U.S. v. De La Rosa-Valenzuela

• Decision Date: 24 November 1997
• Docket Number: No. P-97-CR-151.,P-97-CR-151.
• Citation: 993 F.Supp. 466
• Parties: UNITED STATES of America v. Martha Elena DE LA ROSA-VALENZUELA.
• Court: U.S. District Court — Western District of Texas

Page 466

993 F.Supp. 466

UNITED STATES of America v. Martha Elena DE LA ROSA-VALENZUELA.

No. P-97-CR-151.

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

November 24, 1997.

James Blakinship, Fre Brigman, III, U.S. Attys., Alpine, TX, for Plaintiff.

Jose Antonio Chavez, Odessa, TX, for Defendant.

ORDER

BUNTON, Senior District Judge.

BEFORE THE COURT, in the above-captioned cause of action, is the Defendant's Motion to Suppress, filed September 23, 1997. The Defendant asserts that the evidence seized should be suppressed because the seizure was the result of a warrantless search not supported by probable cause and seized in violation of the Fourth and Fourteenth Amendments to the United States Constitution.

On November 7, 1997, this Court conducted an evidentiary hearing on the Defendant's Motion. After considering the testimony offered at the hearing, this Court denied the Defendant's Motion. However, the Court has some reservations regarding what constitutes a search in some circumstances and raises these reservations in the hope that the Fifth Circuit will shed some light on them. The following Findings of Fact and Conclusions of Law support the Court's denial of the Motion.

I. FINDINGS OF FACT

1. United States Border Patrol Agent Joan Howe ("Howe"), who has been with the United States Border Patrol for a little over nine months, was working in the Marfa, Texas sector on August 23, 1997 during the day. She was working at the immigration checkpoint which is located approximately four miles south of Marfa on Highway 67. Marfa is approximately sixty miles from Presidio and the United States and Mexico border. Specifically, she was assigned to work at the primary inspection area.

2. At noon, the Defendant entered the checkpoint driving a four-door, 1986 Buick Century. There was nothing initially suspicious about the vehicle itself. For instance, it was not riding low, did not have an excessive amount of mud on the tires, and there was no unusual smell emanating from the vehicle as Agent Howe approached it. Agent Howe inquired as to the Defendant's citizenship and learned that she was a Mexican citizen with proper documentation and that she was traveling from Chihuahua, Mexico to Odessa, Texas in order to do some shopping. Overall, Agent Howe testified that she detected nothing suspicious about the Defendant, her appearance, or her identification. Therefore, Agent Howe's immigration check was complete.

3. However, as Agent Howe was asking the Defendant questions, Agent Richard Russell ("Russell") performed a superficial check of the vehicle looking for contraband or other people in the vehicle. Agent Russell testified at the hearing that he has been with the United States Border Patrol since January of 1997. He further testified that he often performs quick inspections of the vehicles which enter the checkpoint and that he is looking for drugs or illegal aliens. Generally, he "taps" on some of the vehicles' gas tanks and on the doors and also occasionally looks underneath the vehicles in order to see if there is anything suspicious about the vehicle. Although he did not obtain consent from the Defendant and did not have any probable cause, Agent Russell tapped on the gas tank of the Defendant's vehicle and heard a noise resembling a "thud" as opposed to a ringing sound. Agent Russell, through experience, has learned that a "thud" is not a normal sound for a gas tank. Most gas tanks, which are metal, like the Defendant's and not plastic, emit a "ringing" sound when tapped. Experience has also taught Agent Russell that gas tanks are common storage places for drugs.

4. Upon hearing the "thud," Agent Russell crawled underneath the vehicle to determine whether the tank was actually metal. He discovered that it was a metal gas tank. Based upon this "thud" sound, Agent Howe asked the Defendant for consent to have a canine check the vehicle. The Defendant consented. The canine, to which he referred, is certified to detect heroin, marijuana, cocaine, and their derivatives, as well as people. Agent Howe then asked the Defendant to drive her vehicle over to the secondary inspection area. The canine was then brought over to the vehicle, and he consequently alerted to the gas tank area indicating the possibility of the presence of drugs. Agent Howe then asked the Defendant for consent to have the vehicle placed on a lift for a further inspection of the gas tank. The Defendant consented. The Agents then saw what appeared to be tool marks on the bolts near the gas tank beneath the vehicle. The marks on the bolts and the straps looked as if the straps had been removed and replaced since they appeared out of place. Experience has told the Agents that such marks usually represent that there had been some questionable activity in that area. They also noticed a trap door near the gas tank. Upon opening the trap door, the Agents discovered marijuana. Subsequently, they arrested the Defendant.

II. CONCLUSIONS OF LAW

A. The Purpose of the Checkpoint

1. Systematic stops of all vehicles at an immigration checkpoint, like the one in this case, are primarily employed to curb the illegal transportation of aliens. Essentially, such checkpoint stops are considered reasonable and therefore constitutional because there is no discretion when all of the vehicles are stopped at the checkpoint. See United States v. Venegas-Sapien, 762 F.2d 417, 419 (5th Cir.1985) (finding that a stop at a highway checkpoint for the purpose of brief citizenship inquiry is constitutional). Usually, a stop at such a checkpoint takes about a minute to perform. If an officer determines that an occupant's status in the United States is legal, then the purpose of the stop has been met, unless, of course, the officer has a reasonable suspicion that the occupant is involved in illegal activity. Then, naturally, the officer is justified in investigating into matters beyond the scope of the standard immigration check.

United States Border Patrol agents are authorized by the Attorney General to assist her in carrying out her functions under the Controlled Substances Act, pursuant to Title 21 of the United States Code, Section 873(b) and 965. Essentially, the Border Patrol agents have a limited authority and cross-designation with the Drug Enforcement Agency to (1) make arrests in the enforcement of the Controlled Substances Act and the Controlled Substances Import and Export Act; (2) conduct warrantless searches for evidence incident to arrest in the enforcement of the Acts; and (3) make seizures of the controlled substances and/or property pursuant to the provisions of the Acts.¹

B. The Fourth Amendment and its Exceptions

2. The Fourth Amendment governs all searches and seizures conducted by government officials. It provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, ...

U.S. CONST., amend. IV. The Supreme Court has determined that a search without a warrant generally requires reasonable, but not certain, probable cause.² See Carroll v. United States, 267 U.S. 132, 155-56, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (finding that probable cause is the "reasonableness" standard for warrantless searches and seizures). An unlawful search or seizure does not preclude federal prosecution or any subsequent conviction, however, but instead the result of such a violation is the suppression of any illegally seized evidence.

3. It is surely undisputed that warrantless searches are per se unreasonable. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, it is also undisputed that warrantless searches of vehicles are permitted by the Fourth Amendment provided, for instance, the officers have probable cause to believe that the vehicle contains contraband or other evidence of a crime. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); United States v. McSween, 53 F.3d 684 (5th Cir.1995), cert. denied, 516 U.S. 874, 116 S.Ct. 199, 133 L.Ed.2d 133 (1995). This particular exception is referred to as the "automobile exception." See United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir.1993), cert. denied, 510 U.S. 1207, 114 S.Ct. 1331, 127 L.Ed.2d 678 (1994). Whether an officer has the requisite probable cause depends upon whether probable cause exists based upon the totality of circumstances which are weighed "in light of the observations, knowledge, and training of the law enforcement officers involved in the warrantless search." United States v. Muniz-Melchor, 894 F.2d 1430, 1438 (5th Cir.), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).³ Again, probable cause is determined on the totality of circumstances.⁴ Furthermore, the subjective intentions of the officers are irrelevant in a probable-cause Fourth Amendment analysis. Otherwise, delving into the subjective minds of the officers would send the federal courts on endless and fruitless expeditions into the psyche of the officers who made the search or stop. See Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) (finding that whether a violation has occurred is based upon an objective assessment of the officer's actions and not on a review of his subjective intent).

4. In order to establish a Fourth Amendment violation, an individual must demonstrate that he or she had a legitimate expectation of privacy in the area searched. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The Fourth Amendment protects only those expectations of privacy which society accepts as objectively reasonable. California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (finding that society would not express an expectation of privacy in its garbage which was left out on the street for collection). In determining...