U.S. v. Merryman

• Decision Date: 18 September 1980
• Docket Number: 79-1406,Nos. 79-1405,s. 79-1405
• Citation: 630 F.2d 780
• Parties: 6 Fed. R. Evid. Serv. 1128 UNITED STATES of America, Plaintiff-Appellee, v. Ethel Mae MERRYMAN and Kenneth Darrell Brown, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 780

630 F.2d 780

6 Fed. R. Evid. Serv. 1128

UNITED STATES of America, Plaintiff-Appellee, v. Ethel Mae MERRYMAN and Kenneth Darrell Brown, Defendants-Appellants.

Nos. 79-1405, 79-1406.

United States Court of Appeals Tenth Circuit.

Argued and Submitted July 8, 1980.

Decided Sept. 18, 1980.

Thomas S. Udall, Asst. U.S. Atty., Albuquerque, N.M. (R. E. Thompson, U.S. Atty., and Stanley K. Kotovsky, Jr., Asst. U.S. Atty., Albuquerque, N.M., with him on brief), for plaintiff-appellee.

William C. Marchiondo of Marchiondo & Berry, P. A., Albuquerque, N.M., for defendants-appellants.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Defendants were convicted of possession with intent to distribute marijuana and for aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The cause was tried to a jury. Verdicts of guilty were returned and the matter is before us on appeal. The sentences were a term of imprisonment of five years with a special parole term of two years to follow.

Defendants were arrested on February 1, 1979, after they had stopped their pickup truck at a filling station near Truth or Consequences, New Mexico.

Just prior to approaching a checkpoint operated by the U.S. Border Patrol, the truck had pulled over to the side of the road. The stop was observed by Phillip Woolford of the U.S. Border Patrol who was at the checkpoint station. Through binoculars, Woolford saw Brown get out of the truck, walk around it as if examining it, and then get back inside. After waiting for a string of traffic to pass the truck, a U-turn was made across the median and the truck went back in a southerly direction. Woolford said that he suspected that the truck was carrying illegal aliens. Because of this, Woolford followed the truck in a marked patrol car without activating his emergency equipment. He testified that the truck was of a type frequently used to transport illegal aliens, and that while following the truck he observed lumpy objects in the back covered with a tarp.

The truck left the highway at Truth or Consequences and turned into a gas station. Woolford followed. As he approached the truck, Brown got out and yelled to the station attendant for a can of oil. Woolford questioned Brown about his citizenship and received the reply, "American." Brown stated that he had borrowed the truck and did not know what was in the back. Woolford gave the following testimony concerning what took place:

And I stuck my head over the sideboard in preparation for reaching down and patting the aliens and telling them to come out from under there.

When I stuck my head over, I got a whiff of what I thought was marijuana, but at the same time, I could see debris of hay or something right up against the front of the headlight up underneath the tarp there, and my first instinct was, well, maybe it's hay, but I took two strong breaths intentionally, and identified it. I was sure it was marijuana.

The truck contained 242 pounds of marijuana.

Woolford then called for assistance and placed Mr. Brown and Ms. Merryman under arrest. Border Patrol Agent Phillip Sanchez arrived at the scene. Sanchez searched the cab of the truck prior to driving it back to the checkpoint. Approximately $6,000 in cash was found. A gasoline receipt for an airplane and a transmitter verifier of the kind often used by smugglers were also found. Defendants moved to suppress the marijuana plus the items found in the cab of the truck on the ground that the search and seizure was illegal. The motion was denied.

At trial, defendants presented a joint defense that they had borrowed the truck and that they were unaware of its contents.

Defendant's contentions in support of requested relief on appeal are:

1. That the marijuana and other items seized from the truck must be suppressed because these are the fruits of an unlawful search which violated the Fourth Amendment of the Constitution.

2. Reversible error is claimed in connection with the admission of evidence of two other drug related incidents, one involving Mr. Brown and the other involving Ms. Merryman. It is claimed that the incidents are unrelated to the charges in the present case and to the defendants and do not have significant probative value.

3. Reversible error as a result of admitting into evidence a photo array which was unnecessarily suggestive and lacked the necessary I.D. and other indicia of reliability.

4. The propounding of certain questions addressed to the defendants on cross-examination concerning what they told law enforcement authorities prior to trial is assigned as error; similarly, a comment made in closing argument concerning failure to call a certain witness was, it is said, a violation of their Fifth Amendment constitutional rights.

I. WAS THE SEARCH AND SEIZURE VALID?

We conclude that it was.

Agent Woolford did not have probable cause to search the defendants' truck based on the fact that it made a U-turn just prior to reaching the checkpoint and that he observed "lumpy objects" in the bed of the truck. However, additional considerations come into play when an officer is policing the border to prevent the entry of illegal aliens. The governmental interest in preventing such entry and the lack of practical alternatives led the Supreme Court in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) to hold that an officer on roving patrol may stop a vehicle if he is aware of specific articulable facts together with rational inferences from the facts which reasonably warrant suspicion that the vehicle contains aliens who may be illegally in the country. Probable cause is unnecessary under such circumstances to stop the car briefly in order to investigate the circumstances which have given rise to the suspicion.

The government was not required to stop the truck at the threshold of the investigation. Hence, it was not necessary to invoke the investigatory stop rule of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), at the check point.

What were the suspicious circumstances? Brown avoided the check point. He was driving a pickup truck which had lumpy objects in the bed of the truck. These were in plain view. The officer drove into a gas station, disembarked from the truck and questioned defendant Brown. The officer asked Brown his citizenship. Brown stated that he was an American and that he had borrowed the truck and did not know what was in the back. In checking out the mounds or lumps which were in the back of the truck, Woolford bent over and looked at the suspicious looking truck and its contents and as he did so he said he "got a whiff" of what he thought was marijuana. He could see hay or something up against the headlights underneath the tarp. He took two strong breaths in order to try to identify it and concluded that it was marijuana. It was. There were 242 pounds of it.

There can be no question but that this was what is called an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), and constitutes a Fourth Amendment restraint. The only question, then, it whether the stop satisfied the requirements set forth in Brignoni-Ponce, supra, and, if it did, whether the agent exceeded the scope of the investigatory search authorized by the circumstances. It is well settled that the stop must be justified by specific articulable circumstances which give rise to a reasonable suspicion that aliens were being transported in the truck.

The evidence showed that the agent conducting the search knew as he approached the defendant Brown at the gas station that the truck had made a U-turn at the last possible point at which it could avoid the checkpoint. Furthermore, from Woolford's experience, he knew that vehicles which made such U-turns, such as the truck in this case, often did so to evade the checkpoint and often carried illegal aliens. Also, the vehicle was a pickup truck with sideboards of the type used for transporting illegal aliens. A visible condition was the presence of a tarp in the back of the truck which covered the lumpy objects which have been described and which were regarded by the agent as being bodies.

Brignoni-Ponce gives a rather full discussion of the factors to be considered in determining when an articulable suspicion is shown which justifies stopping a vehicle in border areas. ¹

Brignoni-Ponce approved the investigatory approach of the vehicle under the circumstances there present.

In our view, the facts in this case were sufficient to justify an objective suspicion on the basis of which an investigatory check of the vehicle could be carried out. The defendants, however, rely on United States v. Ogilvie, 527 F.2d 330 (9th Cir. 1975), wherein it was held that the mere fact that defendant avoided a checkpoint by exiting the highway just prior to reaching it did not provide the officers with the requisite suspicion so as to justify a stop under the Brignoni-Ponce formula. The court in Ogilvie noted that there was no evidence that defendant was driving in a fast, unusual or erratic manner, or that there had been disobedience of any traffic laws. The present case does not conflict with Ogilvie.

Here it is not merely avoidance of the checkpoint. It is the total circumstances which must be looked to in deciding whether an articulable suspicion is present. The facts which gave rise to the agent's suspicion here that a transportation of illegal aliens was taking place were more abundant as well as more cogent than were the facts in Ogilvie, supra. We hold that the agent was justified in his suspicions, whereby he did not violate the defendants' rights.

The defendants make the further point that the agent exceeded his legal authority by bending over the sideboards of the truck in order to pat the lumps which he thought were aliens. It was only then that he smelled the marijuana. This Circuit has held that the smelling of marijuana...