U.S. v. Garcia, 79-5435

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GODBOLD, REAVLEY and ANDERSON; PER CURIAM
• Citation: 616 F.2d 210
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturo GARCIA, Defendant-Appellant. Summary Calendar. *
• Docket Number: No. 79-5435,79-5435
• Decision Date: 01 May 1980

Page 210

616 F.2d 210 UNITED STATES of America, Plaintiff-Appellee,
v.
Arturo GARCIA, Defendant-Appellant. No. 79-5435
Summary Calendar. ^* United States Court of Appeals,
Fifth Circuit. May 1, 1980.

Mario J. Martinez, El Paso, Tex., for defendant-appellant.

Le Roy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, REAVLEY and ANDERSON, Circuit Judges.

PER CURIAM:

In a bench trial, appellant Arturo Garcia was found guilty of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1976). He was sentenced to 3 years in prison to be followed by 6 years special parole. He appeals to this Court, alleging that the trial court erred in failing to rule that he was illegally

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arrested ¹ and in failing to suppress the marijuana seized. THE FACTS

At approximately 11:30 A.M. on June 1, 1979, appellant arrived at a checkpoint on Highway 67 in Texas at the Presidio location which was being operated by border patrol agents Victor Cortez and Loretto Vasquez. Appellant was driving a Ford pick-up truck. Patrolman Cortez asked appellant about his citizenship and appellant responded, in broken English, that he was an American citizen. Noticing that appellant was nervous, Cortez asked for further proof of citizenship. His hands shaking, appellant produced a driver's license which he dropped on the seat of the pick-up truck.

Patrolman Cortez then looked between the cab and the rear bed of the pick-up truck. There he saw a rubber floormat covering the chassis frame and the drive shaft. In the bed of the pick-up, he observed four new bolts. Two of the bolts were assembled close to the cab and the other two at the rear of the bed of the truck. The bolts were a type not normally part of the truck at the time of purchase. Appellant was then ordered to drive his truck over to the secondary inspection site.

Patrolman Cortez proceeded to look underneath the bed of the pick-up, and noticed a concealed compartment which had been constructed by welding a sheet of metal under the bed of the truck. The compartment was approximately four feet by eight feet, and ten inches deep, large enough to conceal a human being. Cortez saw some bricks through some cracks, and also saw a plastic trash bag hanging from the bottom of the truck. When he touched the bag, seeds fell to the ground and he smelled marijuana.

Appellant Garcia was then arrested. The border patrol officers conducted a search of the truck and found marijuana concealed in the secret compartment and under the hood.

THE REFERENCE TO THE SECONDARY INSPECTION SITE

Appellant Garcia argues that while the initial stopping and questioning of him by the border patrolman may have been permissible under the authority of U. S. v. Brignoni Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) and U. S. v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the officers were justified in restraining his freedom of movement, i. e., arresting him, only if they had probable cause. Appellant's claim apparently is that his referral by the officers to...