U.S. v. Ibarra

• Decision Date: 19 July 2007
• Docket Number: No. 06-50783.,06-50783.
• Citation: 493 F.3d 526
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rafael Jesus IBARRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.3d 526

UNITED STATES of America, Plaintiff-Appellee, v. Rafael Jesus IBARRA, Defendant-Appellant.

No. 06-50783.

United States Court of Appeals, Fifth Circuit.

July 19, 2007.

Joseph H. Gay, Jr., Mark Randolph Stelmach (argued), Asst. U.S. Attys., San Antonio, TX, for U.S.

Ward Stafford Clay (argued), San Diego, CA, for Ibarra.

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

Before KING, DeMOSS and OWEN, Circuit Judges.

DeMOSS, Circuit Judge:

Rafael Jesus Ibarra appeals his conviction for possession with intent to distribute over five kilograms of cocaine. Ibarra contends that the district court erred by (1) failing to suppress evidence seized after a traffic stop, (2) refusing to reveal the identity of a confidential informant, and (3) allowing a DEA agent to testify during trial that in his opinion, no drug trafficking organization would entrust a large shipment of cocaine to a driver without knowledge of what he was transporting. For the following reasons, we AFFIRM the rulings of the district court on the first two issues, but we VACATE the conviction and REMAND for new trial because the admission of the DEA agent's testimony was not harmless error.

I.

On October 5, 2005, DEA Agent Smith received a tip from a confidential informant that a particular tractor-trailer was transporting narcotics. The tractor-trailer was discovered at a Freightliner facility in Odessa, Texas, where the tractor was receiving repairs. With the consent of the management at the Freightliner facility, Agent Smith set up surveillance on both the tractor and the unhitched trailer. A canine unit was brought in to sniff the perimeter of the trailer and the dog positively alerted for the presence of narcotics. The trailer was not searched at that time but remained under surveillance.

The next day, a new tractor arrived to pick up the subject trailer. The surveillance team allowed the new tractor to drive out of the Freightliner facility with the trailer in tow. Agent Smith informed Lieutenant Rawls of the Texas Department of Public Safety that a tractor-trailer carrying a load of narcotics would be traveling on the highway. The DPS was asked to monitor the vehicle after it left the Freightliner facility.

Trooper McGuairt of DPS received the call from Lieutenant Rawls to be on the lookout for the subject trailer. He was provided a license plate number and description of the trailer's logo. McGuairt was instructed to pull the truck over if the driver violated any traffic laws. He was also instructed that if he developed reasonable suspicion of criminal activity, he was to try to obtain consent to search. McGuairt located the vehicle on Interstate 20 and stopped the vehicle after determining that it was speeding and that its right rear mud flap was not rigid as required by law.

The driver of the tractor-trailer was Ibarra. McGuairt requested documentation for the load and asked Ibarra and the passenger, Andres Anzaldo-Diaz, questions about the load and their travel route. McGuairt later testified at trial that he observed numerous indicators throughout the traffic stop that led him to believe that Ibarra and Diaz were involved in some type of illegal activity. McGuairt radioed for a canine unit to be sent. After further questioning, McGuairt explained to Ibarra that he was writing a warning for the speeding and mud flap violations, but that he was issuing a citation for an expired insurance card. McGuairt returned all of Ibarra's documentation, and then asked if he could search the trailer. Ibarra consented.

The canine unit that arrived at the scene alerted to the presence of narcotics. The trailer was taken to a secured area and searched. Two hundred and sixty-four packages of cocaine were discovered concealed within eighteen frozen, shrink-wrapped boxes.¹ Ibarra was arrested and charged with possession with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The net weight of the cocaine was 264.3 kilograms, and at trial, DEA Agent Friday testified that this amount of cocaine would be worth approximately $4 million.

Ibarra's sole defense was that he was unaware that some of the boxes in the trailer contained narcotics, therefore, the main issue at trial was proving that Ibarra knowingly transported the cocaine. Ibarra had told Trooper McGuairt during the traffic stop that he was carrying pork neck bones from a company named Brawley Beef and that he had been present when the truck was loaded in Brawley, California. Ibarra produced a bill of lading that confirmed his story. At trial, the Government's case in chief focused on disproving this statement by showing that Brawley Beef did not sell pork products and by tracing the origin of one of the boxes containing cocaine to show that the box was loaded in Phoenix, Arizona, not Brawley, California as Ibarra had claimed. The Government's other evidence consisted of (1) multiple bills of lading that the Government claimed to be false, (2) testimony from Trooper McGuairt as to Ibarra's behavior during the traffic stop that he believed to be suspicious, (3) a video recording of the traffic stop, and (4) DEA Agent Friday's testimony that in his experience he had never seen a drug trafficking organization entrust a shipment of narcotics of that size to a courier without the courier knowing that he was carrying something illegal.

Prior to trial, the district court held evidentiary hearings on Ibarra's motion to suppress evidence and motion to reveal the identity of the confidential informant. Both motions were denied. The court also denied Ibarra's pre-trial motion in limine to exclude the testimony of Agent Friday. After the jury trial, Ibarra was found guilty as charged. Ibarra filed a motion for judgment of acquittal, which the court denied. The court sentenced Ibarra to 235 months imprisonment.² Ibarra timely appeals to this Court.

II.

A. Motion to Suppress Evidence

Ibarra argues on appeal that the search of the trailer on Interstate 20 was not supported by probable cause or valid consent. Therefore, Ibarra believes the court erred by denying his motion to suppress evidence seized from the trailer. We review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Runyan, 275 F.3d 449, 456 (5th Cir.2001). For our review, we may consider all of the evidence presented at trial, not just that presented before the ruling on the suppression motion, in the light most favorable to the prevailing party, which in this case is the Government. See id.

The district court held that probable cause was lawfully established at the Freightliner facility at the time the first police dog alerted to the presence of narcotics within the trailer. The court also concluded that after the stop on Interstate 20, probable cause still existed even though Trooper McGuairt did not have actual knowledge of all of the details, based on the "collective knowledge" doctrine. Under the collective knowledge doctrine, it is not necessary for the arresting officer to know all of the facts amounting to probable cause, as long as there is some degree of communication between the arresting officer and an officer who has knowledge of all the necessary facts. United States v. Kye Soo Lee, 962 F.2d 430, 435 (5th Cir.1992).

Ibarra argues the court erred in applying the collective knowledge doctrine because the Government conducted an illegal search at the Freightliner facility, and therefore any information obtained from that search was tainted and could not be used as probable cause for the stop on Interstate 20. We agree with the district court that probable cause was properly established at the Freightliner facility. The agents received permission from the management at Freightliner to enter and use the premises to set up surveillance on the particular tractor and trailer. Furthermore, it is firmly established that the dog sniff of the exterior of the trailer is not a "search" within the meaning of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); United States v. Seals, 987 F.2d 1102, 1106 (5th Cir.1993).

Agent Smith knew all of the facts giving rise to the probable cause to search the trailer, and there was communication between Agent Smith, Lieutenant Rawls, and Trooper McGuairt regarding the investigation of this trailer. Therefore, Agent Smith's knowledge of probable cause can be imputed to Trooper McGuairt under the collective knowledge doctrine, see Kye Soo Lee, 962 F.2d at 435, and because the trailer was in transit at the time, no warrant was necessary, see California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).³ Because we hold that Trooper McGuairt had probable cause and exigent circumstances to search the vehicle...