U.S. v. Cisneros-Mireles

• Decision Date: 15 August 1984
• Docket Number: CISNEROS-MIRELES and J,No. 84-2075,84-2075
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernandoorge Luis Cisneros-Mireles, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1000

739 F.2d 1000

UNITED STATES of America, Plaintiff-Appellee, v. Fernando CISNEROS-MIRELES and Jorge Luis Cisneros-Mireles Defendants-Appellants.

No. 84-2075

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Aug. 15, 1984.

Pena, McDonald, Prestia & Ibanez, L. Aron Pena, Edinburg, Tex., for Fernando and Jorge Luis Cisneros-Mireles.

Daniel K. Hedges, U.S. Atty., Susan L. Yarbrough, James R. Gough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, GEE and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants Fernando Cisneros-Mireles and Jorge Luis Cisneros-Mireles (together with two others) were charged with one count of conspiracy to possess, and one count of possessing, marihuana with intent to distribute it, in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 841(a)(1) and 846. ¹ After the district court's denial of their pretrial motions to suppress evidence seized from them, defendants entered conditional pleas of guilty to the conspiracy count pursuant to Fed.R.Crim.P. 11(a)(2). They appeal their convictions on the sole ground that the district court erred in denying their motion to suppress. Finding no error in the district court's ruling in this respect, we affirm both convictions.

I. FACTS

There is no substantial dispute about the primary facts found by the district court. On October 5, 1983 at 10:00 a.m., Tony Tamayo, a special agent with the Drug Enforcement Administration (DEA), stationed in Brownsville, Texas, received a tip from an informant, who had previously proved reliable, that Fernando had a quantity of marihuana stored in black plastic bags at his residence in Brownsville. The informant further stated that Fernando drove a red Ford pickup truck with Mexican license plates and that he carried a weapon that appeared to be a machine gun. The informant indicated that he had this knowledge from his own personal information, and that he had seen the marihuana in the bags at the residence of Fernando within the past twenty-four hours.

At 10:20 a.m., Tamayo and five or six other DEA agents established a surveillance of the Cisneros-Mireles residence. At approximately 3:15 that afternoon, Fernando appeared driving a red Ford pickup truck with Mexican license plates. He left his residence five minutes later and then reappeared at 4:15 p.m. when, having driven past the residence twice, he parked near the rear of the house together with a black-and-gray pickup truck.

About 4:35 p.m., a maroon-and-gray camper truck parked at the front of the residence. The individual driving the camper truck walked to the back of the residence, and then, together with Fernando, walked back to the front. Tamayo testified that the placement of the DEA agents allowed them to observe the front and one side of the house, but not portions The agents detained all four persons and conducted a pat down search of each. They found three black plastic garbage bags in Jorge's trouser pocket and a set of car keys in Fernando's pocket. Using these car keys, Tamayo opened the Buick's trunk and found black plastic garbage bags. Since the bags were not sealed, the agent could plainly see that the contents were marihuana wrapped in clear cellophane. All four suspects were the placed under arrest.

of the rear. He was, therefore, unable to ascertain what was going on at the back of the house. Approximately five minutes after it arrived, the camper truck departed. Shortly thereafter the other two trucks also left. The black-and-gray pickup, driven by Jorge, proceeded to the parking lot of Cisneros House Movers, a house moving business owned by defendants and located about five or six miles from the residence. Adjacent to the parking lot was a small aluminum building which served as the office for the house moving business. The lot was used to park the business' vehicles. The lot had recently been, and still had the appearance of being, used as a used car sales lot open to the public (the lot had an Auto Car Lot sign and a Cisneros House Movers sign). The lot was unfenced or chained and had two exits. Fernando, driving the red pickup, arrived at the parking lot at about 5:00 p.m., after having driven to a service station near the lot and also having stopped briefly back at his house. Shortly after Fernando's arrival, the DEA agents, who had followed the suspects to the business address, observed Fernando get out of the red truck and talk to Jorge and two other persons who had been at the lot before Jorge and Fernando arrived. Jorge then moved the black-and-gray pickup, Fernando walked over to it and then to a Buick which was parked on the lot (and later established to be registered to Jorge). The Buick's trunk opened while Fernando was standing at its back. Jorge and the two others thereupon began to remove black plastic garbage bags from the bed of the black-and-gray pickup and load them into the trunk of the waiting Buick. At that time, which was about 5:15 p.m., Tamayo and the other agents promptly moved in, and as they did so the trunk of the Buick was apparently closed and Jorge began leaving in the black-and-gray pickup.

There was a small child in the bed of the red pickup. Upon being asked by the agents what plans should be made for the child, Fernando replied that he would take care of him, but he began walking toward the cab of the truck rather than to the bed of the truck where the child was. The agents then stopped and handcuffed him, and Tamayo went to the cab and found in plain view an M-1 carbine known as an "enforcer".

II. DISCUSSION

Searches conducted without the prior approval of a judge or magistrate must generally be justified under one of the "specifically established and well-delineated exceptions" to the general warrant requirements. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971); United States v. Gaultney, 581 F.2d 1137, 1141 (5th Cir.1978), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 259 (1980). In justifying its seizure and search of the Buick in this case, the government has relied on the "automobile" exception. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2162-64, 72 L.Ed.2d 572 (1982). Our cases have held that an automobile may be searched without a warrant where there are both exigent circumstances and probable cause to believe that the car contains items that law enforcement officers are entitled to seize. See United States v. McBee, 659 F.2d 1302 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982); Gaultney, 581 F.2d at 1142. Since probable cause in this case grew out of an informant's tip, our review of the evidence must be guided by the Supreme Court's decision in Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See United States v Mendoza, 722 F.2d 96, 100 (5th Cir.1983) (standard for probable cause the same for warrantless search as for obtaining a warrant), on rehearing, 727 F.2d 448 (5th Cir.1984) (Gates applies retroactively). In Gates the Supreme Court abandoned the rigid two-pronged test under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), for determining whether an informant's tip establishes probable cause for the issuance of a warrant (the informant's veracity or reliabilityand the basis of his knowledge, each of which had to be discretely established). In place of this test, the Court established a "totality of the circumstances" approach. With respect to this approach the Gates Court stated:

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." 103 S.Ct. at 2332 (citations omitted).

The Court further observed that an informant's veracity, reliability, and basis of knowledge were to be understood as

"... closely entertwined issues that may usefully illuminate the commonsense, practical question whether there is 'probable cause' to believe that contraband or evidence is located in a particular place.

"....

"[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. at 2328, 2329.

In the present case we think it clear that given the totality of the circumstances, there was probable cause to believe that the Buick contained marihuana. The informant who gave the tip which ultimately led to the seizure of the contraband in this case was personally known by Agent Tamayo to be reliable. Tamayo testified that the informant had given him reliable information on at least six occasions before. Furthermore, the informant's tip was based upon his own personal information, as he reported to Tamayo that he had seen the marihuana in the black plastic garbage bags at Fernando's residence within the past twenty-four hours. Corroboration of the informant's tip came when the officers observed Fernando and the red Ford pickup with Mexican license plates, as reported by the informant, at the address given to them by the informant. Further corroboration came when, having followed the vehicles from the residence, the agents saw black plastic garbage bags being loaded into the Buick. Under these circumstances, we hold that there were such "trustworthy facts and circumstances" within the DEA agents' personal knowledge that would cause "a reasonably prudent...