U.S. v. Corral, MARTINEZ-FABEL

• Decision Date: 13 July 1987
• Docket Number: A,Nos. 86-2361,MARTINEZ-FABEL,86-2362,s. 86-2361
• Parties: UNITED STATES of America, Appellee, v. Ismael France CORRAL, Appellant. UNITED STATES of America, Appellee, v. Jose Ramonppellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1389

823 F.2d 1389

UNITED STATES of America, Appellee, v. Ismael France CORRAL, Appellant.

UNITED STATES of America, Appellee, v. Jose Ramon MARTINEZ-FABELA, Appellant.

Nos. 86-2361, 86-2362.

United States Court of Appeals, Tenth Circuit.

July 13, 1987.

Robert Ramos, El Paso, Tex., for appellant Corral.

Reber Boult, Albuquerque, N.M. (Timothy M. Padilla, Albuquerque, N.M., with him on brief), for appellant Martinez-Fabela.

James D. Tierney, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., with him on brief), for appellee.

Before HOLLOWAY, Chief Judge, and ANDERSON and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge.

Jose R. Martinez-Fabela ("Martinez") and Ismael F. Corral ("Corral") appeal from judgments of conviction entered September 2, 1986 in the District of New Mexico, Juan G. Burciaga, District Judge, following a jury trial. Martinez and Corral were found guilty of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1982) and 18 U.S.C. Sec. 2 (1982).

Prior to trial, Martinez and Corral made a motion to suppress evidence seized during a consensual search of the rented truck they were driving. They mounted a multi-prong attack, challenging, first, the constitutionality of the roadblock at which they were stopped by the New Mexico State Police; second, the propriety of their detention after the initial stop; and, third, the validity of the consents they both gave to search the truck and their personal effects. After a hearing, the district court denied the motions to suppress. On appeal, Martinez and Corral argue that the denial of their motions was clearly erroneous. We disagree.

We hold that the roadblock in the instant case comported with established law in this Circuit. The roadblock was put in place to check vehicle registrations, driver's licenses and proof of insurance--all legitimate and permissible reasons. We also hold that the detention of Martinez and Corral, following the initial stop at the roadblock, was reasonable within the meaning of Terry v. Ohio, 392 U.S. 1 (1968). Finally, we hold that appellants' consents to accompany the officers from the roadblock to the local police department, and to the subsequent searches, were voluntary and not the product of police overreaching, coercion or duress.

Martinez also contends that the procedures employed in sentencing him were flawed by consideration of false and unreliable information contained in the pre-sentence report prepared on him. ¹ We disagree. The court below determined on the record that it placed no reliance on the challenged portions of one report in imposing sentence. We accept this determination. We do remand this matter, however, with directions that the trial court cause its determination that it would not consider the challenged statements in imposing sentence to be appended, by written order to the pre-sentence report for the information of any persons examining the pre-sentence report. See Fed.R.Crim.P. 32(c)(3)(D).

We affirm the judgments of conviction in all respects. As to appellant Martinez' challenge to his sentencing procedure, we remand for the limited purpose delineated herein.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

On April 17, 1986 Martinez was driving, with Corral his passenger, a rented Ryder truck eastbound on New Mexico State Road 62/180 when they were stopped at a roadblock set up by the New Mexico State Police near Hobbs, New Mexico. The roadblock had been established by State Police Officers Denton and Frisk, pursuant to their supervisor's permission, to conduct routine driver's license and car registration checks. The plan implemented by the officers with the roadblock was to stop all eastbound traffic, with the exception of a local supermarket's delivery trucks. The latter trucks were excluded from the roadblock because the officers, who had often stopped such trucks at previous roadblocks, knew all the drivers and knew that their logbooks, cab cards and insurance were current.

After the Ryder truck stopped, Officer Denton approached it. As Martinez rolled down the window, the officer detected a strong odor of marijuana emanating from the truck. The officer requested that Martinez produce his driver's license and the truck rental agreement. Martinez complied. In addition, he offered the officer an expired National Guard identification card. Martinez explained to the officer that he and Corral were on their way to Atlanta to deliver to Martinez' sister the furniture in the truck. Martinez stated that the trip was to be a hurried one because he was stationed in El Paso and had to return to that locale. Denton found this statement to be inconsistent with his expired National Guard identification card.

In view of his detection of the odor of marijuana, Denton asked Martinez to pull the truck over to the side of the road. Martinez and Corral thereupon got out of the truck. At that time Officer Frisk joined them. After being informed by Denton why he had asked Martinez to pull the truck over to the side of the road, Frisk asked Martinez for permission to look in the cargo compartment of the truck. Martinez responded in the affirmative. Frisk began a limited search. He noticed that the truck was loaded with furniture and cardboard U-Haul boxes which were taped shut. There also were several mattresses stacked on top of the cardboard boxes.

While the conversation between Frisk and Martinez was taking place, Denton walked around the truck to the passenger side. He asked Corral who had been smoking the marijuana. Corral admitted that he had been smoking it, but insisted that he already had smoked the only joint in his possession. Denton asked Corral directly if he had in his possession any more marijuana, to which Corral responded in the negative. Denton informed Corral that, since he had admitted smoking an illegal substance, Denton would "have to look inside of everything". Denton next asked Corral if he had ever "been in trouble" before. Corral responded that he once had been charged with a firearms violation in Chicago. Denton then decided, for his own safety, to frisk Corral. A pat down of Corral resulted in the discovery of $429 in currency. Corral then gave Denton his full name and birthdate. Denton gave this information to Frisk who went to his police car to radio in a request that a check on Corral be made through the National Crime Information Center ("NCIC").

Denton then asked Corral for permission to look further inside the truck and to look inside his suitcase. Corral gave his permission to do so. The search of the suitcase disclosed $1,000 in $20 bills.

Denton next opened the sliding door between the truck cab and the cargo compartment. He saw the furniture and the mattresses stacked on the sealed cardboard boxes. The officers then consulted with each other. In view of the amount of currency found in Corral's suitcase and on his person, together with what the officers believed was a curiously improper way to pack the cargo compartment, they decided to seek permission to search the truck more thoroughly. According to Denton's trial testimony, he spoke with appellants as follows:

"I gave--it was extremely windy on that day. I just told him [Martinez] that we could unload the van at that time right there on the road, or if--they were headed east anyway, they were going right through Hobbs. At that time, I told them that if they would rather, we could just go into Hobbs and call the Hobbs Police Department, who has a drugs detecting dog, that's trained to detect drugs, if they wanted to, it would be alot easier if we just went in there and let the dog sniff the truck out and they could be on their way.... The option I gave him [Martinez], we could unload it there where the wind was blowing and it would have been--to me, it would have been disastrous. You know, it could have destroyed some of the property that was there."

Appellants agreed to accompany the officers to Hobbs. Following Denton, they drove into the town. Upon arrival at the Hobbs Police Department, the officers instructed Martinez to pull the truck into a fenced-in area behind the police station, out of the wind. There they were met by several officers of the Hobbs Police Department and "Buster", the dog trained in drug detection. Denton then requested Martinez to sign a written consent-to-search form, to augment his earlier oral consent. Following a discussion of the form, Martinez read it twice and signed it.

Once the written form had been signed, Denton instructed Officer Randolph of the Hobbs Police Department to let "Buster" into the truck. According to the trial testimony, each time the dog entered the truck he attempted to get underneath the couch and mattresses to the cardboard boxes. The officers opened the boxes and discovered approximately 474 pounds of cocaine. Martinez and Corral were arrested immediately.

On April 14, 1986 a federal grand jury returned a one count indictment charging appellants with one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1982) and 18 U.S.C. Sec. 2 (1982). On June 27, 1986 an evidentiary hearing was held on defense motions to suppress. Following the hearing, the motions were denied.

The case was tried before a jury on July 15 and 16, 1986. Appellants were found guilty as charged in the indictment. On August 29, 1986 Corral was sentenced to a ten year prison term and Martinez was sentenced to a fifteen year prison term. This appeal followed. We consolidated the appeals for purposes of oral argument and this opinion.

For the reasons set forth below, we affirm the convictions in all respects, with the exception of the limited remand for the purpose of appending a written order of determination to appellant Martinez' pre-sentence investigation report.

II....