U.S. v. Muniz-Melchor

Citation894 F.2d 1430
Decision Date12 February 1990
Docket NumberMUNIZ-MELCHO,No. 89-1178,D,89-1178
Parties15 Fla. L. Week. D2554 UNITED STATES of America, Plaintiff-Appellee, v. Geronimoefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Thomas S. Morgan, Midland, Tex., (court appointed), for defendant-appellant.

Theodore R. Mitchell, Charles K. Novo-Gradac, White, Novo-Gradac, & Thompson, Saipan, Cmwlth. of Northern Mariana Islands, for plaintiffs-appellees.

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

Before GOLDBERG, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Geronimo Muniz-Melchor (Muniz-Melchor) appeals his conviction of possession of marihuana with intent to distribute it in violation of 21 U.S.C. Sec. 841(a)(1). Muniz-Melchor contends that the district erred in not suppressing the marihuana removed from a tank mounted in the bed of his truck as fruit of an illegal search under the Fourth Amendment. We affirm.

Facts and Proceedings Below

At approximately 6:15 p.m. on April 12, 1987, Muniz-Melchor approached a temporary fixed checkpoint of the United States Border Patrol on Highway 385 approximately five miles south of Marathon, Texas, and seventy miles north of the U.S.-Mexican border. A "slow" sign appeared about a quarter of a mile south of the checkpoint, followed shortly thereafter by a "stop" sign, traffic cones, and flashers leading travelers into the primary inspection area. The checkpoint itself consisted of a Suburban and two Border Patrol sedans, which were used as pursuit vehicles. Three Border Patrol agents, all of whom were in uniform and apparently armed, manned the checkpoint for seven days, pursuant to the orders of their field operations supervisor. (April 12 was the fifth day in which the checkpoint operated.) The agents stopped most traffic traveling north on U.S. Highway 385 in order to inquire as to the immigration status of such travelers.

Complying with the signal of Border Patrol agent Johnny Gutierrez (Gutierrez), who was also an agent of the U.S. Customs and Immigration Department (the Customs Department), Muniz-Melchor stopped his black Ford pickup truck at the checkpoint. According to Gutierrez's testimony at Muniz-Melchor's trial, Gutierrez identified himself and asked Muniz-Melchor to identify himself, and Muniz-Melchor complied with this request. 1 Gutierrez then asked Muniz-Melchor if he was coming from Mexico, and Muniz-Melchor responded that he had been visiting his parents in Mexico for three days. Gutierrez asked Muniz-Melchor for proof of his immigration status, and Muniz-Melchor produced valid documentation. Gutierrez then noticed that Muniz-Melchor did not appear to have any luggage or extra clothing or the like with him.

Having been trained in tank concealment by the Customs Department, Gutierrez also took special notice of a propane tank mounted in the open bed of Muniz-Melchor's truck. The tank had at least a fifty-five gallon capacity. It was mounted immediately behind the cab of the truck and spanned the width of and rose above the sides of the bed of the truck. 2 Gutierrez tapped the side of the tank with his pocket knife, as he habitually did to all such tanks. According to Gutierrez, the tank did not yield the bell-like ring of a tank whose exterior has not been penetrated in some manner. Gutierrez also noticed scratch marks on the side of the tank, indicating to Gutierrez that the tank may have been laid down on its side. 3

According to Gutierrez, only a few minutes after Muniz-Melchor's initial stop, he asked Muniz-Melchor for his permission to inspect the truck and to move the truck to the secondary inspection area, and Muniz-Melchor agreed to these requests. In response to defense counsel's query on direct examination as to whether Muniz-Melchor consented to the search of his truck by Gutierrez, Muniz-Melchor responded, "No. Only as they search everyone, just around like that. Not so they would open everything and stuff." Before Muniz-Melchor's truck was moved to the secondary area, Gutierrez noticed that, although the bed and the underside of the truck were dirty, the bolts securing the tank to the bed of the truck were clean, indicating to Gutierrez that the tank had been recently removed. Gutierrez then asked Muniz-Melchor whether the tank had been removed, and Muniz-Melchor responded that the tank had not been removed since its installation two years earlier.

At the secondary area, Gutierrez examined the truck more closely. According to Gutierrez, the fuel gauge on the tank appeared to be stuck at fifty-five gallons because it would not move when the truck was rocked. Gutierrez testified that he had seen similar faulty gauges on other propane tanks with false compartments.

After Gutierrez consulted with the other Border Patrol agents at the checkpoint, one of the agents called the U.S. Drug Enforcement Administration (DEA) for assistance. According to Gutierrez, he informed Muniz-Melchor of this fact, and Muniz-Melchor responded that, if there was something in there, the agents must prove it, but that there was nothing in there.

The DEA agents arrived approximately thirty to forty-five minutes later and were apprised of the developments up to that point. According to DEA special agent Tom Kelly (Kelly), he then asked Muniz-Melchor, through Gutierrez as an interpreter, whether Muniz-Melchor had any problems with Kelly's further inspection of the truck, and Muniz-Melchor agreed to his request. After noting the scratches and clean bolts of the tank, the DEA agents moved the truck away from the secondary inspection area for safety purposes in order to vent the propane from the tank. The agents then removed the tank from the bed of the truck. Kelly discovered a false compartment inside the tank, containing approximately one hundred pounds of marihuana wrapped in cellophane. The agents then arrested Muniz-Melchor, at approximately 8:30 p.m. 4 According to Gutierrez, as he read Muniz-Melchor his Miranda rights, Muniz-Melchor exclaimed, "They put it in there."

Muniz-Melchor was indicted of possession of marihuana with intent to distribute it in violation of 21 U.S.C. Sec. 841(a)(1). He filed a pretrial motion to suppress the marihuana removed from the tank as fruit of an illegal search under the Fourth Amendment. Waiving his right to a jury trial, Muniz-Melchor consented to the district court's conducting a joint suppression hearing and bench trial. The district court denied Muniz-Melchor's suppression motion and convicted him of the offense as charged. The court found that Gutierrez's tapping on the tank was an unobtrusive action not amounting to a search under the Fourth Amendment. The court also found that Muniz-Melchor voluntarily consented to the subsequent searches by both Gutierrez and Kelly and, further, that the agents had probable cause to believe Muniz-Melchor was trafficking in contraband before he purportedly consented to Kelly's further search of the truck. The district court sentenced Muniz-Melchor to three years' imprisonment, two years' supervised release, and a fifty dollar special assessment. This appeal followed.

Discussion

Muniz-Melchor first challenges the district court's determination that Gutierrez's tapping on the side of the propane tank did not constitute a search under the Fourth Amendment. This is an issue of first impression. Cf. United States v. Coburn, 876 F.2d 372, 373 (5th Cir.1989) (agent tapped on gas tank mounted in bed of defendant's truck but after agent received defendant's consent to inspect truck).

Muniz-Melchor essentially contends that, because Gutierrez's tapping--for which there was neither a warrant, probable cause, nor express consent--tainted the subsequent searches by Gutierrez and Kelly, the district court should have suppressed the marihuana seized from the tank. Cf. United States v. Miller, 821 F.2d 546, 549-50 (11th Cir.1987) (stop of defendant's car without reasonable suspicion tainted defendant's subsequent consent to car's search). Muniz-Melchor's contention obviously is premised on the assumption that the tapping constituted a search under the Fourth Amendment. The district court, however, specifically found the tapping to be an unobtrusive action not constituting a search under the Fourth Amendment. While we review questions of law de novo,

"[i]n reviewing a trial court's ruling on a motion to suppress based on live testimony at a suppression hearing, the trial court's purely factual findings must be accepted unless clearly erroneous, or influenced by an incorrect view of the law, and the evidence must be viewed most favorable to the party prevailing below...." United States v. Maldonado, 735 F.2d 809, 814 (5th Cir.1984).

Under the Fourth Amendment, there are "two analytically distinct yet 'inevitably intertwined' " issues: (1) whether the disputed investigative procedure invaded a privacy interest of the defendant protected under the Fourth Amendment; and (2) whether that invasion was reasonable under the circumstances. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 2565, 65 L.Ed.2d 633 (1980) (Blackmun, J., concurring) (citation omitted), quoted in United States v. Parks, 684 F.2d 1078, 1083 (5th Cir.1982). Thus, the threshold issue is whether Gutierrez's tapping on the tank invaded a privacy interest of Muniz-Melchor protected under the Fourth Amendment.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme Court rejected the notion that what constitutes a trespass under various property laws necessarily constitutes a search under the Fourth Amendment. See Katz, 88 S.Ct. at 511-12 ("the Fourth Amendment protects people, not places"). In light of its analysis in Katz, the Supreme Court instead has adopted a reasonable or legitimate expectation of privacy test. 5 See, e.g., California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988) (reasonable); ...

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