U.S. v. De Leon-Reyna

• Decision Date: 17 April 1991
• Docket Number: LEON-REYN,No. 89-2157,D,89-2157
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Mario DEefendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 396

930 F.2d 396

59 USLW 2685

UNITED STATES of America, Plaintiff-Appellant, v. Mario DE LEON-REYNA, Defendant-Appellee.

No. 89-2157.

United States Court of Appeals, Fifth Circuit.

April 17, 1991.

Jeffery A. Babcock, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellant.

Timothy L. Jackson, Houston, Tex., for defendant-appellee.

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

Before CLARK, Chief Judge, THORNBERRY, POLITZ, KING, JOHNSON, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:

Today we decide whether the district court erred in granting a defendant's motion to suppress evidence gathered following a warrantless investigatory stop--a stop made partly in good faith reliance on information that was inaccurate through police error. A panel of our Court affirmed the district court, concluding that the vehicle stop violated the defendant's Fourth Amendment rights and further holding that "negligent" police conduct truncated the good faith exception to the exclusionary rule. We now reconsider that decision en banc and reverse the district court.

I.

The facts are set forth in the panel opinion, 898 F.2d 486, to the extent that they are not recounted here. On December 6, 1988, United States Border Patrol Agent Ernesto Martinez (Martinez), during routine patrol duty, parked his marked car on farm-to-market road 2050--a known alternative route of drug and alien smugglers seeking to avoid nearby Border Patrol checkpoints. ¹ During his surveillance, he noticed a welding truck heading south, approaching his position. He was immediately struck by the truck's want of welding equipment--there were no tanks, arc welders, or metal hoses present in the truck, unlike welding trucks he had previously seen and inspected in the area. Instead, this truck contained a stack of plywood bound by metal straps, indicating that all of the plywood had been loaded at one time. The truck, however, had no pallets or other objects to create the holes needed for a forklift to load the cargo. The driver, defendant De Leon-Reyna, appeared surprised and "scared" to see a Border Patrol agent. Furthermore, the truck bounced erratically and dragged a broken shock absorber, suggesting that the weight on the rear of the truck was very heavy. Agent Martinez also knew from reading a Border Patrol Intelligence Center reference book that stacks of plywood often concealed false compartments used for smuggling drugs and aliens.

Suspicious, Agent Martinez then radioed the truck's license plate number "WM-1438" to the dispatcher, who misunderstood him to say "WN-1438." The dispatcher acknowledged the message but owing to the error radioed back that the license check had revealed that the plates were issued to a 1973 Ford dump truck and not the 1982 Chevrolet welding truck that Agent Martinez was following.

Based on his observations and on the license check, Agent Martinez pulled the truck over. Agent Martinez inquired about the defendant's citizenship; and the defendant produced a resident alien card, volunteering that he was en route to a town down the road to do a construction job. When Agent Martinez asked the name of the town, however, the defendant replied that he had forgotten both it and the delivery address for the lumber. After additional questioning, Agent Martinez suspected that the defendant was lying. He asked permission to inspect the truck, and the defendant consented. Looking under the truck, Agent Martinez discovered a freshly welded, false compartment underneath its bed. After asking the defendant whether he knew if someone had tampered with the truck and receiving a negative response, he asked the defendant to step out of the car and produce a copy of his title.

Upon examining the title, Agent Martinez realized that the license check may have been inaccurate because the title matched the license plate on the truck. He radioed the dispatcher to run a second check and then radioed a border patrol agent at the nearby Freer checkpoint station, asking him to bring a drug sniffing dog to determine whether or not a search of the false compartment was necessary. The second license check gave Agent Martinez the correct information. When the dog arrived, it alerted to the rear of the truck; Border Patrol agents later discovered over half a ton of cocaine in the false compartment.

The United States indicted De Leon-Reyna for possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A). He filed a motion to suppress the evidence, maintaining that Agent Martinez's initial stop was without a warrant or reasonable suspicion. During the district court's hearing on the motion to suppress, the dispatcher testified that it is her unit's policy to use code words for communicating license plate letters, although that policy is not always followed. In making his transmission on the occasion in question, Martinez did not use code words for the license plate letters.

The district court granted the motion to suppress, concluding

"that the Government cannot justify a stop based on erroneous information when the error is due to the negligence of its own employees. Once the putative false registration is removed from the picture, the remaining circumstances do not justify a stop,"

and that

"[t]he Court does not question the good faith of the officers who made this stop, but as yet there is no precedent extending a good-faith exception to erroneous factual information relied upon by officers in making a warrantless stop. The Court thus concludes that it has no other recourse but to grant the motion to suppress."

The panel affirmed the district court. It conceded that "if the registration information provided over the radio was correct, then sufficient foundation for a brief investigatory stop existed." Id. at 488. However, the panel noted that the government conceded that "Martinez was negligent for failing to follow proper radio procedures," and held that accordingly the registration information could be given no consideration whatever in determining whether there was an articulable, objective basis for the stop. Id. at 488-89. Concluding that the other circumstances did not justify the stop, the panel held that the stop violated defendant's Fourth Amendment rights. The panel then turned to "the good faith exception to the exclusionary rule," under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and United States v. Williams, 622 F.2d 830, 840 (5th Cir.1980) (en banc), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981). Although the panel recognized that "this circuit applies the [good faith] exception to warrantless searches," 898 F.2d at 491, it held that Martinez's negligent failure to follow his unit's code word policy precluded reliance on that exception, notwithstanding that "Martinez's mistake was made in good faith." Id.

II.

We conclude that regardless of whether Martinez was negligent in failing to follow his unit's code word policy, his good faith reliance on the license report information, as forming a part of the total circumstances he evaluated in determining whether to stop the vehicle, was objectively reasonable, and that accordingly the district court and the panel erred in holding that this information could be given no consideration whatever in evaluating whether the stop was justified under the reasonable suspicion standard of United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). ² For the same reason, we also conclude that the district court and the panel erred in holding that the failure to follow the code word policy precluded reliance on the good faith exception to the exclusionary rule.

In Fourth Amendment cases, the Supreme Court begins with the basic premise that, when examining whether an officer's judgment is objectively reasonable, "the essence of all that has been written is that the totality of the circumstances--the whole picture--must be taken into account." Cortez, 101 S.Ct. at 695. The most recent affirmation of this principle is to be found in Illinois v. Rodriguez, --- U.S. ----, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), where the Supreme Court found no Fourth Amendment violation when police had made a warrantless search of an apartment based on their reasonable belief that they had a valid consent to do so, when in fact they did not. The officers in Rodriguez, had interviewed an assault complainant who referred to the defendant's apartment as "our apartment" and also possessed a key to the apartment. Id. 110 S.Ct. at 2797. Without further inquiry, the police searched the defendant's apartment and discovered substantial quantities of cocaine. Id. The officers never sought an arrest warrant or a search warrant and only later discovered that the complainant had no common authority over the apartment but in the past had been a somewhat infrequent visitor only. Id.

The Supreme Court held that--despite the officers' failure to obtain a warrant or to make further inquiries as to who had a possessory interest in the apartment--the search would be valid if the officers' belief that they had consent, in light of all the circumstances, was objectively reasonable. See id. at 2801. See also Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971).

Similarly, the issue here is not whether Martinez should have followed his unit's code word policy, but rather whether his good faith reliance on the license plate report, along with the other circumstances, in determining to stop the defendant's truck, was objectively reasonable. We do not view the code word policy as being constitutionally mandated or as establishing a constitutional minimum for reliability. Moreover, the policy...