Court of Appeals Tenth Circuit.

April 18, 1989.

David Williams, Asst. U.S. Atty. (William L. Lutz, U.S. Atty. and Joe M. Romero, Jr., Asst. U.S. Atty., on the briefs), Albuquerque, N.M., for plaintiff-appellant.

R. Morgan Lyman, Las Cruces, N.M., for defendant-appellee.

Before HOLLOWAY, Chief Judge, and BARRETT and LOGAN, Circuit Judges.

BARRETT, Senior Circuit Judge.

The United States seeks reversal of the district court's order granting defendant-appellee Enrique Carreon's (Carreon) Motion to Suppress evidence (approximately 50 kilograms or some 101 pounds of marijuana) found in his pickup truck by United States Customs Inspector John Gordon (Gordon) during a search conducted at the Antelope Wells, New Mexico, Customs Station located at the border between the United States of America and the Republic of Mexico.

The search conducted by Gordon on February 27, 1988, resulted in discovery of the marijuana secreted inside a compartment located in the camper wall of Carreon's pickup truck. Thereafter, Carreon was indicted, charged with importing into the United States less than fifty kilograms of marijuana in violations of 21 U.S.C. Sec. 952(a), 21 U.S.C. Sec. 960(a)(1) and 21 U.S.C. Sec. 960(b)(4), and with possessing less than fifty kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. Sec. 841(b)(1)(D).

Prior to trial, Carreon filed his Motion to Suppress the evidence. In his motion, Carreon recognized that the government has the right to conduct routine border searches to control the movement of people and goods across our national boundaries, but he contended that "[a] 3 1/2 hour detention and a drilling into the truck violates the standard of reasonableness under the Fourth Amendment" and "[t]hat reasonableness is determined by weighing the warranted suspicion of the border official against the offensiveness of the intrusion." (R., Vol. I, Tab 11, p. 2).

The Evidentiary Hearing and Decision

An evidentiary hearing was held on Carreon's motion on May 9, 1988, pursuant to Rule 12(b)(3), Fed.R.Crim.P. The government, in apparent recognition that it was obliged to carry the burden of proof on the reasonableness of Gordon's search and seizure actions, offered the testimony of Mr. Gordon. Counsel for the defendant did not cross-examine Gordon and he did not call the defendant or other witnesses. The defendant offered no evidence.

The undisputed facts based upon Customs Inspector Gordon's testimony follow. At approximately 10:00 a.m. on February 27, 1988, Carreon drove his 1973 Chevrolet pickup truck, with attached camper, into the United States Customs Service station located at Antelope Wells, New Mexico, on the border between the United States of America and the Republic of Mexico. Customs Inspector Gordon, the sole officer at the station, met the vehicle. Accompanying Carreon were two other passengers, a lady and a child. In accordance with normal procedures, Gordon, who had served sixteen and one-half years as a customs inspector, asked Carreon to declare any property he was bringing into the United States. Mr. Carreon declared some clothing contained in a bag, and upon inquiry he declared United States citizenship and residence in the State of California.

Officer Gordon, again in keeping with normal procedure, then asked Mr. Carreon to step out of the vehicle so that he (Gordon) could inspect the vehicle. Gordon had determined to conduct a good inspection of the vehicle because he noticed that Mr. Carreon was nervous. Gordon stated that when he addressed Carreon, he looked away and that Carreon was shaking when he handed Gordon his documents.

Gordon stated that during the course of his service as a customs inspector at various border "ports" he had made approximately five hundred narcotics seizures similar to that effected in this case.

Gordon next requested that the lady and child remove from the pickup so that he could conduct the inspection. Gordon accompanied the lady and child to the nearby customs station after calling his wife over from their house trailer located about forty feet from the station. Gordon asked his wife to give the lady a pat down search to determine if she possessed any weapons and then to keep an eye on them while he (Gordon) conducted the vehicle inspection.

Gordon observed that the nuts on each of the six bolts, which held the camper shell on the truck, were shiny, indicating the nuts had been recently removed. He next observed that the front part of the camper shell was very thick, containing a wide space. Gordon, with the use of a coathanger, determined that the top part of the camper shell was hollow. He then thumped around the bottom portion of the camper shell while on his knees inside the camper and determined that it was solid. Officer Gordon stated that he then knew that there was something in the lower portion of the compartment. This colloquy followed:

Q. MR. ROMERO (Assistant U.S. Attorney) Had you discovered in previous searches of other vehicles similar compartments?

A. Well, I ...

MR. LYMAN (Counsel for Mr. Carreon): I object, Your Honor ...

THE COURT: Pardon me?

MR. LYMAN: Relevance as to previous searches.

THE COURT: Sustained.

(R., Vol. II, p. 8).

Officer Gordon, after detecting that the bottom portion of the camper compartment was solid, escorted Mr. Carreon to the nearby station and placed him in a lock-up detention room for safety reasons and to prevent Carreon's escape to the nearby border. Gordon then obtained his small electric drill, plugged it in on the outside of the station and proceeded to drill a hole in the lower portion of the compartment. Gordon testified that he then detected a substance, which he believed looked and smelled like marijuana residue, come out of the compartment. Again, the following colloquy occurred:

MR. LYMAN: We would object to that and request that it be stricken from the--

THE COURT: Sustained. It will be stricken.

Id at p. 12.

Further inspection revealed that the secret compartment contained 101 pounds of marijuana. Carreon was placed under arrest at approximately 10:55 a.m. on February 27, 1988.

Immediately following Officer Gordon's undisputed testimony, the court ruled, stating:

Well, the Court is going to grant the Motion to Suppress. It occurs to me that the mere suspicion on Mr. Gordon, here, is totally unwarranted. I--I really don't care what experience he's had. His recitation of the events surely would not have warranted a magistrate to issue a search warrant and I find it rather offensive that he stopped these people and asks his wife to pat down the--the wife of the defendant and that he then incarcerates the defendant and somehow or other he makes the distinction that he was not under arrest but he was merely detained in a cell. I find that incredulous.

But merely to--that--he states that he found this man and that he was a classic case of nervousness and on that he starts looking over the vehicle with a--with a clothes hanger.

And then on top of that to drill a portion of the--to take an electric drill and to drill into what he considers to be a compartment. The end doesn't justify the--the means.

I understand the US Attorney has to proceed on whatever they're provided, but this is a classic case of intrusion. An unconstitutional intrusion and I'm appalled at what apparently what this man is doing at the border.

The Court is going to sustain the--I'm going to grant the motion to suppress.

MR. ROMERO: Your Honor, just for the record, if I could state, there--is it my understanding that there was no requirement of probable cause at the border?

THE COURT: Absolutely. Now, he's permitted to inspect, but he had nothing to warrant the extreme inspection that he made. And the fact that he claims that he found something that sounded solid, rather than hollow, that doesn't give him the right to go and start drilling to find--to establish probable cause.

He's permitted to make a reasonable inspection, but to the limits that this man went to, I--I suggest that he was--that he went to great length to establish probable cause. He did not have it, initially.

That will be the ruling of the Court.

Id. at pp. 12-14.

The district court entered its order granting Carreon's Motion to Suppress on May 17, 1988. The government's Motion to Reconsider the Order Suppressing Evidence was denied on June 14, 1988, as not well taken.

Discussion-Disposition

The warrant requirement of the Fourth Amendment is subject only to a few specifically established and well-delineated exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The exceptions to the warrant-based-on-probable cause requirement are anchored to a tripartite weighing of public necessity, efficacy of the search and the degree of the intrusion. See California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (a warrantless search and seizure of garbage placed outside of the residential curtilage for collection does not violate the Fourth Amendment because there is no legitimate expectation of privacy in such garbage); Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (police may open closed containers while conducting a routine inventory search of an impounded vehicle); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (administrative searches of school children by school officials conducted on school property approved based on reasonable grounds for suspicion of violation of law or school rules); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (random searches without probable cause are permissible in prison since there is no legitimate...