U.S. v. Fitzharris

Citation633 F.2d 416
Decision Date22 December 1980
Docket NumberNo. 79-5355,79-5355
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Cyril B. FITZHARRIS, Archie Edwin Whatley and Arturo Cantu, Defendants- Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Roland E. Dahlin, II, Federal Public Defender, Karen K. Brown, Asst. Pub. Defender, Houston, Tex., for Fitzharris.

Hugh Loew, Austin, Tex., Edward A. Mallett, Houston, Tex., for Whatley.

Bennie E. Ray, Brownsville, Tex., for Cantu.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before RUBIN, HENDERSON and REAVLEY, Circuit Judges.

HENDERSON, Circuit Judge:

Arturo Cantu, Cyril Fitzharris and Archie Whatley appeal their convictions of conspiring to possess marijuana with intent to distribute, in violation of 21 U.S.C.A. § 846. 1 All three appellants contend that the trial court erroneously admitted confiscated marijuana. Cantu and Whatley insist that the evidence was insufficient to prove their involvement in the conspiracy. Partly because of the factual nature of these issues, and partly because of uncertainty at oral argument concerning the circumstances of the discovery of the marijuana, it is necessary to begin with a rather detailed statement of the evidence.

As early as 1975 the Drug Enforcement Administration (DEA) believed that Carlos Moreno led an organization running large quantities of illicit drugs north from Los Fresnos, Texas. On January 29, 1978, Crispin Trevino of the Harlingen, Texas police department learned that Moreno would soon ship a load of marijuana. Affidavit in support of search warrant P P 2 and 5. Accordingly, on the evening of January 30, 1978, he and DEA Special Agent Tony Tamayo set up surveillance at a Los Fresnos location frequented by Moreno's associates. There they observed three vehicles they knew were used by members of the Moreno organization: a white and yellow pickup truck, a blue Corvette, and a 1956 black Chevrolet convertible. Tr. 65-66. The truck left the scene, followed by the agents who lost sight of it. When they returned the other two cars were gone.

The next day, January 31, 1978, Agent Bustamante, who was working with the other agents, radioed Trevino that he was following Carlos Moreno's Cadillac north. Trevino and Tamayo caught up with Bustamante in Robstown, Texas, where they witnessed a rendezvous between the occupants of the Cadillac and those of a yellow Vega 2 registered to defendant Cantu. Tr. 68-71. Cantu was there. Tr. 74. The Cadillac proceeded to Austin where its occupants visited Room 229 of the Colonial Inn motel. Tr. 76.

Knowing it was often used by the Morenos, DEA Agent Heather Campbell had begun surveillance of the Colonial Inn on the night of January 30-31, 1978, and at about 1:30 a. m. the blue Corvette arrived. The next morning Campbell returned to the motel and saw the Corvette and the white and yellow pickup truck. She then went into the motel coffee shop and saw Jesus Moreno, Carlos' brother. Tr. 403-05.

Around 11:00 a. m. Campbell observed the Chevrolet parked alongside the pickup truck and the Corvette. The Chevrolet automobile left at about 1:00 p. m., with Campbell trailing behind. While pursuing the Chevrolet she learned it had been in Harlingen the night before. Tr. 406-07. She followed the Chevrolet to the residence of Fitzharris, a ranch on Brant Road outside Austin. Tr. 407.

Agents Tamayo and Campbell were assigned to watch traffic approaching the Fitzharris ranch. Campbell was stationed near the freeway entrance to Brant Road; Tamayo was positioned down Brant Road, beyond the entrance to the ranch. When a car entered Brant Road, Campbell would radio the description to Tamayo. If the car did not pass Tamayo shortly after passing Campbell, they would know it had turned into one of the several driveways off Brant Road; perhaps the drive into Fitzharris' property. Tr. 148-52, 409-11, 464.

On the morning of February 1, 1978, Gary Doty, at the direction of Carlos Moreno, drove his blue and white 1972 Torino to the Colonial Inn. Tr. 77, 377. At the door of Room 229 he asked for Chico, again as per instructions. Doty was invited into the room, which was occupied by four men, among them Cantu. Chico (who was in fact Jesus Moreno) told Doty to put his car keys on a table. After a conversation in Spanish, to which Doty was not privy, one of the men picked up the keys, and he and Cantu left the room. Tr. 256-57, 378-80, 389. One of the two remaining men accompanied Doty down to the coffee shop to wait for the marijuana, Tr. 79, 381, leaving Chico alone.

Shortly thereafter, back at the ranch, Agent Campbell radioed Tamayo that Doty's car had entered Brant Road. 3 The Torino never reached Tamayo, but, after a few minutes, returned past Agent Campbell. Tr. 152-54. Agent Campbell was too far from Brant Road to see how many people were in the car. Tr. 441-42, 465-66.

When the agents set up surveillance, the gate to the Fitzharris ranch was closed. Tr. 152. After he realized the Torino had turned off Brant Road, Agent Tamayo drove toward Agent Campbell and saw that the gate was open, and that there were fresh tire tracks in the drive. He made a U-turn when he reached the highway, and on his way back to his original position he saw that someone had closed the gate. Tr. 154.

The Torino arrived at the Colonial Inn a few minutes later, Tr. 80-81, 155, without Cantu, Tr. 81, 382. Doty and his companion then returned to Room 229. After making partial payment for fifty pounds of marijuana and talking with Carlos Moreno over the phone, Doty went down to his automobile. Tr. 81, 382-84. Doty cracked the trunk of his car and saw several green plastic garbage bags. Tr. 250-54, 384. He then drove a few blocks and stopped the car to make sure the bags contained marijuana. Tr. 384, 394-401. While Doty was looking in the trunk the agent who was following him drove by and thought he saw marijuana. 4 Tr. 193, 213, 291, 317-18. Doty returned to his car, but was arrested before he could leave. Tr. 292, 385. The police seized about forty-nine pounds of marijuana from his trunk. Shortly thereafter the police at the Colonial Inn arrested the occupants of Room 229. Tr. 411-12.

About an hour later Agents Campbell and Tamayo were reinforced by the arrival of local police and the other agents. Tr. 156-57, 412. They entered the outer gate of the ranch and surrounded the fenced curtilage, which included a small, primitive house and connecting shed. Tr. 159, 235, 334. As the agents approached, Fitzharris came out the front door, and was told to lie down. Tr. 161, 183, 208, 235, 335. Cantu was discovered by an officer in one of the buildings. Tr. 163, 186, 208-09, 235, 312. No further search was made at that time, Tr. 163, 186, 235-37, 293, but a substantial amount of marijuana was in plain view. 5 Tr. 337. Fitzharris and Cantu were taken into town and Agent Campbell went to procure a search warrant. Several agents waited on the property, near Brant Road. Tr. 294-95.

Later in the afternoon Whatley drove up to the ranch. Tr. 295, 319, 327. He had a sack of groceries and a chainsaw inside his truck. Tr. 214, 295, 320. The officers on the scene greeted Whatley with drawn guns, and eventually arrested him. Tr. 295, 331. The arresting officer testified that Whatley told him "I don't understand you. I just come to feed my cattle." 6 Whatley explained that he had forgotten to leave the groceries when he stopped by his home. Tr. 296.

Later that night Agent Campbell returned with a search warrant. The agents seized the several hundred pounds of marijuana they had observed previously. Tr. 300. On a table the agents found a small electronic calculator and a piece of kraft paper with a list of notations composed of letters and numbers. Two notations contained the letters "ARCH." Gov't Ex. 42. Outside the house an agent searched a fifty-gallon can filled with trash, where he found bills and correspondence addressed to female members of Whatley's family, charge card receipts signed by Mrs. Whatley, and two receipts for car repairs. One receipt was made out to "Mrs. M. Whatley," and the other to "M. Whatley." Both were dated October, 1977, and contained Fitzharris' phone number. Tr. 233, 301-07; Gov't Ex. 28-35.

All of the appellants challenge the introduction of the marijuana seized from the ranch. The district court held a suppression hearing and, pursuant to stipulation, considered the evidence developed at the earlier probable cause hearing. The court held that since the defendants were not charged with a possessory crime, Whatley had no standing to challenge the ranch seizure, citing Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). R. 50. As to Fitzharris', it found that the warrant to search the ranch was supported by probable cause.

Both in their briefs and during oral argument the appellants forcefully maintained that the marijuana found at the ranch was the product of an illegal search, and was therefore inadmissible. 7 Specifically, they claimed that the marijuana was found during the warrantless search of the ranch. At oral argument the government's only response was to deny that the entering agents ever saw any marijuana. Our examination of the evidence reveals that at least some of the agents discovered what they perceived to be marijuana when they first entered the ranch. See note 5, supra.

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Supreme Court held that the Fourth Amendment requires suppression of evidence discovered and seized in the course of a warrantless entry into a suspect's home to make a routine felony arrest. Possibly exigent circumstances, such as danger to the officers or the likelihood that the evidence would otherwise be destroyed, will permit such an entry (the Court reserved this question). 445 U.S. at 581, 100 S.Ct. at 1377, 63...

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