U.S. v. Perkins, P-00-CR-270.

• Decision Date: 18 December 2001
• Docket Number: No. P-00-CR-270.,P-00-CR-270.
• Citation: 177 F.Supp.2d 570
• Parties: UNITED STATES of America, v. Paul Preston PERKINS, Defendant.
• Court: U.S. District Court — Western District of Texas

177 F.Supp.2d 570

UNITED STATES of America, v. Paul Preston PERKINS, Defendant.

No. P-00-CR-270.

United States District Court, W.D. Texas, Pecos Division.

December 18, 2001.

Kelly Wayne Loving, Assistant U.S. Attorney, San Antonio, TX, for the Government.

Merry A. Worley, Odessa, TX, for Defendant.

ORDER GRANTING GOVERNMENT'S MOTION FOR RECONSIDERATION AND DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

FURGESON, District Judge.

On September 25, 2001, the Court issued an Order Denying Defendant Paul Preston Perkins's Motion to Suppress Evidence. In its Order, the Court held that the Attorney General lacks the authority to cross-designate U.S. Border Patrol agents with federal narcotics law enforcement powers and that the Border Patrol can only make narcotics arrests when performing duties relating to the enforcement of immigration laws. Accordingly, when the Border Patrol agents in the instant case stopped Defendant's vehicle based solely upon a suspicion of drug smuggling, the Court found that they acted beyond the scope of their authority. Nevertheless, the evidence was not suppressed because the agents acted in good faith.

Before the Court is the Government's Motion for Reconsideration, filed October 19, 2001, in the above-styled matter. The Government argues that, despite the favorable outcome, the Court should eliminate from its Order any suggestion that the Attorney General is without cross-designation authority.

Supreme Court Justice Felix Frankfurter once wrote, "Wisdom too often never comes, and so one ought not to reject it merely because it comes too late."¹ Such is the case here. Thus, after careful consideration, it is the opinion of the Court that the Government's Motion should be GRANTED and Defendant's Motion to Suppress Evidence should be DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

Early in the morning of June 15, 2000, U.S. Customs Agent William Upchurch received word from a reliable confidential informant that a recreational vehicle (RV) was "being loaded" in Redford, Texas. Based on his experience, Agent Upchurch understood those words to mean that the RV was being packed with drugs. He relayed this information to the U.S. Border Patrol.

The informant's tip soon reached Border Patrol Agents Gregory McConnell and Robert Mooreland, who were observing traffic in a marked Border Patrol vehicle east of Redford. The Agents later spotted the RV, which was towing a small car, and observed the safety strap of the towing dolly loosen and fall onto the roadway. The Agents followed the vehicle and when the roads widened, stopped Defendant's RV. After satisfying themselves of Defendant's U.S. citizenship, the Agents continued questioning him and obtained his consent to search the RV. Agent McConnell found sugar sacks containing bundles that, from his past experience and the obvious odor, he believed contained marijuana. Defendant and his wife, a passenger, were then arrested. Tests later confirmed that the bundles in fact contained marijuana.

Defendant was charged in a two-count indictment with importation of and possession with intent to distribute marijuana. Defendant moved to suppress the drugs and oral statements due to the Border Patrol's lack of reasonable suspicion and probable cause to stop and search the RV. United States Magistrate Judge L. Stuart Platt held a hearing on Defendant's Motion to Suppress Evidence on December 12, 2000. On February 16, 2001, he filed his Proposed Findings of Fact and Recommendation on Defendant's Motion to Suppress Evidence, recommending that the Motion be denied.

Defendant objected to the Magistrate Judge's report, and in conducting a de novo review, the Court became concerned about "the scope of the U.S. Border Patrol's authority to enforce federal narcotics laws under Title 21 when not performing duties relating to the enforcement of immigration laws under Title 8."² Because this issue was not adequately addressed by either party during the hearing on the Motion to Suppress Evidence, the Court issued a Show Cause Order on May 31, 2001 and requested that the Department of Justice and/or the Appellate Division of the United States Attorneys Office brief, among other issues: (1) the source of the Attorney General's authority to cross-designate Border Patrol agents with Title 21 arrest powers, and (2) whether this authority is circumscribed by 8 U.S.C. § 1357(a)(5).³

On July 20, 2001, the Government filed its Response to Show Cause Order. The Government argued that the Attorney General can cross-designate pursuant to 21 U.S.C. § 873(b) and that the Border Patrol's Title 21 arrest powers are not limited to situations in which they are performing duties relating to the enforcement of immigration laws.

On September 25, 2001, the Court denied Defendant's Motion to Suppress Evidence. At the same time, though, the Court held that the Attorney General lacked the authority to cross-designate Border Patrol agents as Drug Enforcement Administration (DEA) employees and could not otherwise confer warrantless drug arrest powers upon Border Patrol agents.⁴ Accordingly, Agents McConnell and Mooreland were not authorized to stop Defendant's RV based on the tip that the RV might be carrying drugs.⁵ However, suppression was not the proper remedy because the Agents had an objectively reasonable good faith belief that they were authorized to make an investigatory stop based solely upon a suspicion of a narcotics offense.⁶

On October 19, 2001, the Government filed its Motion for Reconsideration, arguing that the Court should eliminate from its Order the conclusion that the Attorney General is not authorized to cross-designate non-DEA employees with federal narcotics law enforcement powers. The Government's Motion contains a more detailed response to the Court's request, pointing to three additional-and more pertinent-sources of the Attorney General's cross-designation authority. For the reasons discussed below, the Court concurs in the Government's assessment of the Attorney General's authority to delegate Title 21 law enforcement powers to the Border Patrol and belief that these powers are not circumscribed by 8 U.S.C. § 1357(a)(5).

DISCUSSION

No court has analyzed the legitimacy of cross-designating Border Patrol agents as DEA officers with Title 21 enforcement authority. The few courts that have addressed this issue have merely acknowledged that certain Border Patrol agents have been cross-designated without determining the validity of their deputation.⁷ The Court today holds that Congress has empowered the Attorney General to cross-designate the Border Patrol as DEA officers with Title 21 enforcement authority; that certain Border Patrol agents have been accorded limited Title 21 enforcement powers; and that these powers may be exercised even when not performing duties relating to the enforcement of immigration laws.

A. Cross-Designation of the Border Patrol with Title 21 Enforcement Powers.

1. Congress's Authorization of Cross-Designation by the Attorney General.

In three separate sources of law, Congress has conferred upon the Attorney General the ability to enlist the Border Patrol in the enforcement of federal narcotics laws. First, the general delegation statute, 28 U.S.C. § 510, empowers the Attorney General to "from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General." One function of the Attorney General is the enforcement of federal drug laws; Reorganization Plan No. 2 of 1973, which has the force of law,⁸ transferred from the Department of the Treasury to the Attorney General "all intelligence, investigative, and law enforcement functions ... which relate to the suppression of illicit traffic in narcotics, dangerous drugs, or marihuana ...."⁹ Border Patrol agents are employees of the Department of Justice, thus the Attorney General can bestow upon them his Title 21 enforcement functions.

The second source of law authorizing cross-designation of the Border Patrol, and one more specific to the narcotics context, is found in Title 21 itself. In 21 U.S.C. § 871(a), Congress permits the delegation of "any of [the Attorney General's] functions under this subchapter to any officer or employee of the Department of Justice."¹⁰ The Supreme Court has "interpreted [§ 871(a)] to permit the delegation of any function vested in the Attorney General under the [Controlled Substances] Act unless a specific limitation on that delegation authority appears elsewhere in the statute."¹¹ The Act contains no such limitation with regard to the Attorney General's power to delegate enforcement authority to Immigration and Naturalization Service (INS) officers and employees.

One of the DEA's functions under the Controlled Substances Act is the making of certain warrantless arrests.¹² Because "[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General ..."¹³ and the DEA is an agency of the Department of Justice,¹⁴ one function of the Attorney General is arresting people without a warrant in certain situations. Thus, pursuant to § 871(a), the Attorney General can delegate this function to other employees of the Department of Justice, including the Border Patrol.

Third, Reorganization Plan No. 2 of 1973 also specifically entitles the Attorney General to "authoriz[e] the performance of any of the functions transferred to him by the provisions of this Reorganization Plan by any officer, employee, or agency of the Department of Justice."¹⁵ As mentioned above, Reorganization Plan No. 2 of 1973 vested in the Attorney General drug-related investigative and enforcement functions.¹⁶ Therefore, Congress approved of the delegation of these functions to the Border Patrol.

A possible fourth source of the power to cross-designate,...