U.S. v. Montez

• Decision Date: 21 January 1992
• Docket Number: No. 91-5504,91-5504
• Citation: 952 F.2d 854
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alejandro MONTEZ, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 854

952 F.2d 854

UNITED STATES of America, Plaintiff-Appellee, v. Alejandro MONTEZ, Jr., Defendant-Appellant.

No. 91-5504.

United States Court of Appeals Fifth Circuit.

Jan. 21, 1992.

John R. Carter, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before REYNALDO G. GARZA and GARWOOD, Circuit Judges, and SCOTT, District Judge. ^*

REYNALDO G. GARZA, Circuit Judge:

This is an appeal from a revocation of supervised release and a term of further imprisonment imposed upon Alex Montez, Jr. ("Montez"), who was found to have violated the terms of his release by possessing cocaine. Montez claims that the cocaine, found by agents of the United States Bureau of Alcohol, Tobacco and Firearms ("ATF"), should have been suppressed at his revocation hearing. Moreover, Montez claims that even if the cocaine were properly admitted, there was insufficient evidence that he knowingly possessed it. Finally, Montez contends that the district court committed reversible error by failing to consider the Chapter Seven policy statements of the U.S. Sentencing Guidelines in revoking his supervised release.

We AFFIRM the district court in all respects.

PROCEDURAL HISTORY

In January, 1988, a federal grand jury returned a superseding indictment charging Montez with conspiring to possess (count 1), and possessing (count 2), cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and using a communication device to facilitate the commission of a drug felony in violation of 21 U.S.C. § 843(b) (count 3). Pursuant to a plea agreement, Montez pleaded guilty to the conspiracy charge in exchange for the promise of the United States to dismiss the remaining counts of the indictment at sentencing. Montez was sentenced under the Sentencing Guidelines in July, 1988, to 16 months imprisonment to be followed by three years of supervised release, fined $7,500.00 and assessed $50.00 for the Crime Victims Fund. Montez served his term of imprisonment and was released.

In August, 1990, after a search of Montez's vehicle resulted in the seizure of a small quantity of cocaine, the district court issued an arrest warrant for Montez which was executed on August 28, 1990. A preliminary hearing pursuant to Federal Rule of Criminal Procedure 32.1 and a bond hearing were held on September 4, 1990. The magistrate found probable cause and denied bond. The government filed a motion for revocation of supervised release on September 6, 1990. Originally the government had filed criminal charges against Montez, but these were dropped on the government's own motion.

Prior to the revocation hearing, held November 9, 1990, Montez filed a motion to suppress the cocaine found in the search of his vehicle, challenging the scope of the search conducted pursuant to a federal search warrant. At the conclusion of the hearing, the district court denied Montez's motion to suppress and revoked Montez's supervised release, sentencing him to an additional term of imprisonment of two years. Montez did not appeal in timely fashion, but the district court entered an order finding excusable neglect and extending time for doing so.

FACTS

On August 17, 1990, Special Agent Robert Rowe, a fourteen year veteran of ATF, obtained a federal search warrant for Montez's pickup truck. The search warrant was based on information received by Rowe from an agent of the Drug Enforcement Administration ("DEA"), who in turn had obtained it from a confidential informant. The informant had told the DEA agent that Montez always carried a gun under the seat of his truck and that said informant had seen it there on several occasions. Moreover, the informant stated that Montez was dealing in narcotics and had the gun for protection. The informant also told the agent that Montez worked at a particular garage in San Antonio, and described Montez's truck and the gun.

After conducting his own investigation to confirm the ownership of the truck, Rowe obtained a warrant to search a "1984 Chevrolet pick-up truck, gold over tan in color, bearing Texas License Plate No. 608 8EP." It also designated the property to be sought and, if found, seized, as "a semi-automatic handgun, dark in color, with brown grips." ATF agents executed the warrant on August 18, 1990. They located the empty vehicle at Montez's place of employment at approximately 5:30 p.m. that Saturday evening and kept it under surveillance until approximately 11:50 that night. No one approached the truck during that time.

At approximately 10:00 p.m., after the outside lights of the garage/service station had been extinguished, the agents observed approximately ten late model luxury vehicles arrive at the garage. The occupants got out of the vehicles, went into the station, and quickly returned to their vehicles without making any obvious purchases of goods or services.

At approximately 11:50 p.m., four men, including Montez, left the station. Montez approached the truck, got in and drove off. The ATF agents stopped him about five minutes later and searched his truck. The search yielded neither a gun nor ammunition. The agents did, however, find a small folded piece of paper in a map pocket on the driver's side of the vehicle. The paper was too small to contain a gun or even a bullet, and had no markings on the outside. Nevertheless, the ATF agent unfolded the paper and found that it contained white powder, which field tested positive for cocaine. At the bottom of this pouch, in which the agents found the cocaine, was a small tool which Montez had to use to start the truck, the ignition of which was broken.

ANALYSIS

The parties dispute whether or not the cocaine was properly seized. Our holding that the exclusionary rule does not apply in supervised release revocation hearings absent a showing of harassment renders this issue irrelevant. Moreover, our holding on this issue leads us to conclude that the district court's finding of Montez's knowing possession of a controlled substance was not clearly erroneous. Finally, we find that Montez's contention that the district court failed to consult the policy statements in the Sentencing Guidelines has been waived.

I. The Exclusionary Rule does not Apply to Revocation of Supervised Release Hearings.

Montez contends that the search and seizure of the packet containing the cocaine exceeded the scope of the warrant, which only authorized seizure of a firearm. See United States v. Espinoza, 826 F.2d 317 (5th Cir.1987) (officers with a warrant to seize only narcotics properly seized guns which were in "plain view"). We find this issue irrelevant because we hold that the exclusionary rule, absent a showing of harassment, does not apply to revocation of supervised release hearings.

According to the Fourth Amendment of the United States Constitution, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ..." Under the judicially created exclusionary rule, "evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of [an] illegal search and seizure." United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974) (witness summoned to testify before a grand jury may not refuse to testify on the ground that the questions he must answer are based on evidence obtained in violation of the Fourth Amendment) (citations omitted). The Supreme Court has made clear, however, that the exclusionary rule is meant to protect society, not the rights of the damaged individual:

The primary justification for the exclusionary rule ... is the deterrence of police conduct that violates Fourth Amendment rights. Post- Mapp [v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ] decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, ...

Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976). In other words,

[t]he rule is calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it.

Calandra, 414 U.S. at 347, 94 S.Ct. at 620 (quoting Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960)).

Montez, while admitting at oral argument that the courts have never applied the exclusionary rule at sentencing hearings, would nevertheless have us extend the rule to cover revocation of supervised release hearings. Before doing so,

we must weigh the benefits to be derived from this proposed extension of the exclusionary rule [against the potential damage]. Suppression of the use of illegally seized evidence against the search victim in a criminal trial is thought to be an important method of effectuating the Fourth Amendment. But it does not follow that the Fourth Amendment requires adoption of every proposal that might deter [official] misconduct.

Calandra, 414 U.S. at 350, 94 S.Ct. at 621.

This Court has previously held "that the exclusionary rule does not apply to probation revocation hearings absent police harassment of probationers." United States v. Wiygul, 578 F.2d 577, 578 (5th Cir.1978) (per curiam) (citing United States v. Brown, 488 F.2d 94, 95 (5th Cir.1973) (per curiam) (alternate holding)). This is because, as the Ninth Circuit has observed,

[t]he primary purpose of probation, which has become an integral part of our penal system, is to promote the rehabilitation of the criminal by allowing him to integrate into society as a constructive...