U.S. v. Lopez, No. 89-2598

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore RUBIN, POLITZ, and BARKSDALE; BARKSDALE
Citation911 F.2d 1006
Docket NumberNo. 89-2598
Decision Date29 August 1990
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Roberto Luis LOPEZ, Defendant-Appellant.

Page 1006

911 F.2d 1006
UNITED STATES of America, Plaintiff-Appellee,
v.
Roberto Luis LOPEZ, Defendant-Appellant.
No. 89-2598.
United States Court of Appeals,
Fifth Circuit.
Aug. 29, 1990.

Gustavo Acevedo, Laredo, Tex., for defendant-appellant.

James L. Turner, Paula Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before RUBIN, POLITZ, and BARKSDALE, Circuit Judges.

Page 1007

BARKSDALE, Circuit Judge:

Roberto Luis Lopez (Lopez) appeals his conviction of possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. Sec. 2, contending that the district court erred in not suppressing the marijuana found in his truck as fruit of an illegal stop under the fourth amendment. Finding no error, we AFFIRM.

I.

The following facts were developed at the hearing on Lopez's motion to suppress, at which Lopez testified only about whether he consented to the search of his truck.

On November 1, 1988, at approximately 6:30 a.m., United States Border Patrol Agent Robert Molina (Molina) and his supervisor were working inside a trailer at a stationary checkpoint located at the intersection of two highways, thirty-five miles east of Laredo, Texas. As Molina started monitoring citizens band (CB) radio transmissions, he overheard a transmission which indicated that "[s]omebody was observing [Molina and his supervisor] rather closely." Molina was alarmed and looked for approaching vehicles; he thought that someone was preparing to attack them. He observed a gray pickup truck approaching slowly from the south. He then heard the voice on the CB order someone to "go ahead and come on through quick before they [the Border Patrol agents] come out" of the checkpoint trailer. Molina testified "that's when the [gray] vehicle accelerated and didn't even bother to stop at the [nearby] stop sign."

The gray truck stopped at the checkpoint, and Molina's supervisor conducted an immigration check on the truck's occupants. As the truck was departing, Molina "observed the driver pick up the C.B. and advise the other party ... that he had already made it through the checkpoint and was coming through." "[A]t the same time," that Molina was able to hear the driver speak into the CB (because of Molina's close proximity at the door of the trailer), Molina also heard the "transmission ['I'm coming through'] come across the C.B. ...." Molina identified the voice as the one he had earlier heard monitoring the agents' activities at the checkpoint and was able to identify this voice as having the call name "Catfish" and the other voice as having the call name "Diamond Back." 1

Molina advised his checkpoint backup unit, Border Patrol Agents Carter and Aguirre, who were out of their vehicle and inspecting railroad tracks in Oilton, approximately a mile and one-half from the checkpoint, to be on the lookout for a gray pickup truck. Molina could also hear CB transmissions indicating that Aguirre and Carter were also being observed; a third voice, which Molina had not heard before, stated: "We can see the other patrol cars and the two guys are out of the car at the tracks." Carter and Aguirre were unable to hear the CB transmissions because their patrol car was not equipped with a CB.

Aguirre and Carter got back in their vehicle and departed. While observing traffic approximately 15 minutes later, they saw a "blue pickup go by, a white pickup go by, [and] two other vehicles." Aguirre pulled up to the road and the gray pickup drove by, "coming from the checkpoint." Aguirre testified that "we turned around behind [the gray truck, and] Molina immediately called us back on the radio and he said ... the guy on the CB just said, 'Okay'. He turned around behind you ... keep on going." Molina then heard Catfish (gray pickup) transmit "[t]hey're [Aguirre and Carter] coming out from the road.... Everybody go, go, go."

Molina testified that Catfish (gray pickup) "indicated that he needed gas," and that Diamond Back (white pickup) responded that they could "either gas up in Oilton or go ahead and wait until further on the road." Molina testified "that's when the third voice came in and said, 'we'll just go

Page 1008

ahead and gas up in Bruni.' " As a result, Molina advised Aguirre to "look for vehicles stopping at gas stations ... in Bruni." When Carter and Aguirre drove into Bruni, they observed a white pickup truck at one service station and a blue pickup truck at another. These were the vehicles they had observed earlier, coming from the direction of the checkpoint. Carter and Aguirre proceeded to a lot approximately one mile from town and waited.

Shortly thereafter, the white pickup truck pulled into the lot. Carter and Aguirre decided to locate the other two (gray and blue) pickup trucks and had driven approximately three hundred yards when they spotted the blue truck heading in their direction. As the border patrol vehicle approached, the blue pickup decelerated noticeably. Aguirre noticed that the truck bed was covered with plywood and that the truck was "riding real low." Aguirre then passed by the blue pickup and saw that the gray truck was following it. Aguirre passed the gray pickup and after approximately one mile, turned around. Aguirre then saw the gray truck followed by the white truck heading back toward him. Aguirre testified that "my partner and I ... sat there and thought, hey, these guys are just the lookouts, or scouting. The load is probably in the blue pickup."

Aguirre then stopped the blue truck and testified that he did so because of "the whole scenario." He questioned the driver, defendant Lopez, about his nationality and what he was carrying in his truck. Aguirre testified that he asked Lopez twice if he could search the vehicle and that Lopez consented both times. After dropping the truck's tailgate and finding bundles of what appeared to be marijuana wrapped in plastic, the agents arrested Lopez.

Lopez was indicted on two counts: (1) conspiring to possess with intent to distribute marijuana; and (2) possessing marijuana with intent to distribute a quantity in excess of 100 kilograms (specifically, approximately 1,041 pounds). Before trial, Lopez moved to suppress the evidence. After a hearing, the district court denied the motion. At trial, the jury found Lopez guilty on count two but could not reach a verdict on count one, which was dismissed.

The district court sentenced Lopez to 97 months imprisonment and imposed a $15,000 fine and a special assessment of $50. The court also ordered a five-year term of supervised release. Lopez timely appealed.

II.

Lopez contends that the district court erred in not granting his motion to suppress. He appears to include within this issue the contention that he did not consent to the search of his truck. 2

As noted, Lopez testified at the suppression hearing, but limited his testimony to the consent issue. At the conclusion of the hearing, the district court ruled that "there was ample probable cause to stop the vehicle and consent to search." In reviewing the district court's denial of a motion to...

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28 practice notes
  • U.S. v. Cota-Lopez, No. CRIM.EP-02-CR-1072-P.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 13 Noviembre 2002
    ...and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority."); U.S. v. Lopez, 911 F.2d 1006, 1010 (5th Cir.1990) (it must be shown that the consent was not given "simply in acquiescence to a claim of lawful authority") (citations omitte......
  • U.S. v. Cardenas, No. 92-8660
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 9 Diciembre 1993
    ...v. Ramirez, 963 F.2d 693, 704-05 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 388, 121 L.Ed.2d 296 (1992); United States v. Lopez, 911 F.2d 1006, 1008 (5th Cir.1990). The district court's conclusions of law are reviewed de novo. United States v. Richardson, 943 F.2d 547, 549 (5th Cir.......
  • IN RE J.M., No. 90-FS-183
    • United States
    • 30 Diciembre 1992
    ...v. Hummer, 916 F.2d 186, 189 (4th Cir. 1990), cert denied, ___ U.S. ___, 111 S.Ct. 1608, 113 L.Ed.2d 670 (1991); United States v. Lopez 911 F.2d 1006, 1011 (5th Cir. 1990); United States v. Blakeney, 942 F.2d 1001, 1016 (6th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 881, 116 L.Ed.2d......
  • U.S. v. Zapata, No. 93-1349
    • United States
    • U.S. Court of Appeals — First Circuit
    • 11 Febrero 1994
    ...e.g., Schneckcloth v. Bustamonte, 412 U.S. 218, 231-32, 249, 93 S.Ct. 2041, 2049-50, 2059, 36 L.Ed.2d 854 (1973); United States v. Lopez, 911 F.2d 1006, 1011 (5th Cir.1990); United States v. Crespo, 834 F.2d 267, 271-72 (2d Cir.), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 ......
  • Request a trial to view additional results
28 cases
  • U.S. v. Cota-Lopez, No. CRIM.EP-02-CR-1072-P.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 13 Noviembre 2002
    ...and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority."); U.S. v. Lopez, 911 F.2d 1006, 1010 (5th Cir.1990) (it must be shown that the consent was not given "simply in acquiescence to a claim of lawful authority") (citations omitte......
  • U.S. v. Cardenas, No. 92-8660
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 9 Diciembre 1993
    ...v. Ramirez, 963 F.2d 693, 704-05 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 388, 121 L.Ed.2d 296 (1992); United States v. Lopez, 911 F.2d 1006, 1008 (5th Cir.1990). The district court's conclusions of law are reviewed de novo. United States v. Richardson, 943 F.2d 547, 549 (5th Cir.......
  • IN RE J.M., No. 90-FS-183
    • United States
    • 30 Diciembre 1992
    ...v. Hummer, 916 F.2d 186, 189 (4th Cir. 1990), cert denied, ___ U.S. ___, 111 S.Ct. 1608, 113 L.Ed.2d 670 (1991); United States v. Lopez 911 F.2d 1006, 1011 (5th Cir. 1990); United States v. Blakeney, 942 F.2d 1001, 1016 (6th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 881, 116 L.Ed.2d......
  • U.S. v. Zapata, No. 93-1349
    • United States
    • U.S. Court of Appeals — First Circuit
    • 11 Febrero 1994
    ...e.g., Schneckcloth v. Bustamonte, 412 U.S. 218, 231-32, 249, 93 S.Ct. 2041, 2049-50, 2059, 36 L.Ed.2d 854 (1973); United States v. Lopez, 911 F.2d 1006, 1011 (5th Cir.1990); United States v. Crespo, 834 F.2d 267, 271-72 (2d Cir.), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 ......
  • Request a trial to view additional results

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