U.S. v. Millan-Diaz

• Decision Date: 15 September 1992
• Docket Number: MILLAN-DIA,D,No. 91-2231,91-2231
• Citation: 975 F.2d 720
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Marcelinoefendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 720

975 F.2d 720

UNITED STATES of America, Plaintiff-Appellant, v. Marcelino MILLAN-DIAZ, Defendant-Appellee.

No. 91-2231.

United States Court of Appeals, Tenth Circuit.

Sept. 15, 1992.

Kristina L. Ament, Atty., Dept. of Justice, Washington, D.C. (Don J. Svet, U.S. Atty., and Presiliano A. Torrez, Asst. U.S. Atty., Albuquerque, N.M., with her, on the briefs), for plaintiff-appellant.

Rosanne Camunez, Las Cruces, N.M., for defendant-appellee.

Before BALDOCK, SETH, and KELLY, Circuit Judges.

SETH, Circuit Judge.

Defendant, Marcelino Millan-Diaz, was indicted for possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(D). The district court granted Defendant's motion to suppress marijuana found in his car as well as his statements to Border Patrol agents. The United States appeals. We affirm.

On July 9, 1991, at approximately 1:45 a.m., Defendant was stopped by United States Border Patrol Agents Clinton and Olson who were on a roving patrol. Agent Clinton testified that he stopped Defendant's vehicle for the purpose of determining whether Defendant was transporting illegal aliens. At the time he was stopped, Defendant was driving a 1978 Ford Granada and was traveling north on New Mexico Highway 185 (also known as Highway 85). There was no traffic violation.

Highway 185 begins south of Las Cruces and parallels Interstate 25 for over 50 miles until it joins the interstate near Arrey, New Mexico. Agent Clinton testified that traffic on Highway 185 is light in the hours between midnight and 5:00 a.m. and that he was familiar with the only three vehicles that regularly traveled that stretch of road at those hours. He also testified that when the Highway 185 checkpoint is closed, as it was on the evening of July 9, vehicles smuggling illegal aliens frequently use that route in order to avoid the checkpoint on Interstate 25.

In response to their questions, Defendant produced proper identification and told the agents that he was traveling from El Paso, Texas to Albuquerque, New Mexico. He stated that he had stopped in Las Cruces to purchase gas but that he could not remember where.

Agent Clinton asked Defendant what was in the trunk and Defendant replied that it was empty. Clinton then asked Defendant for permission to search the trunk and Defendant consented. After confirming that no illegal aliens were present in the trunk of the car, Agent Clinton began banging inside the trunk and shook the spare tire.

The testimony differs on whether Defendant consented to a search of the remainder of the car. Agent Clinton testified that he asked Defendant's permission to search the car and that he consented. Defendant claims that he was never asked for permission to search the rest of the car.

While Agent Olson stood with Defendant at the agents' car, Agent Clinton continued to inspect the car. As he was tapping on the passenger side rocker panel he heard a dull thud instead of the hollow ring that he heard when he tapped on the driver's side rocker panel. He also noticed a damaged area in the rear wheel well in line with the rocker panel. At this point Agent Clinton suspected that something had been placed in the hollow area in the running board of the car. He detained Defendant further and asked him to accompany the agents to the Border Patrol checkpoint on Interstate 25 so that the agents could investigate the car further.

When Defendant was asked to accompany the agents to the checkpoint for a further inspection of his car, Agent Clinton was in possession of the keys to Defendant's car. The agent testified that at that point "he [the Defendant] would be considered under arrest, since his freedom of movement was under our control." However, he was not then formally arrested. Defendant consented to go to the checkpoint, and Agent Clinton drove Defendant's car while Defendant rode with Agent Olson in the Border Patrol car. This was a distance of 18 to 20 miles. Defendant was put in the checkpoint building. At the checkpoint, Agent Clinton removed the rocker panel step plate and found a compartment containing approximately 17 pounds of marijuana.

After Defendant was formally placed under arrest and was read his Miranda rights, he agreed to answer questions. Defendant admitted that his car contained 10 to 15 pounds of marijuana which belonged to him but he refused to answer questions regarding his supplier.

An indictment was returned against Defendant charging him with possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(D). Before trial, Defendant moved to suppress the marijuana found in his car and his statements made to Border Patrol agents while in custody.

The district court granted the motion to suppress. The court found that the agents had reasonable suspicion that Defendant was transporting illegal aliens but that the suspicion was dispelled once the agents looked in the vehicle and it became obvious that Defendant was the only person traveling in it. The court held that the search from that point forward was unlawful because Defendant was effectively under arrest without probable cause....