U.S. v. Sanudo-Perez

• Decision Date: 21 November 1977
• Docket Number: D,No. 76-3141,SANUDO-PERE,76-3141
• Citation: 564 F.2d 1288
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Robertoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1288

564 F.2d 1288

UNITED STATES of America, Plaintiff-Appellee, v. Jose Roberto SANUDO-PEREZ, Defendant-Appellant.

No. 76-3141.

United States Court of Appeals, Ninth Circuit.

Nov. 21, 1977.

Rehearing Denied Jan. 25, 1978.

Glorene Franco (argued), San Diego, Cal., for defendant-appellant.

Barton C. Sheela, III (argued) on the brief, Terry J. Knoepp, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before CHAMBERS, KOELSCH and HUFSTEDLER, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Jose Roberto Sanudo-Perez ("Sanudo") appeals from his conviction for conspiracy to possess marihuana. The basic question on appeal is whether Sanudo's incriminating statements to a Drug Enforcement Agency ("DEA") agent were the fruit of an illegal arrest. We conclude that they were, and we accordingly reverse.

Two questions must be answered: (1) Was Sanudo illegally arrested? (2) Were the statements tainted by the illegal arrest? We answer both questions affirmatively.

The legality of the arrest turns upon the existence of probable cause to sustain the arrest made by Special DEA Agent Pulley. Based on information that Pulley received from some customs inspectors, Pulley undertook surveillance of a grey Monte Carlo in which Salazar, Mata, and Lizarraga were riding on the evening of November 20, 1975. Agent Pulley followed the Monte Carlo from a point near Calexico, but he lost sight of the vehicle in the area where Sanudo lived. At this time, Pulley did not get closer to Sanudo's home than some five or six blocks. About 8:00 p. m. of the same day, Pulley saw a red Chevrolet and followed it until it stopped at a bar. The driver was the sole occupant. He got out of the car and disappeared in a crowd. Pulley inspected the car and found that it was equipped with "air shocks," which led him to suspect that the vehicle was used for transporting contraband.

Pulley then returned to the area where he had lost sight of the Monte Carlo. He saw the Monte Carlo again with a trailer attached going north on Highway 88. Agent Pulley directed other agents to stop the Monte Carlo. A strong odor of marihuana was detected, and a large load of marihuana was thereafter discovered. Salazar and Mata were in the vehicle and were arrested. Agent Pulley then undertook to find Lizarraga.

Pulley and four agents went to Sanudo's home, hoping to locate Lizarraga. They first went to the wrong house. By the time the agents found Sanudo's home, it was about 10:30 in the evening. Sanudo answered the agents' knock at the door, and the agents told him they were looking for Lizarraga. Agent Pulley testified that Sanudo invited the agents in, the agents looked around and, not finding Lizarraga, they returned to the front porch. Pulley, the only agent who testified, said that he asked Sanudo about Lizarraga and about whether any cars had come into the yard. He said that Sanudo told him that he, Sanudo, had been home all evening, that he had not seen anyone there, nor had any cars come to his house. Pulley then asked Sanudo to come to headquarters, Sanudo agreed, and he was taken to headquarters. At headquarters, Pulley talked to some other agents about activities around Sanudo's residence and then placed Sanudo formally under arrest. After being given Miranda warnings, Sanudo told Pulley that Salazar, Mata, and Lizarraga had driven to his home about 5:00 p. m., and that that trio had transferred marihuana to the trailer. Mata and Salazar then drove away. Agent Pulley also testified that Sanudo told him that he had made arrangements with Lizarraga for the transfer of the marihuana at Sanudo's house earlier that day at a swap meet where Sanudo had a stall. ¹

Customs Agent Swanson saw some of the events on the evening of November 20, 1975, from his outpost approximately 300 yards from Sanudo's house. About 7:30 p. m., using binoculars, he saw people moving something between the Chevrolet and the Monte Carlo, but he could not identify the people. He also saw an unidentified person enter Sanudo's house. Sanudo testified that he reached home around 8:30 p. m. that day. Swanson was one of the agents who entered Sanudo's neighbor's home by mistake.

The district court initially granted Sanudo's motion to suppress incriminating statements that he made to Agent Pulley, stating, "There was founded suspicion to inquire of him but to arrest him . . . I've got to say he was under arrest . . . " at his home. The following day, however, the court decided that founded suspicion had escalated into probable cause for the arrest of Sanudo at his home because Sanudo had lied about what happened in his conversation with Agent Pulley before Sanudo was taken to headquarters.

The Government contends that Sanudo was not arrested at his home, but, on the contrary, voluntarily accompanied Agent Pulley and the other agents to headquarters. The Government, of course, has the burden of proving that Sanudo consented to accompany the agents to the DEA office. Alternatively, the Government argues that even if Sanudo had been arrested at his home, the arrest was based on probable cause and therefore the statements which he gave were not tainted because the arrest was legal. The Government also argues that Sanudo's statement at headquarters was knowingly and voluntarily made after Sanudo was warned of his Miranda rights and his statements, therefore, were admissible. We disagree.

We think the record is clear that Sanudo was arrested at his home. To be sure, no talismanic words of arrest were used, but Agent Pulley himself testified that he arrested Sanudo at his home before he took him to headquarters. It is also evident from the record as a whole that Sanudo had no choice, either about leaving the custody of the officers at his home or about accompanying the agents to headquarters. We do not find any basis for a determination of consent on these facts.

Viewing the facts retrospectively with respect to what everyone ultimately learned, probable cause could be discerned. But these facts were not put together until after the arrest, and Agent Pulley did not have enough information to justify a finding of probable cause when Sanudo was arrested at his home. We also observe that Agent Pulley could easily have contacted Agent Goff by radio, which was in his car and which was readily available. He himself had been in touch with other agents by this means. It was not necessary to arrest Sanudo and take him to headquarters for this purpose.

Moreover, our examination of the record shows that Agent Pulley did not know the suspicious facts to which he later attributed the arrest. Although he testified that he knew that the red Chevrolet had been at Sanudo's home that evening, he had earlier testified that the red Chevrolet had come from the vicinity of Sanudo's home at 8:20 p. m. But at no time in the record did he ever see the red Chevrolet at the Sanudo home. In fact, he himself had never been at Sanudo's home prior to this late evening visit on the date in question. Moreover, he also testified that he had learned from Agent Goff, after taking Sanudo to headquarters, that the Monte Carlo had been at Sanudo's in the evening in question; he was thus unaware of these facts when he arrived at Sanudo's home. The record unmistakably shows that the closest Agent Pulley came to the Sanudo home was five blocks away and from that distance he was unable to see any of the events that had occurred prior to the time he reached Sanudo's home for the purpose of searching Sanudo's house and talking to him.

The record is also plain that Agent Pulley did not know at the time he talked to Sanudo that other cars had been at or near the Sanudo residence earlier that evening.

The responses by Sanudo to questioning at his home could not have been known by Agent Pulley to be false. The falsity of these statements did not appear until long after the arrest when Sanudo was questioned at headquarters. (Cf. United States v. Portillo Reyes (9th Cir. 1975) 529 F.2d 844; Arnold v. United States (9th Cir. 1967) 382 F.2d 4.)

The fact that Sanudo was given Miranda warnings before he made his incriminating statements at the headquarters does not remove the taint. As the Supreme Court said in Brown v. Illinois (1974) 422 U.S. 590, at 602-603, 95 S.Ct. 2254, at 2261, 45 L.Ed.2d 416:

"If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest . . . the effect of the exclusionary rule would be...