U.S. v. Padilla
| Decision Date | 01 April 1992 |
| Docket Number | Nos. 90-10311,90-10316,s. 90-10311 |
| Citation | 960 F.2d 854 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Xavier V. PADILLA, Maria Jesus Padilla, aka Suzy, Jorge Padilla, Donald Lake Simpson, Warren Strubbe, Maria Sylvia Simpson, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Xavier V. PADILLA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David A. Kern, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellant.
Walter B. Nash, Tucson, Ariz., Steven M. Dichter, Harrison, Harper, Christian & Dichter, Phoenix, Ariz., Michael Bloom, Michael Piccaretta, Davis & Piccaretta, William Walker, Stompoly & Stroud, Michael Brady, Tucson, Ariz., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona.
Before: CHOY, ALARCON and T.G. NELSON, Circuit Judges.
The United States appeals an order of the district court holding that the defendants had standing to bring a motion to suppress, that there was no reasonable suspicion for the stop of a vehicle, and that the doctrines of attenuation and independent source are not applicable to this case. We affirm as to three of the defendants, remand for further proceedings for two others and reverse as to the last.
On September 26, 1989, an Arizona trooper, Officer Russell Fifer, observed a 1976 Cadillac traveling westbound on the interstate. The officer noted that the vehicle appeared to be traveling slightly in excess of the speed limit (65 m.p.h.), although he admitted that the vehicle's speed was not excessive and that he would not have pulled over the vehicle for that speed.
At the suppression hearing, Fifer testified that the driver acted suspiciously. Upon noticing the officer, the driver jerked his head and stiffened. He passed the patrol vehicle and continued to view him through the side view mirror.
Fifer followed the vehicle for approximately eleven miles and testified that during this time the vehicle slowed down, traveling speeds that varied from 50 to 60 miles per hour. The officer radioed in the license plate number of the vehicle and was initially informed that the license plates belonged to a Pontiac, not a Cadillac. There was confusion regarding the plates but ultimately it was determined at the scene that the plates were, in fact, correct. Fifer testified, however, that the basis for his decision to stop the vehicle was not the possibility of the fictitious plate. Rather, he stopped the vehicle for driving at a speed he decided was too slow.
The officer testified that he believed he could stop a vehicle for driving at a slow speed if he believed the speed was not "reasonable and prudent." Fifer testified that he routinely issued both citations and warnings to travelers driving significantly slower than the posted limit. The defense introduced evidence that there is no posted minimum speed limit on the stretch of interstate where the vehicle was stopped.
Having pulled over the Cadillac, the officer questioned the driver, Luis Arciniega. Arciniega produced a valid driver's license and proof of insurance demonstrating that a customs official, defendant Donald Simpson, owned the Cadillac.
Another Department of Public Safety (DPS) officer, Robert Williamson, appeared on the scene. Both officers believed that Arciniega matched a drug courier profile. Accordingly, they requested and received Arciniega's consent to inspect the vehicle whereupon they discovered 560 pounds of cocaine concealed in the trunk.
The timing between the actual arrest and the resolution of the license plate mix-up is close. Fifer testified that the problem with the plates had been cleared up by 11:46 a.m. and that the arrest occurred at 11:50 a.m. Williamson's testimony confirms that the search of the trunk was not conducted until after the officers had learned of the license plate error.
Following the search, a third officer, Vanderpoole, was dispatched to the scene. Vanderpoole informed Arciniega that "[h]e was looking at at least twenty five years in prison; and since he was 50, he might not make it out of prison." Vanderpoole assured Arciniega that if he assisted the police, however, they would not file charges against him with the county attorney. Not surprisingly, Arciniega promptly agreed to cooperate. After a brief interrogation, it became apparent that Arciniega was merely a courier or "mule," carrying the load for other yet unidentified conspirators and the officers set out to apprehend Arciniega's "employers." DPS took Arciniega, the vehicle, and a portion of the cocaine to the Regal 8 Motel in Tempe where he was instructed to telephone his contact. He called what turned out to be the home of Alicia Padilla Romero, the sister of defendants Jorge and Xavier Padilla.
He spoke with apparent familiarity to an individual identified only as "Pollo" who promised to dispatch a runner to retrieve the load at the motel. Jorge Padilla and Maria Jesus "Suzy" Padilla, arrived at the motel in a white sedan. Jorge attempted to start the Cadillac while Maria began pulling the sedan out of the parking lot. DPS surrounded both vehicles and both defendants were immediately arrested. The officers found a rental contract in the white sedan bearing the name of Xavier Padilla, the brother of Jorge and husband of Maria.
Following a lead from Maria, the investigators proceeded to Alicia Padilla Romero's house. While they were questioning Alicia, Xavier Padilla entered the residence. He indicated under questioning that he had been staying with Alicia only temporarily and did not directly implicate himself. The officers did not arrest Xavier at that time and in fact did not do so until January of the following year.
The following day, however, DPS informed the U.S. Customs Service that Customs Inspector Simpson's automobile was involved in a drug seizure. Customs agents and DPS investigators interrogated Luis Arciniega who further implicated Simpson. As a direct result of Arciniega's statements, a search warrant was issued on Simpson's home which resulted in the recovery of incriminating evidence implicating both Simpson and his wife, defendant Maria Sylvia Simpson.
On October 6, 1989, agents from the Customs Department, DEA and the Arizona Department of Public Safety all met with government counsel and agreed to cooperate and exchange information. This meeting is documented in an internal memorandum from the Customs Service and confirms that DPS information had been incorporated into all federal investigations which were commenced after the drug seizure.
Meanwhile, on October 12, 1989, in an apparently unrelated incident, Guillermo Owen was arrested in Sierra Vista, Arizona, for possessing a small amount of cocaine and paraphernalia. In an attempt to cut a deal, Owen offered what he knew about Arciniega's arrest a few weeks earlier. Owen discussed at length his involvement with Luis Arciniega, Arciniega's son Frank, defendant Warren Strubbe and various other players. From the DEA report evidencing the interrogation, it appears that he did not, however, provide information regarding Mrs. Simpson, Jorge or Maria Padilla. Furthermore, the report only makes two brief references to Xavier and one to an unidentified customs official, presumably, Donald Simpson. 1
Owen stated that he helped Strubbe and the Arciniegas unload about half of a large but unspecified amount of cocaine from a white and red Cadillac into Strubbe's Tucson apartment. A short time later, Arciniega departed with the remaining cocaine still in the Cadillac. Owen stated that he, Frank Arciniega and Strubbe delivered the cocaine from Strubbe's apartment to a storage facility rented by a Troy Barlous. After interrogating Owen and obtaining additional information, the DEA agents were issued a search warrant for the storage unit and uncovered 440 pounds of cocaine.
After a thorough reading of the record which includes reports from Customs, DEA, and the Arizona Department of Public Safety, an overall picture emerges. Xavier Padilla and the Simpsons were not drug merchants but were in the business of transporting contraband across the border for those that were. The seized cocaine was apparently owned by a cartel known as the "El Tejano" organization. Both Xavier Padilla and Sylvia Simpson had previously met with these people in Mexico and had successfully delivered three other loads. Jorge and Maria Padilla were possibly mere "employees" of the conspiracy and were under the direct supervision of Xavier.
Warren Strubbe was not a member of the transportation conspiracy responsible for the load seized from the illegal stop. According to Owen, Strubbe came in contact with the seized cocaine but did so only briefly. Instead, he participated in a separate conspiracy involving a separate load. While apparently the cocaine was initially combined, it had been divided and Strubbe's share parted ways with the confiscated load before the stop of Arciniega. Strubbe's connection with the seized load ended at the point of division.
The district court determined that there was no founded suspicion for the stop of the vehicle. The government does not appeal this issue nor will we address it. The government does appeal, however, the district court's conclusion that all of the defendants had standing to contest the illegal stop and seizure of the cocaine found in the Cadillac even though none was present at the stop and only the Simpsons owned the vehicle. The court ruled that because they all exhibited sufficient control and supervision over the contraband, they could claim a legitimate expectation of privacy in the vehicle searched and the contraband seized. 2 The district court said:
I think it is clearly a joint venture and even though it is a joint venture for transportation, as distinguished from ownership, it was a joint venture that had...
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