U.S. v. Castro

• Decision Date: 19 November 1997
• Docket Number: 96-40694,Nos. 96-40687,s. 96-40687
• Citation: 129 F.3d 752
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edgar CASTRO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Susan GOMEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 752

129 F.3d 752

UNITED STATES of America, Plaintiff-Appellee, v. Edgar CASTRO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Susan GOMEZ, Defendant-Appellant.

Nos. 96-40687, 96-40694.

United States Court of Appeals, Fifth Circuit.

Nov. 19, 1997.

Keith Fredrick Giblin, Beaumont, TX, for Plaintiff-Appellee.

Jonathan Lewis Munier, Law Offices of Johnathan Munier, Houston, TX, for Castro.

George A. Scharmen, II, San Antonio, TX, for Defendants-Appellants.

Terry G. Collins, Houston, TX, for Gomez.

Appeals from the United States District Court for the Eastern District of Texas.

Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and DOHERTY, ^* District Judge.

POLITZ, Chief Judge:

Edgar Castro and Susan Gomez were convicted on guilty pleas of conspiracy to possess with the intent to distribute and possession with the intent to distribute cocaine after a search of their rented Chevrolet Suburban revealed approximately 900 pounds of cocaine. Concluding that the cocaine should have been suppressed as evidence obtained in violation of the fourth amendment to the United States Constitution, we vacate the convictions and remand to the district court.

BACKGROUND

On November 9, 1996 numerous agents from various federal and state law enforcement agencies conducted surveillance of Javier Vallaho in the Memorial City Mall in Houston, Texas. ¹ During the course of the surveillance the agents observed Vallaho talking to Gomez and an unidentified male Hispanic. Gomez and the man then left the Mall in a grey van and drove to a convenience store located several miles distant. Upon arrival at the convenience store, the man exited the grey van and made a call from a public telephone. The man then drove to a nearby K-Mart and dropped off Gomez. Between ten and fifteen agents followed the van to the convenience store and then to K-Mart.

Gomez entered the K-Mart, purchased several innocuous items, and then used a nearby public telephone. Unbeknownst to Gomez, one of the agents overheard the entire content of this telephone call. During the course of this call Gomez made no reference to any illegal activity. Meanwhile, the van exited the K-Mart parking lot and was driven to a nearby residence. Ten agents in vehicles and a helicopter followed the van but the agents observed no illegal activity. After stopping briefly at the residence, the van returned to the K-Mart parking lot, the man exited and handed the keys to Gomez, and left in another car. Gomez then drove the van from the parking lot to a local motel.

At the motel, Gomez met Castro and Muriel Cristina Vicencio, and the three of them unloaded full grey trash bags from the van. Gomez, Castro, and Vicencio thereafter departed the motel in separate cars and drove back to the Mall. After spending approximately fifteen to twenty minutes inside, the three left the Mall in a rented blue Suburban and began traveling north on U.S. Highway 59. Castro drove the Suburban, Vicencio sat in the front seat, and Gomez occupied the back seat. The agents followed the Suburban for approximately 115 miles as it traveled through the Texas counties of Harris, Montgomery, and San Jacinto, finally entering Polk County. Because the agents following the Suburban did not have probable cause--or even reasonable suspicion--for stopping the Suburban, they determined to enlist the aid of the Polk County Sheriff's Department. ²

The agents contacted the Polk County Sheriff's Department and informed Deputy Sheriff Mike Nettles that a rented blue Suburban "involved in a narcotics transaction" was driving through his county and needed to be stopped. The agents instructed Nettles that he had to "develop his own probable cause" for stopping the Suburban. Nettles positioned his patrol car prominently in the median of Highway 59. As the Suburban approached, Nettles claims to have observed that the driver was not wearing a seat belt and that the Suburban appeared to be exceeding the posted speed limit. Nettles followed the Suburban for several miles and, while doing so, used his speedometer to calculate its speed. Nettles did not use the radar unit in his patrol car to determine the speed of the Suburban. ³

Finally, Nettles turned on the flashing lights on his patrol car and pulled the Suburban over. ⁴ Nettles ordered Castro to exit the Suburban, informed him that he was being stopped for speeding and failure to wear a seat belt, and asked for a driver's license and car registration. Castro produced a valid Maryland license, and Nettles ran a check. The check revealed no outstanding warrants. Nettles then questioned Castro about his presence in Texas. Castro explained that he had flown to Houston with his wife, Vicencio, to attend a construction conference, and that they were on their way home. Castro further explained that Gomez was a family friend. Nettles then questioned Gomez and Vicencio, and Gomez explained that she had been in Houston with Castro and Vicencio to purchase winter clothing.

Characterizing the responses he received from Gomez, Castro, and Vincencio about the reason they had been in Houston and their destination as being somewhat inconsistent, Nettles decided to arrest Gomez and Vicencio for failure to wear a seat belt. ⁵ He placed the two under arrest and sought permission to search the Suburban. Castro declined to consent. ⁶ Nettles then impounded the Suburban and transported it and Castro, Gomez, and Vicencio to the Polk County Sheriff's Department. ⁷ The Suburban was taken to the Polk County sally port purportedly for an inventory search. Upon arrival, when Castro again refused to consent to a search, a drug dog was brought over. The drug dog alerted in the cargo area of the vehicle and the ensuing search uncovered approximately 900 pounds of cocaine. Castro Castro, Vicencio, and Gomez were indicted by a federal grand jury on one count of conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. § 846, and one count of possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Both Castro and Gomez filed motions to suppress the cocaine as illegally seized evidence. After a suppression hearing the district court denied the motions. Castro and Gomez pled guilty to both charges, reserving their right to appeal the denial of the motions to suppress. The district court sentenced Castro and Gomez to concurrent terms of 135 months imprisonment, and a five year term of supervised release. Both timely appealed. ⁸

Gomez, and Vicencio were arrested on drug charges. Neither Castro nor Vicencio were cited or ticketed for the seat belt violation. No inventory search of the Suburban was conducted by the Polk County Sheriff's personnel.

ANALYSIS

We employ a two-tiered standard in reviewing the denial of a motion to suppress. We first review the factual findings for clear error and then review the trial court's ultimate conclusion as to the constitutionality of the law enforcement action de novo. ⁹ Our holding today turns on the latter.

The admissibility of the cocaine hinges on the validity of taking possession of the Suburban for purposes of an inventory search. An inventory search is a well-defined exception to the warrant requirement of the fourth amendment to the United States Constitution. ¹⁰ It is a search of property lawfully seized and detained. Such searches are conducted in order to protect the property that has been lawfully seized, to protect the police against claims of lost or stolen property, and to protect the police from potential danger. ¹¹

An inventory search is permitted and is deemed reasonable only if conducted according to standardized procedures. ¹² More importantly, an inventory search is reasonable and lawful only if conducted for purposes of an inventory and not as an investigatory tool to produce or discover incriminating evidence. ¹³ An inventory search may not be used by police as a "ruse for a general rummaging." ¹⁴ If police use an inventory search in such a manner, any evidence discovered during the course of that search is subject to suppression.

Applying these rubrics to the taking into possession and search of the Suburban convinces us that the cocaine discovered must be suppressed. The Constitution clearly mandates such a result. We entertain no doubt that the search of the Suburban was conducted for investigatory rather than protective administrative purposes. We can reach no other reasonable legal conclusion on the record before us. The Polk County search was not a lawful search.

Castro and Gomez were the focus of a massive effort by numerous federal and local drug enforcement agents to uncover evidence of illegal drug activity. The agents conducting the surveillance of Castro and Gomez followed them first through the City of Houston and, finally, through several Texas counties. At no time did either Castro or Gomez do anything that conceivably could have served as the basis for a finding of probable cause of a drug violation. Consequently the agents obviously concluded that they were not able to make a legal stop or arrest of Castro or Gomez for any drug related violation. If these numerous federal and state law enforcement agents had, or believed that they had, probable cause to arrest, it defies all logic and reason to believe they would not have done so during the early surveillance or at some time in the 100-plus miles of trailing through several Texas counties.

Instead, the agents orchestrated a routine traffic stop, ¹⁵ contacting a local deputy sheriff and instructing him to "create his own probable cause." The deputy sheriff did as instructed and, while the agents stood by and watched, ostensibly arrested Castro and Vicencio for a seat belt violation. ¹⁶ When Castro refused to consent to a search of the Suburban, the deputy sheriff took possession of it, presumably to safeguard its contents while Castro and Vicencio were in custody on the seat belt...