U.S. v. Orduno-Martinez
| Decision Date | 22 May 1991 |
| Docket Number | ORDUNO-MARTINE,M,Nos. 89-50490,s. 89-50490 |
| Citation | 933 F.2d 1017 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee. v. Ramonanuel Machuca-Leyva, Sergio Rivera-Morales Alfredo Gonzalez-Morales, Francisco Gonzalez-Martinez, Marco Isidro Medina-Hermosillo, Julio Gomez-Padilla, Arturo Urias-Gastelum, Blas Rafael Tirado-Garcia, Arturo Trujillo-Garcia, Defendants-Appellants, to 89-50499. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before REINHARDT and LEAVY, Circuit Judges, and KING, *, District Judge.
This drug conspiracy case involves ten defendants. The defendants were tried in two separate trials. 1 Each was convicted of various drug related offenses. 2 All ten have filed appeals, many of which involve similar, if not identical, issues.
On the morning of December 5, 1988, United States Customs inspectors and agents at Otay Mesa, California, were alerted by a confidential informant to watch for a vehicle bearing a particular license plate. At approximately 9:30 a.m., an orange tractor truck (hereinafter referred to as the "decoy truck"), pulling a white trailer and bearing the suspect license number was found parked at the south dock of the commercial port of entry at Otay Mesa, awaiting inspection. When the decoy truck was unloaded over the course of the next few hours, Customs inspectors determined that it was carrying approximately 20,000 pounds of bagged mesquite charcoal. The driver was given clearance papers to enter the United States.
At approximately noon, after the decoy truck had been inspected and cleared, the driver, appellant Gonzalez, moved it from the south dock to the east dock and reported it a second time for inspection. Because different Customs inspectors work the south and east docks, the inspectors at one dock area are not normally aware that a truck has previously reported at another dock, been inspected, and cleared for entry into the United States.
At the east dock, Customs Inspector Henry received paperwork indicating that the decoy truck had reported for inspection. From the paperwork, he called out the name of the driver. Gonzalez reported to Henry and they walked together over to the decoy truck. Henry instructed Gonzalez to have the right half of the truck's cargo unloaded onto the dock. After the truck was unloaded, Gonzalez contacted Henry to tell him the truck was ready for inspection. Henry inspected the cargo, determined it was all charcoal, and told Gonzalez to reload his truck. Approximately one-half hour after the second inspection was complete, the decoy truck was still parked at the east dock. Because other trucks were awaiting inspection, Henry tried to locate Gonzalez to instruct him to vacate the space. After another half-hour, Gonzalez reappeared, was chastised by Inspector Henry for allowing his inspected truck to maintain a space so long, and explained to Henry that his delay was due to stomach problems.
At approximately 2:15 p.m., while the decoy truck was still parked at the east dock and being inspected a second time, Orduno drove into the commercial inspection compound in a second orange tractor truck (hereinafter the "loaded truck"), bearing license plates identical to the decoy truck and pulling another white trailer.
Orduno drove the loaded truck straight through the customs compound without reporting it for inspection. As Orduno exited the inspection area in the loaded truck, however, he presented for clearance the papers that were originally issued to Gonzalez at 9:30 a.m. These papers (from an unsuspecting customs agent's point of view) reflected that Orduno's truck had been inspected and cleared for entry into the United States.
Once Orduno left the commercial inspection area, he met briefly with appellant Machuca before driving the loaded truck along the border five to six miles to San Ysidro, California, where he parked the truck in a lot. Shortly after Machuca met with Orduno, Machuca met with Rivera, who was driving a white station wagon. Thereafter, Rivera followed Orduno and the loaded truck to San Ysidro.
Once parked in San Ysidro, Orduno and Rivera removed the license plates from the loaded truck. Orduno and Rivera then returned to the commercial port of entry at Otay Mesa in the white station wagon. Simultaneously, Gonzalez departed from the inspection compound in the decoy truck and presented the paperwork that had been issued to Orduno when he entered the inspection compound that afternoon in the loaded truck.
The decoy truck was then parked just inside the United States border. At some time between 4:00 and 4:30 p.m., Gonzalez, along with another unidentified person, met with Orduno and Rivera in the white station wagon, and then drove in the wagon to a restaurant in Otay Mesa.
After dining, the four left the restaurant and drove back to the decoy truck. Two of the four then got into the decoy truck (which had been under constant surveillance), and drove it back into Mexico following Orduno and Rivera, who remained in the station wagon. The decoy truck returned to Mexico without delivering its cargo.
While the preceding events were taking place, agents were maintaining constant surveillance on the loaded truck that had been parked earlier near the border by Orduno and Rivera.
That night, Customs Case Agent Deidre Mahon, suspecting contraband in the loaded truck, instructed a member of the surveillance team, San Diego Police Department narcotics officer Ben Pasana, to perform what the government characterizes as an "extended border search" of the loaded truck. Under Mahon's direction, Pasana drilled a small hole in the undercarriage of the truck with a twelve-inch drill bit. Upon removal of the drill bit, the agents conducted Customs agents continued to watch the loaded truck throughout December 6, 1988, but no one came near it.
a field test on the debris stuck to the bit and determined that the truck contained marijuana.
The surveillance continued into December 7, 1988. At approximately 12:15 a.m., appellants Machuca and Morales drove up to the loaded truck in a white Jetta and dropped off Orduno and Rivera. Orduno climbed into the driver's seat and Rivera got into the passenger's side. Orduno then drove the truck two and one-half hours north to Ontario, California. Machuca and Morales followed in the white Jetta. Government agents caravaned behind the loaded truck and the Jetta.
Orduno and Rivera eventually parked at a truck stop in Ontario and were picked up by Machuca and Morales. Machuca then drove the Jetta around the area before the four finally checked into the Landmark Inn, a motel adjacent to the truck stop.
Later that same day another appellant, Gomez, rented a yellow Ryder van and checked into a Travelodge in Ontario. From a pay phone at the Travelodge, Gomez called Gonzalez' residence in Muscoy, California, a town approximately ten to fifteen miles from the truck stop.
Early on the morning of December 8, 1988, agents observed Machuca and Morales leave a restaurant parking lot adjacent to the truck stop in the Jetta and drive eastbound on Interstate 10. A black Mustang and maroon van fell in behind the Jetta in caravan fashion. Several minutes later, Orduno and Rivera left the parking lot in the loaded truck and drove east on Interstate 10 before exiting onto a paved, two-lane country road leading to Muscoy. Agents followed the loaded truck, but did not follow the Jetta, Mustang, or maroon van after the truck left the interstate.
Once in Muscoy, Orduno and Rivera backed the truck into the fenced-in backyard of Gonzalez' residence. The white Jetta, the yellow Ryder van that Gomez had rented, and the maroon van were already parked on Gonzalez' property. The three occupants of the black Mustang were conducting what the government characterizes as "counter-surveillance" by driving continuously through the neighborhood.
Once the truck was backed onto Gonzalez' property, Government agents surrounded the area and observed the operation. One Riverside Police Department Officer, Ken Fouse, watched the appellants through gaps in the fence surrounding Gonzalez' backyard. According to Fouse, Orduno appeared to be directing the operation as Machuca, Gomez, Rivera, Medina, and Morales accessed a compartment in the cargo area of the truck and unloaded bales of marijuana from the truck into the Ryder van. Not all of the marijuana bales had been unloaded from the trailer when the Ryder van became full.
When the arrest signal was given, agents apprehended Orduno, Gonzalez, Machuca, Rivera, Morales, Medina, and Gomez in Gonzalez' backyard. Simultaneously, the black Mustang was stopped and its occupants, appellants Tirado, Trujillo, and Urias, were arrested. A subsequent search of the truck and Ryder van revealed approximately 4,484 pounds of marijuana. A half kilogram of cocaine was discovered in the residence.
Appellants Orduno, Gonzalez, Machuca, and Medina object on appeal to the district court's admission of evidence seized from the warrantless search of the loaded truck by Officer Pasana on the night of December 5, 1988. Appellants argue that the search was unlawful on two grounds: (1) the Government failed to present adequate facts in support of the extended search theory; and (2) Officer Pasana lacked the requisite authority to conduct an extended border search.
As a preliminary matter we address the issue of standing to object to the search of the truck.
In this context, standing is controlled by United...
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