U.S. v. Pompa

• Decision Date: 30 December 2005
• Docket Number: No. 04-40660.,04-40660.
• Citation: 434 F.3d 800
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel POMPA, José Feliciano Pompa, Baltazar Bazan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 800

434 F.3d 800

UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel POMPA, José Feliciano Pompa, Baltazar Bazan, Defendants-Appellants.

No. 04-40660.

United States Court of Appeals, Fifth Circuit.

December 30, 2005.

Vijay Shanker, U.S. Dept. of Justice, Crim. Div., Washington, DC, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Jose Luis Ramos, Sr., Rio Grande City, TX, for Miguel and José Pompa.

Mike J. DeGeurin, Foreman, DeGeurin, Nugent & Gerger, Houston, TX, for Bazan.

Appeals from the United States District Court for the Southern District of Texas.

Before REAVLEY, HIGGINBOTHAM and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This appeal arises from the conviction of the three appellants, Miguel Angel Pompa, José Feliciano Pompa (collectively, "the Pompas"), and Baltazar Bazan ("Bazan") on charges of conspiring to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B), and possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. Appellants challenge the denial of their motions to suppress physical evidence, certain evidentiary rulings, and the sufficiency of the evidence supporting their convictions.

I

Officers from the Texas Department of Public Safety ("DPS") began observing a white tractor-trailer parked at a truck stop restaurant, the Silver Spur, near Pharr, Texas. The tractor-trailer had remained at the restaurant long enough to attract the attention of an informant, who told the DPS of its lengthy stay. The informant explained at trial that tractor-trailer drivers typically are paid only for how much and how far they haul and that therefore the extended stay of an obviously empty truck attracted his suspicion. The white tractor-trailer, driven by Jorge Hughes, eventually left the restaurant and drove west to a small ranch near Mission, Texas. A blue Chevrolet pickup also arrived at the ranch, and DPS officers saw Hughes speaking with the unknown occupants of the blue pickup. Several weeks later, the DPS officers were informed that the white tractor-trailer was again at the Silver Spur and this time had been joined by a red tractor-trailer from the same Florida trucking company. A few days later, DPS officers saw the occupants of the red tractor-trailer meet with the occupants of a maroon and grey Dodge pickup truck.

The following week, DPS troopers followed the red tractor-trailer as it traveled north along the border. En route, they stopped the tractor-trailer for inspection.¹ The troopers determined that the driver of the red tractor-trailer was Juan Sanchez² and the passenger was Hughes. Sanchez and Hughes stated that they were traveling to Laredo to pick up produce. The tractor-trailer was empty at that time, and the officers permitted them to continue on to Laredo.

The next day, at a Laredo cold storage unit, Hughes and Sanchez loaded broccoli into the tractor-trailer. The tractor-trailer left Laredo and traveled south towards McAllen, Texas. As the officers followed the truck, they determined that the back doors of the tractor-trailer were locked and sealed. As they testified at trial, seals are put on the rear doors of the trailer at loading and cannot be removed without being broken or cut. Their purpose is to prevent tampering with the load prior to its arrival at the destination specified on the Bill of Lading. DPS officers followed the tractor-trailer to a small convenience store near La Blanca, Texas (a town near the border) and watched as Hughes and Sanchez met with the occupants of the same maroon and grey pickup that had been observed earlier at the Silver Spur. The two vehicles left simultaneously, and the tractor-trailer followed the maroon and grey pickup to a ranch property a few miles to the northwest. Soon after the trucks' arrival, all the lights on the ranch and the vehicles were turned off. The officers heard the trailer door open, heard voices, and saw lights from flashlights inside the trailer, held by persons who appeared to be on top of the load.

The tractor-trailer departed the ranch after about an hour. DPS officers followed, observing that now the seal on the back of the truck was broken. After being stopped for a traffic violation, the driver, Sanchez, gave written consent for a search of the tractor-trailer. He specifically denied coming from the ranch and instead asserted that he had gotten lost coming from Laredo. These statements were reported immediately to the other DPS officers. The officers ultimately found approximately 214 kilograms of marijuana secreted in the middle of the tractor-trailer and placed the driver under arrest.

After the tractor-trailer had left the ranch, the blue pickup that had been observed earlier at the Silver Spur also departed, driving at speeds of up to 90 mph. The driver, Bazan, was stopped and gave conflicting answers to officers' questions. After the marijuana was discovered in the tractor-trailer, he also was placed under arrest by DPS officers.

Soon after Bazan left the ranch, so did the maroon and grey pickup. DPS agents stopped the pickup and questioned the occupants, who included the Pompas. José Pompa said that he had been at the ranch for a barbeque with a friend, but could not name the friend, and denied that he had seen any tractor-trailer. The Pompas and the driver were handcuffed and taken back to the ranch. Later, at the county jail, the booking officers found "broccoli beads" and green stains consistent with broccoli on Bazan's and the Pompas' clothing.

II

A

The appellants contend that the district court erred in denying their motion to suppress the broccoli beads and stains that were gathered from their clothing, arguing that the evidence was gathered incident to an unlawful arrest. Based on its findings of fact, the district court held that probable cause to arrest existed when the trucks departed the ranch and denied the motion to suppress. When reviewing a district court's denial of a motion to suppress evidence as obtained in violation of the Fourth Amendment, we review the factual determinations for clear error and the legal conclusions de novo. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir.2003). A determination of probable cause involves the assessment of the "events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to ... probable cause." Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Thus, while we review the legal conclusions de novo, the "inferences drawn from those facts by resident judges and local law enforcement officers" will be given due weight. See id. at 699, 116 S.Ct. 1657.

On appeal, each appellant argues that officers lacked reasonable suspicion to stop their pickups and perform an investigatory detention. Specifically, they argue that no illegal activity was observed by DPS officers prior to their stopping of the vehicles. Bazan concedes that because of his traffic violation, the initial stop was constitutional, while the Pompas argue that even their initial stop was not based on reasonable suspicion. All three further argue that their detention, even if justifiable as an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), continued on so long as to develop into a full-blown arrest. Appellants assert that because they were stopped and held while other DPS officers searched the tractor-trailer in another location, their detention went on too long and therefore developed into an arrest prior to the discovery of the marijuana. See United States v. Dortch, 199 F.3d 193, 200 (5th Cir.1999) (restating the well-established rule that investigatory detentions cannot last longer than necessary to fulfill the purpose of the initial stop). They conclude that their arrests were unsupported by probable cause and therefore that all evidence gathered after the arrest should be suppressed. See United States v. Wadley, 59 F.3d 510, 512 (5th Cir.1995) (stating that evidence gathered subsequent to an invalid arrest is subject to suppression under the Fourth Amendment).

All appellants argue that no illegal activity had been observed by the DPS officers at the time they stopped the appellants. However, such lack of directly observable illegality does not preclude a finding of probable cause. Hart v. O'Brien, 127 F.3d 424, 444 (5th Cir.1997) (citing United States v. Pentado, 463 F.2d 355, 361 (5th Cir.1972)). In United States v. Garcia, 179 F.3d 265 (5th Cir.1999), we held that the Border Police had probable cause to arrest the defendants for drug smuggling without direct observation of the illegal activities. Id. at 268. In that case, the Border Police knew the defendants were traveling at night along a known drug trail, their footprints indicated they were carrying a heavy weight, they appeared evasive and nervous, and they gave conflicting answers to police questions. Id. at 269. While each of these facts, standing alone, might not be incriminating, taken together, they allowed a reasonable Border Police officer to assume that there was a fair probability of drug smuggling. Id. at 269-70.

Similarly, at the time DPS officers stopped each of the appellants, the officers were aware of a series of events which, when taken together, constituted probable cause to arrest. See United States v. Muniz-Melchor, 894 F.2d 1430, 1438 (5th Cir.1990) ("A succession of otherwise `innocent' circumstances or events ... may constitute probable cause when viewed as a whole."). The officers had noted the unusually lengthy stay of each tractor-trailer at the Silver Spur, as well as interactions between the various occupants of the vehicles. After the produce was loaded in Laredo, the tractor-trailer traveled along the border and was ultimately...