U.S. v. Perkins
| Decision Date | 25 September 2001 |
| Docket Number | No. P-00-CR-270.,P-00-CR-270. |
| Citation | 166 F.Supp.2d 1116 |
| Parties | UNITED STATES of America v. Paul Preston PERKINS. |
| Court | U.S. District Court — Western District of Texas |
Kelly Wayne Loving, Assistant U.S. Attorney, San Antonio, TX, for the Government.
Merry A. Worley, Odessa, TX, for defendant.
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
Before the Court is Defendant's Motion to Suppress filed August 16, 2000, in the above-styled matter. After a hearing, the Magistrate Judge's filed his Proposed Findings of Fact and Recommendation on February 16, 2001. The Defendant filed specific objections to the findings on April 18, 2001. By Show Cause Order entered June 5, 2001, the Court requested additional briefing by the parties concerning the validity of the cross-designation of Border Patrol agents with arrest authority under Title 21. After careful consideration and de novo review, the Court is of the opinion that Defendant's Motion should be DENIED.
A district court reviews de novo a magistrate judge's report and recommendations when either party makes specific objections within ten days of receipt of the report. 28 U.S.C. § 636(b)(1). If no objections are filed, the court reviews for findings and conclusions that are either clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219 (5th Cir.1989). The Defendant timely filed specific objections and, therefore, this Court conducts a de novo review of the Magistrate Judge's report and recommendations.
At approximately 6:30 a.m. on June 15, 2000, U.S. Customs Agent William Upchurch, a supervisor for U.S. Customs in Presidio, Texas, received a phone call from a confidential informant ("CI"). The CI advised him that a recreational vehicle ("RV") was "being loaded" in Redford, Texas, and would depart Redford by 7:30 a.m. Based on both his law enforcement experience and his experience with this particular CI, Agent Upchurch understood the phrase "being loaded" to mean being loaded with drugs. Agent Upchurch considered the CI to be reliable because he had personally worked with him on several different occasions. According to Agent Upchurch, the CI had provided information in the past that ultimately led to prosecutions in six different cases. Agent Upchurch also testified that U.S. Customs had an on-going relationship with this particular CI and that he still provides information to them.
Except for identifying the loaded vehicle as an RV, the CI failed to describe the RV, its occupants, the precise location of where it was being loaded in Redford, or its destination. Nor did Agent Upchurch inquire into these details. Agent Upchurch then contacted Agent Vince LeValle, a Supervisor Agent with the United States Border Patrol and advised Agent LeValle of the "tip." Next, Agent LeValle contacted Agent Randy Davis and relayed the information. Agent Davis then contacted Border Patrol agents located both east and west of Redford and of the information provided by the CI and advised them to "be on the look out" for an RV traveling in the area. This type of advisory is commonly referred to as a "BOLO."
Redford, Texas, is located along Farm to Market road 170 ("FM 170"). FM 170 is the only main road in and out of Redford. The road basically follows the Rio Grande River and, thus, parallels the United States/Mexico border. A drive along FM 170 is scenic, making it a popular route for travelers. For most of its length, FM 170 is in very close proximity to the border, often within eyesight from the road. Agents familiar with the area characterize FM 170 as a route often used by smugglers of aliens and/or narcotics to avoid the fixed immigration checkpoint located on Highway 67, just south of Marfa, Texas.
FM 170 is intersected by FM 169, between Redford and Presidio, Texas. This road is commonly known as "Casa Piedras" road. From FM 170, FM 169 runs north and intersects Highway 67, just south of the Marfa Checkpoint. Any vehicle traveling northbound on FM 169 would have to go through the Marfa checkpoint. According to the testimony, though it is possible for an RV to travel on FM 169, it is highly unlikely because of the narrowness of the road and the number of blind turns. Agents also testified that the majority of traffic on FM 169 is from local ranchers. The layout of the roads leads to the inference that an RV traveling east from Redford most likely came through Presidio, near the border, rather than from Marfa, via FM 169.
On the morning of June 15, 2000, Border Patrol Agents Gregory T. McConnell and Edwin Mooreland were on duty east of Redford on FM 170. At approximately 6:30 a.m., the agents received a call advising them that an RV loaded with marijuana would be departing Redford around 7:00 a.m. Acting on this BOLO, Agents McConnell and Mooreland took up a position just outside of Lajitas in order to observe the traffic on FM 170. After not observing any motorists for about an hour, the agents decided to travel west towards Presidio. At approximately 7:40 a.m. and about five miles west of Lajitas, the agents observed an approaching east bound RV. The RV was towing a small car. It was only the third vehicle that the agents had observed traveling on FM 170 since 1:30 a.m. that morning and the only RV. The agents believed that this RV had started traveling from Redford rather than further west from Presidio for two reasons. First, the agents knew that the Border Patrol had stationed other agents on the west side of Redford pursuant to a "box in"1 strategy. Second, it was unlikely that the RV had not come from FM 169. The agents, therefore, believed that this RV was most likely the RV identified by the BOLO.
As the RV passed, Agents McConnell and Mooreland observed that one of the RV's safety straps on the towing dolly was loose. During their observation of the vehicle, the strap actually disconnected from the car and fell onto the roadway. The agents observed that another strap also appeared to be loose. However, because of the narrowness of the roadway, the agent did not initiate the stop until Lajitas. Once the RV stopped, Perkins, who was driving, exited the vehicle. Agent McConnell instructed Perkins to get back into the RV. Agent McConnell approached the RV and identified himself as a Border Patrol agent. He then inquired as to Perkins's citizenship. Perkins identified himself as a U.S. citizen and produced identification. By his own testimony, at this point, Agent McConnell was completely satisfied as to Perkins's citizenship status. However, based on the BOLO, Agent McConnell still suspected that the RV was involved in narcotics smuggling. He then inquired as to Perkins's travel plans and informed him of the loose safety straps. Perkins stated that he was coming from Alpine, Texas near Marfa.
Agent McConnell asked Perkins if he could look in the RV. According to Agent McConnell, Perkins gave his consent. Agent McConnell then asked both Perkins and his wife to exit the RV so that they could assist Agent Mooreland in tightening and reattaching the safety straps. Not wanting to enter the RV through the front, where he would have to climb over the driver's seat, he asked if the RV's side door was open for him to enter. According to Agent McConnell, Perkins again gave his consent for him to enter and search the RV. Upon entering, Agent McConnell observed several sugar sacks containing bundles. Based on his experience as a Border Patrol agent, his narcotics training, and the obvious odor, he believed the bundles to contain marijuana. The agents then arrested Perkins and his wife. Field tests confirmed that the bundles contained marijuana.
Defendant Perkins raises several specific objections to the findings of fact of the Magistrate Judge. First, he questions the reliability of the tip provided by the CI. Specifically, Perkins notes that the CI failed to provide several key material details including (1) that the RV in question was towing a small car; (2) how the CI knew that this RV was being loaded with narcotics; and (3) the route that the RV would take from Redford. Next, Perkins challenges Agent Upchurch's assessment that the CI and his information were reliable. Here, Perkins clarifies that though Agent Upchurch testified that he had personally dealt with the informant on six occasions where "cases were made," there was no testimony that the CI's information had actually resulted in a final conviction. Perkins also challenges the Magistrate Judge's characterization of FM 170 and the travelers common to that area.
Perkins also objects to the Magistrate's conclusions of law. First, Perkins asserts that the initial stop of his RV was unconstitutional under the Fourth Amendment. Specifically, he contends that the information provided by the CI was too general and too vague. Therefore, the Border Patrol did not have a reasonable suspicion to justify the seizure of Perkins's RV. Next, he argues that even if the initial seizure was lawful, the continued detention of Perkins after the Border Patrol agents were satisfied of his immigration status was unreasonable, and, therefore, in violation of the Fourth Amendment. Finally, Perkins asserts that he did not give his consent to the search of the RV.
Perkins's first objection questions the constitutionality of the initial stop of his RV by Border Patrol agents. Agents McConnell and Mooreland acknowledged that they stopped his RV based solely on the BOLO, which advised only of narcotics smuggling. Perkins's objection lends itself to two questions: first, did the Border Patrol agents have the authority to make a roving patrol stop based solely on a suspicion of narcotics smuggling, and second, if the agents did not have authority to make the stop, is suppression the proper remedy?
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