U.S. v. Martinez
| Decision Date | 14 January 1987 |
| Docket Number | No. 85-2836,85-2836 |
| Citation | 808 F.2d 1050 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sharon Lanelle MARTINEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lucien M. Campbell, Nancy B. Barohn, Asst. Federal Public Defenders, San Antonio, Tex., for Martinez.
Michael R. Hardy, Helen M. Eversberg, U.S. Attys., San Antonio, Tex., for U.S.
Appeal from the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, WISDOM and HIGGINBOTHAM, Circuit Judges.
This appeal concerns the lawfulness, under the Fourth Amendment, of the stop and search of an automobile. An agent of the Drug Enforcement Agency suspected that the occupants of an automobile were engaged in or about to engage in the manufacture of methamphetamine, a controlled substance. After following the automobile for awhile, he stopped it on the highway. A search of the interior and trunk of the automobile revealed incriminating evidence. The driver, Jeffrey Berryman, and his passenger, Sharon Martinez, were later charged with conspiracy to manufacture methamphetamine. At trial, Martinez moved to suppress the evidence on several Fourth Amendment grounds: The agent did not have reasonable suspicion to stop the automobile; he did not have probable cause to arrest her; and his search was neither incident to a lawful arrest nor justified by probable cause. 1 After the denial of her motion to suppress and her later conviction, she appeals. We affirm.
On March 19, 1985, Tommy Harr, an experienced special agent for the DEA, visited the chemical supply company of Aldrich Scientific in San Antonio. Aldrich Scientific sells chemicals to the public and Harr knew that they had previously supplied chemicals to persons engaged in the manufacture of methamphetamine. While in the company's office, Harr noticed a receipt for several chemicals on an employee's desk. From his experience and training, Harr knew that all the chemicals listed on the receipt were those used in the manufacture of methamphetamine and phenyl-2-propanone, also a controlled substance, and an immediate precursor to methamphetamine. The receipt did not list the buyer's name, but indicated that the purchase was made for cash that day. Harr asked the employee who had bought the chemicals and was told that the purchaser was the driver of the maroon Oldsmobile parked out front. Harr looked outside and saw Berryman closing the trunk of the Oldsmobile. Berryman and his passenger, Sharon Martinez, then drove away.
Harr followed them in his unmarked car. They stopped once at a gas station, but did not open the trunk. Maintaining his surveillance, Harr again followed them as they left the gas station. Harr soon realized that Berryman and Martinez were aware of his tailing: Berryman drove erratically, often slowing down and changing lanes; he once left the main highway only to reenter it later; and Martinez often looked back over her shoulder at Harr. After about twenty minutes of tailing and after Berryman turned onto I-35 heading north out of San Antonio, Harr summoned for a marked police car to stop the Oldsmobile. The police car and three or four other DEA cars arrived and surrounded the Oldsmobile on the side of the highway. The officers ordered Berryman and Martinez out of their car and patted them down for weapons. The two were not handcuffed and the officers' guns remained holstered.
The officers noticed a strong acidic odor coming from the clothes of Berryman, Martinez, and the trunk of the Oldsmobile. Harr associated the smell with that of clandestine methamphetamine laboratories that he had previously seized. He noticed also that the smell coming from Martinez's clothes was much stronger than that from Berryman or the Oldsmobile and could not be attributed to the chemicals purchased at Aldrich and believed to be in the trunk.
Harr took Berryman aside to question him. Berryman acknowledged that he had been to Aldrich and that he had been aware of Harr's surveillance. When asked why he purchased the chemicals, Berryman said that he had purchased them for someone else. When asked who that was, Berryman replied: Asked what he meant, Berryman answered: "I think they would kill me." Harr then advised Berryman and Martinez of their constitutional rights.
Harr began a search of the automobile. First, he opened the trunk and found the chemicals that were purchased at Aldrich Scientific. He directed Kevin Matheny, a San Antonio police officer assigned to the DEA's joint task force, to search the remainder of the Oldsmobile for the receipt from Aldrich and additional chemicals. On the floorboard underneath Martinez's seat, in plain view, Matheny saw a brown paper bag and several torn pieces of paper, which had apparently spilled from the bag. Upon examining these papers, officer Matheny recognized them as part of a receipt from Aldrich. He and Harr recognized the remaining papers as part of a recipe for the manufacture of methamphetamine, containing a list of the ingredient chemicals, diagrams, and instructions. Matheny also found an automatic pistol, ammunition, and a hunting knife in the automobile. After the search, Harr brought Berryman and Martinez to his office where they were formally arrested and charged.
Our first inquiry is whether Harr lawfully stopped the Oldsmobile. We have no doubt that the stop was a "seizure" that implicates the Fourth Amendment prohibition against unreasonable searches and seizures. Not every seizure is an arrest, however, that must be justified by probable cause. In Terry v. Ohio, 2 the Supreme Court recognized that a reasonable suspicion of criminal activity based on contemporaneous observations may justify a temporary stop and detention for the purpose of investigating that suspicion, even though the officer does not have probable cause to believe that a particular crime has been committed. Whether a detention is an arrest or merely a Terry- stop depends on the "reasonableness" of the intrusion under all the facts. United States v. Sharpe. 3
Sharpe is dispositive of this case. In Sharpe, a DEA agent on patrol observed a pickup truck and a car traveling together in an area frequented by drug traffickers. The pickup truck had a camper top with covered windows and appeared to be heavily loaded. After following the two vehicles for awhile, the agent summoned a marked patrol car to help stop the vehicles. When the police unit arrived, the two vehicles left the main highway and, after taking a circuitous route, reentered it. When a stop was attempted the two vehicles separated; the agent stopped the car and the police officer stopped the pickup farther along the highway. The officer drew his gun, ordered the driver out of the truck, and patted him down for weapons. He detained the driver for fifteen minutes until the DEA agent arrived. At the scene, the DEA agent detected the smell of marijuana from the rear of the truck, opened the camper door, and found several bales of marijuana. The entire stop took about twenty minutes.
On review, the Court held that the detention of the driver was a proper investigative stop and not a de facto arrest. 4 In reaching its conclusion, the Court considered it "appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." 5 Further, it added: "A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing." 6
We agree with the district court that the stop of Berryman and Martinez was an investigative stop that required only a reasonable suspicion of criminal activity. Agent Harr's suspicions were aroused for the first time at the offices of Aldrich and as the two were driving off. Because he did not know their names or where they were heading, the stop on the highway was a reasonable means of confirming or dispelling his suspicions. The method of the stop--blocking the Oldsmobile, ordering the occupants out of the car, and patting them down for weapons--is a reasonable means of effecting the stop and ensuring the safety of the officers and does not convert the stop into a de facto arrest. 7 Once he had stopped the Oldsmobile, Harr quickly pursued his investigation. During the entire stop, which lasted from fifteen to thirty minutes, Berryman and Martinez were not handcuffed nor placed in a squad car. 8
The next question in our inquiry is whether Harr had a reasonable suspicion to believe that the occupants of the Oldsmobile were engaged in criminal activity. To pass muster, Harr's suspicion must have been based on specific and articulable facts and not mere hunches. 9 Second, we must gauge those facts not individually, but in their totality and as seen and interpreted by officers of Harr's experience. 10 Finally, the suspicion must justify the scope of the intrusion on privacy that results from the stop. 11
The most prominent circumstance supporting the reasonableness of Harr's suspicion is Berryman's purchase of chemicals at Aldrich Scientific. The receipt listed the seven chemicals that Harr knew to be the ingredients for manufacturing phenyl-2-propanone and liquid methamphetamine. Although each of these chemicals has other, legitimate uses, Harr knew of no legitimate use for the particular combination of chemicals that Berryman purchased. We find that this observation, along with the other circumstances of the purchase, 12 is sufficient to justify Harr's suspicion that the occupants of the Oldsmobile intended to use the chemicals to manufacture methamphetamine. 13
Martinez argues that even if Harr had reason to suspect that Berryman was engaged in criminal activity, Harr had no reason to suspect...
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