U.S. v. Sanchez

• Decision Date: 16 September 1982
• Docket Number: No. 81-1444,81-1444
• Citation: 689 F.2d 508
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. San Juanita SANCHEZ, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 508

689 F.2d 508

UNITED STATES of America, Plaintiff-Appellant, v. San Juanita SANCHEZ, Defendant-Appellee.

No. 81-1444

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Sept. 16, 1982.

As Modified Oct. 8, 1982.

Sidney Powell, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellant.

Mario J. Martinez, El Paso, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, JOHNSON and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

The United States appeals from an order granting a pre-trial motion to suppress evidence in its prosecution of defendant San Juanita Sanchez for possessing and conspiring to possess marihuana with intent to distribute it. The district court determined that the warrantless highway stop and search of the truck being driven by defendant was without adequate cause, in violation of her Fourth Amendment rights. ¹

FACTS

The evidence is without conflict and the facts are not disputed. ² Accordingly, the issue resolves itself into the legal question of whether such facts constitute lawful justification for the stop and search. ³

On April 21, 1981, the United States Customs Service Patrol Office in Big Bend National Park, Texas received information from an informant that a yellow Ford pickup truck would try to carry a load of contraband into the United States in the area of Presidio, Texas. The informant specified that the contraband would be in a false compartment of "a homemade type" auxiliary gas tank in "the bed" of the truck and, further, that the truck would bear New Mexico license plates, the last four digits of which would be 8715. This information was disseminated by the Customs Service "headquarters" to all law enforcement officers in the area, including those at the bridge across the Rio Grande between Presidio and Ojinaga.

On May 5, 1981, Customs Patrol Officer Lum, who had been stationed in the area for about eighteen months, and two other officers observed a pickup truck matching this exact description, stopped on the south side of Highway 170, approximately sixty miles east of Presidio and five miles east of Lajitas. Highway 170 runs in a southeasterly direction from Presidio a few miles north of and roughly parallel to the Rio Grande, though in the vicinity of Lajitas its direction becomes more due easterly and it diverges further from the river. The truck was parked at "Lone Draw," an area known to Officer Lum as a pick-up place for contraband, and was occupied by a female driver. This vehicle, driven by a nervous-appearing woman, had come through the port of entry at Presidio "within a day or so" of the time that it was spotted on Highway 170.

The officers, who were wearing uniforms and driving marked vehicles, began a surveillance of the yellow pickup truck which lasted from approximately 4:45 p. m. to 6:30 p. m. The truck remained parked on the shoulder of the road for a short while and then proceeded east on Highway 170 toward the Study Butte area, which is some twenty miles north of the border. Lum could see the auxiliary tank in the bed of the pickup. After stopping at a small grocery store for a few minutes, the truck continued and came to the junction of Highway 170 and Highway 118, turned north on Highway 118, proceeded a few miles, then made a U-turn and proceeded back south to Highway 170, turned west on Highway 170, proceeded ten to fifteen miles, made a U-turn "very slowly and made a couple of stops looking at different areas," continued back east to the Highway 118 junction, and again turned north on Highway 118 and drove toward Alpine, Texas. At that time, Officer Lum returned to his residence and called Drug Enforcement Administration Agent Larry Nichols in Alpine, relayed all the foregoing information, and requested Nichols to assist in the surveillance of the vehicle if it arrived in Alpine. Agent Nichols had been stationed in the Alpine area about three and a half years. Lum, in talking to Nichols, described the informant as reliable, though he did not know the informant's identity.

Upon receiving this information at about 7:40 p. m. on May 5, Nichols, wearing plain clothes and in an unmarked car, drove to downtown Alpine and spotted the described yellow pickup truck at a gas station at the intersection of Highway 118 and Holland Avenue. It was a model of about the year 1972. From his viewpoint, he could tell that the license plates were from New Mexico and that there was a large gas tank in the bed of the truck. A woman was standing near the yellow truck. A red-and-white Dodge pickup truck, also bearing New Mexico license plates, was parked directly in front of the yellow truck and three or four males, including a gas station employee, were working on both trucks simultaneously. While Agent Nichols observed one of the males putting gas in the left rear panel of the yellow pickup, no one put gas in the auxiliary tank. Three of the males got into the red-and-white truck and the single female got into the yellow pickup. The yellow truck pulled out of the gas station first, closely followed by the red-and-white truck. Several blocks down the road, the red-and-white truck passed the yellow truck, but both continued in very close tandem with no vehicles in between.

As the trucks continued east on Highway 90, Agent Nichols approached them from behind and then slowly passed each vehicle. At this time he was able to verify the license plate numbers of the yellow truck as matching those given him by Officer Lum. As he passed the yellow truck, Agent Nichols focused on the auxiliary gas tank and determined that it appeared to be "overly sized" for its normal application, "much larger than most vehicles use as an auxiliary tank," and that although there was a gas connection fitting on the top of the tank, it did not appear to be connected to the engine compartment or to the cab of the truck. He could not observe any fuel line running from the tank. Even though he drove slowly beside the driver while passing the yellow truck and looked directly at her, she continued to stare down the road and completely avoided eye contact, which he considered to be unusual. Nichols then slowly passed the red-and-white pickup truck in which the three males were riding, recorded the license number, and noticed that the driver appeared nervous and was passing glances between the agent and his rearview mirror.

After passing the trucks, Nichols pulled over to the side of the road and allowed both vehicles to pass. The yellow truck continued to follow the red-and-white truck very closely. "About a mile or so" outside of Alpine, Nichols reapproached the trucks and determined they were traveling approximately thirty-five miles per hour on a four-lane segment of Highway 90 where vehicles normally travel at least as fast as the fifty-five mile-per-hour speed limit. When he came within thirty or forty yards of the yellow truck, it "darted" to the shoulder of the road as if the woman driving wanted him to pass. At that point, Nichols made up his mind that he "was going to stop the yellow pick-up" and likely search the auxiliary gas tank. He turned on his siren and followed the yellow truck, then traveling about forty-five miles per hour along the paved shoulder, until it stopped approximately three quarters of a mile up the highway. The red-and-white truck "accelerated at a high rate of speed" and escaped, traveling "much faster" than previously.

When the yellow truck came to a stop, Nichols identified himself to the driver and asked to see her driver's license, which she cooperatively produced. The license identified her as the defendant, San Juanita Sanchez. He asked where she was coming from and she replied Ojinaga, Mexico. As he was talking with Ms. Sanchez, Nichols could clearly see the auxiliary gas tank in the bed of the yellow pickup. Again he saw no connection between the gas tank and the bed or body of the truck. Nichols made some preliminary investigations of the tank, including tapping on its side, which indicated the presence of a separate compartment, and observing that it was only very loosely attached to the bed of the truck. He then pulled the tank slightly to the rear and lifted it, at which point three bags of marihuana, one in clear plastic, rolled out of its false compartment. Nichols thereupon placed Ms. Sanchez under arrest.

Nichols was unaware of the informant's identity. He had learned, apparently after the arrest, that the informant had not previously relayed information, but "because of who the person was that supplied the information he was considered reliable, he or she."

Officer Lum and Agent Nichols were the only witnesses testifying at the suppression hearing. Photographs of the truck and tank were introduced. The tank has a "homemade" type appearance, is approximately the width of the truck, slightly higher than the sides of the bed and seems to be about two- to three-feet front to back.

DISCUSSION

The district court granted defendant's motion to suppress the seized evidence because "the stop and subsequent search of Movant was totally without probable cause." ⁴ The court found that the information received from the informant had become "stale" in the two-week interval between the April 21 "tip" and the May 5 surveillance of the defendant. In addition, it found that certain of the factors personally observed by Agent Nichols-the two trucks driving thirty-five miles per hour in a fifty-five miles-per-hour zone, the presence of an auxiliary fuel tank, and the defendant's refusal to look at the agent as he drove past her-were insufficient to reestablish the probable cause required to search the truck.

On appeal, the government argues that, under the circumstances of this case, Nichols was justified in stopping Ms. Sanchez and had the requisite probable cause to search the auxiliary gas tank. We agree and reverse the grant of defendant's motion to...