U.S. v. Gomez

Decision Date08 October 1985
Docket NumberNo. 84-2648,84-2648
Citation776 F.2d 542
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ricardo Alonza GOMEZ, Antonio Reyes Espinoza and Gilbert Barnett Hartman, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

J.A. Canales, Nancy M. Simonson, Corpus Christi, Tex., for Antonio Espinoza.

Helen M. Eversberg, U.S. Atty., Jack Frels, Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., Mervyn Hamburg, Atty., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court For the Western District of Texas.

Before RANDALL, DAVIS and HILL, Circuit Judges.

AMENDED OPINION

W. EUGENE DAVIS, Circuit Judge.

Ricardo Alonza Gomez, Antonio Reyes Espinoza and Gilbert Hartman appeal their convictions for conspiracy to possess with intent to distribute marijuana and aiding and abetting one another in the substantive offense of possession with intent to distribute marijuana. We find the evidence introduced at trial was insufficient to sustain Espinoza's convictions, but affirm the convictions of Gomez and Hartman.

This case had its genesis in a telephone call received by the Texas Department of Public Safety (DPS) on June 5, 1983, in which an anonymous informant conveyed the information contained in the following testimony:

"This department received information that subjects staying in room 1408 of an unknown hotel in San Antone," and gave the phone number, which turned out to be the Marriott Inn North; that they were driving a stolen van loaded with 2,000 pounds of marijuana scheduled to be moved between seven o'clock and eight o'clock 'this date' which was the 5th of June of 1983, and the marijuana belonged to a Quintero subject who had forged papers. Said the other subjects were from the Chicago area.

Record, Vol. 4, p. 1-42.

On receiving this tip, Officer Kidd of the DPS proceeded to the San Antonio Marriott and surveyed the parking lot without discovering a stolen van. He was informed by the hotel clerks that rooms 1406 and 1408 were registered to a gentleman named Frank Garcia. One hotel clerk pointed out Espinoza and Gomez to Kidd as two of the individuals accompanying Garcia when he checked into the rooms. The rooms were placed under surveillance for the remainder of the day, but no activity of note was observed.

On the morning of June 6, the anonymous tipster again contacted the DPS, advising them that the promised marijuana transaction would take place that morning at a ranch in Seguin, Texas. The tipster further stated that the owner of the marijuana was from Harlingen, Texas, and apparently gave a phone number for the owner's supposed residence there. Finally, the informant stated that if the individuals in the Marriott rooms were followed they would end up at the place of the drug transaction. In response to this information, the Marriott rooms were once again put under surveillance. At 11:28 a.m., Espinoza emerged from room 1406 and drove an unidentified woman to the airport, where she boarded a plane for Houston and Harlingen, Texas. Espinoza then returned to the hotel, and after making a phone call in the lobby, returned to the room. Later, Gomez moved some luggage from room 1408 to room 1406. Shortly afterwards, Espinoza drove a Ford automobile to a Holiday Inn, picked up Hartman, and returned to the Marriott. At 12:45 all three defendants left the Marriott and returned to the Holiday Inn. Gomez was dropped off at the Holiday Inn; Espinoza and Hartman in the Ford then drove north toward Seguin, Texas. At some point in this journey they were joined by a U-Haul truck or van driven by Gomez.

On arriving in Seguin, Espinoza and Hartman stopped at a Kentucky Fried Chicken establishment, while Gomez drove the U-Haul to a residence in the country outside of Seguin. Officers observed the truck parked next to a metal shed and observed Gomez standing outside the shed and speaking to another individual, but saw nothing actually being loaded or unloaded from the truck. After approximately 30 minutes, Gomez returned to the Kentucky Fried Chicken restaurant, where Hartman took his place behind the wheel of the U-Haul. Hartman then drove east on I-10 in the U-Haul; Gomez and Espinoza drove west in the Ford. A few miles later, at approximately the same time, police stopped both the U-Haul and the Ford.

Officer Kidd testified that on stopping the U-Haul he observed marijuana debris on the tailgate portion of the truck and smelled an odor of marijuana. Hartman signed a consent form allowing a search of the truck, which yielded 1,181 pounds of marijuana and a rental agreement bearing Hartman's name. Back at the Ford, Gomez and Espinoza were detained. After the marijuana was discovered in the U-Haul, they were taken back to that site, where both were searched and a small quantity of marijuana, similar in appearance to that found in the truck, was found in Gomez' boot. The following day, room 1406 at the San Antonio Marriott was searched and various materials, including notebook pages bearing what appeared to be computations of income, expense and profit, were seized.

Espinoza, Gomez and Hartman were first indicted on state charges in 1983, but for reasons not immediately apparent from the record, these charges were ultimately dismissed. In June 1984, a two-count federal indictment was returned charging the three defendants with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. Sec. 846, and aiding and abetting one another in the possession with intent to distribute of marijuana in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

In this appeal, the defendants contend that a number of improprieties in their arrests and joint trial require reversal: (1) their arrests and the searches of their vehicles were without probable cause, and therefore the evidence seized from their persons and the vehicles was improperly admitted; (2) the government's delay in obtaining the federal indictment violated their sixth amendment right to a speedy trial as well as the Speedy Trial Act, 18 U.S.C. Sec. 3161(b); (3) the prejudicial potential of the evidence seized from the Marriott room outweighed its probative value, and it was therefore erroneously admitted; and (4) each defendant challenges the sufficiency of the evidence to sustain his respective conviction.

I. Fourth Amendment Issues

The only evidence seized from the defendants' vehicles or persons which was introduced at trial was the marijuana found in the U-Haul, the small additional amount found in Gomez' boot, and (apparently) the rental agreement from the U-Haul. The defendants contend that the searches which uncovered this evidence were carried out without the probable cause necessary for an arrest or the reasonable suspicion necessary for a Terry stop. 1 We disagree, because the law enforcement agents were aware of sufficient facts to justify a reasonable suspicion that criminal activity was taking place and thus to justify an initial Terry stop of both vehicles. After the vehicles were stopped, events unfolded in such a fashion that the arrests and subsequent searches were based on probable cause.

A valid investigatory stop under Terry and its progeny, in simplest terms, requires a reasonable conclusion by the police officer, in light of his experience, that some kind of criminal activity is taking place. 2 Reasonable suspicion must be based on "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Finally, these facts must "be judged against an objective standard: Would the facts available to the officer at the moment of seizure ... 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Id. at 21-22, 88 S.Ct. at 1879-80, 20 L.Ed.2d at 906.

One of the factual circumstances which may go into the making of a reasonable suspicion is that presented by this case--a tip from an unknown informant of untested reliability. We have held that "a tip from an informant of unknown reliability ordinarily will not create a reasonable suspicion of criminality." United States v. Kent, 691 F.2d 1376, 1379 (5th Cir.1982), cert. denied, 462 U.S. 1119, 103 S.Ct. 3086, 77 L.Ed.2d 1348 (1983). Such a tip will often give no indication of the informant's past reliability, nor will it indicate the basis for the informant's information and conclusion that criminal conduct is taking place. 3 The courts of appeals are in general agreement, however, that when the details of an anonymous informant's tip are corroborated by independent investigation, it may give rise to a reasonable suspicion. 4 The degree of corroboration required depends upon the circumstances of the particular case. For example, when an anonymous tip from an untried tipster is corroborated by observation of facts which are actual evidence of criminal activity, the tip may even give rise to probable cause 5--which requires a greater amount of proof than the reasonable suspicion in question here. In order for such a tip to give rise to reasonable suspicion corroboration of an adequate number of innocent details may suffice.

For example, in United States v. White, an anonymous informant stated that a young black man wearing a blue jumpsuit would park an automobile in a certain location, enter another specifically described automobile, drive away, and then return carrying drugs. The apparently innocent details of this trip were verified by police. 648 F.2d at 30-31. The District of Columbia Circuit held that this tip and verification were sufficient to support a reasonable suspicion and thus a Terry stop. 6

This circuit's discussion in United States v. McLeroy is...

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