U.S. v. Torres, 81-5827

• Decision Date: 17 September 1984
• Docket Number: No. 81-5827,81-5827
• Citation: 741 F.2d 1323
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar TORRES, Daniel Narvaez, and Javier Dario Gomez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1323

741 F.2d 1323

UNITED STATES of America, Plaintiff-Appellee, v. Oscar TORRES, Daniel Narvaez, and Javier Dario Gomez Defendants-Appellants.

No. 81-5827.

United States Court of Appeals Eleventh Circuit.

Sept. 17, 1984.

Weiner, Robbins, Tunkey & Ross, William Tunkey, Geoffrey C. Fleck, Miami, Fla., for Torres and Narvaez.

Bruce H. Fleisher, Coral Gables, Fla., for Javier Dario Gomez.

Robert J. Bondi and Jon May, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before KRAVITCH, HATCHETT and CLARK, Circuit Judges.

PER CURIAM:

In our most recent opinion, United States v. Torres, 720 F.2d 1506 (11th Cir.1983), we reversed the district court's ruling that appellants Torres and Narvaez lacked standing to challenge the warrantless entry and search of the house in which they were arrested, remanded for further findings of fact, and retained jurisdiction. The district court's Order on Remand, dated January 17, 1984, having been filed in this court, and the case resubmitted to this panel, we now decide appellants' Fourth Amendment and sufficiency-of-the-evidence claims. ¹

At the suppression hearing below, appellants presented the affidavit of Alexander McLaughlin, the purported owner of the house, who stated that appellants had been given permission to stay in, and had access to all areas of, the house. Appellants testified that McLaughlin had given them permission to stay in the house and that they had been there for two days prior to their arrests. In addition, Torres testified that he and Narvaez had been on a fishing trip and that he believed McLaughlin to be the owner of the house. Concluding that appellants had failed to meet their burden of establishing a legitimate expectation of privacy in the house, the district court denied their motion to suppress.

From the Order on Remand, appended to this opinion, it is now clear that the district court's ruling did not rest on the conclusion that the situation described by appellants, if found as fact, would not support a legitimate expectation of privacy. Rather, the court based its ruling on its finding that the evidence introduced by appellants was unworthy of belief. Under the heading "Findings of Fact As to Defendants' Expectation of Privacy," the court stated:

Having considered the Defendants' demeanor as well as the content of the evidence they presented, I find that the testimony in support of the Defendants' claim of standing is not credible.

* * *

* * *

I give no credence to the McLaughlin affidavit.

* * *

* * * While the Defendants did come forth with evidence in support of their claim, I find that this evidence was not credible and unworthy of belief. I therefore find that the Defendants did not have a legitimate expectation of privacy in the residence searched.

Order on Remand at 1327 - 1328. Because the district court offered ample support for its credibility determination in this case, we accept the court's conclusion that appellants failed to establish the requisite expectation of privacy. Thus we hold that the district court did not err in denying appellants' motion to suppress.

With regard to the sufficiency-of-the-evidence claims, we must sustain appellants' convictions if, taking the view most favorable to the government, a reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (Unit B en banc), aff'd on other grounds, 459 U.S. 1034, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). A review of the record, including the evidence which the district court properly refused to suppress, demonstrates that the jury might have reasonably concluded that the evidence established appellants' guilt beyond a reasonable doubt. Accordingly, we affirm their convictions.

AFFIRMED.

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

OSCAR TORRES and

DANIEL NARVAEZ,

Defendants.

Case No.: 81-136-Cr-JWK.

ORDER ON REMAND

On December 12, 1983, the Eleventh Circuit Court of Appeals ordered that this case be remanded to the District Court so that the Court could clarify its previous finding that the Defendants Torres and Narvaez lacked standing to contest the entry of a residence in which they and eight bales of marijuana were found. Upon review of the record, this Court adheres to its original ruling for the following reasons:

I. Factual Setting.

Sometime during the latter part of February or the beginning of March of 1981, Customs Patrol Officer Thomas Arnold received information from a confidential informant that a marijuana offload would occur near Gallagher's Dock in Tavernier, Florida. [MS. 8, 47, 48]. The informant told Arnold that an unknown quantity of marijuana would be arriving in two vessels. [MS. 52].

In response to this information, various agents of the Drug Enforcement Administration, the United States Customs Service, and other police agencies initiated surveillance in the vicinity of Gallagher's Dock. The surveillance post consisted of a Winnebago camper equipped with radar and night scopes. [MS. 18, 22]. The Winnebago was located approximately three hundred yards from Gallagher's Dock, in a location where it was not possible to see the dock itself. [MS. 25]. At approximately 1:30 A.M. on the morning of March 22, 1981, Customs Agent Thomas Arnold and other agents inside the Winnebago saw on their radar screen two "blips," representing two motor vessels entering the bay. [MS. 9, 57]. The two vessels were spotted approximately two and one-half miles from land after they had entered the bay. Agent Arnold, through the use of a night scope, was able to ascertain only that the first vessel was larger than the second vessel, and that the second vessel was, in his opinion, following behind the first. [MS. 24].

When first observed, both vessels had their running lights on, but as they approached Tavernier Key their lights were switched off. [MS. 57; T. 90, 117]. Shortly after it had switched off its lights, the smaller vessel turned around and left the bay. The larger vessel, a white Sports Fisherman, thereafter proceeded toward Gallagher's Dock [MS. 60], the only dock in the area. [T. 91]. Officer Arnold, who remained at the Winnebago position, observed this vessel come out from the Gallagher's Dock area approximately thirty minutes later. [T. 91]. Using a Customs patrol vessel, Officer Arnold intercepted this larger vessel, ALEJANDRA I, and found codefendants Gonzalez and Gutierrez on board. [T. 93-96]. Marijuana residue was found on the stern area of the deck and in the bilge area. A "brick" of marijuana was found on the dash of the vessel. [T. 97].

Prior to the departure of the ALEJANDRA I, Deputy Sheriff Thomas Warwick had observed a truck drive into Harry's Restaurant nearby. Warwick observed an individual exit the truck and enter a brown van. Both vehicles then proceeded to Gallagher's Dock. [T. 162]. Within one-half hour, first the truck and then the brown van were observed leaving Gallagher's Dock. [T. 163, 184-85]. The truck proceeded north on U.S. 1 [T. 184-85] where it parked at an address on Atlantic Street. [T. 186].

While maintaining a surveillance position to observe any activity near the truck [T. 186-87], Special Agent Jasper Mateer saw the brown van enter the Atlantic Street area, near where the truck was parked. After ten minutes, the brown van left and was followed by Agent Mateer to 226 Buttonwood Lane. [T. 188]. Agent Mateer observed at least one individual exit the brown van and enter the house located at that address (referred to at trial as "Captain Al's" place). [T. 214-15].

Agent Mateer then returned to the Atlantic Street location where the Ford truck remained parked. [T. 188]. Agent Mateer approached the truck and, in doing so, smelled marijuana. [T. 189]. The "roll-up door" of the truck was open about 10-12 inches when Agent Mateer approached the truck. [T. 256]. Defendant Gomez's legs were observed standing in front of approximately 52 bales of marijuana [T. 189] which weighed approximately 1,606 pounds. [T. 258-59]. Gomez did not possess any keys to the truck. [T. 244].

After Gomez had been arrested, agents went to an adjacent house and spoke with a resident, who informed the agents that he had given permission to a friend, named "Captain Al," to park the truck in his yard. A yellow receipt for repair work, with the name "Captain Al" on it, was given to the agents by the occupants of the house. [MS. 78]. The agents were aware that a person named "Captain Al" lived on Buttonwood Lane, several miles away; they decided that they should make a trip to the home of "Captain Al." [MS. 79].

The agents positioned themselves on Buttonwood Lane and approached the property line of "Captain Al's" (Alexander McLaughlin's house). The house itself sits toward the end of a street, which culminates in a cul-de-sac. As the agents approached the driveway of the house, they observed an individual walking toward them from the front of the house. This man was later identified as co-defendant Parker. Agent Mateer observed the brown van, which he had previously seen, in front of the house and saw bales of marijuana through its windows. [MS. 80]. Marijuana residue, pieces of burlap, leaves and seeds were strewn from the front of the van to the house. [MS. 80]. Marijuana residue was also observed on the steps going into the house. [MS. 82].

As Parker approached the officers, he was asked if he was "Captain Al." He responded that he was not. [MS. 80]. He produced identification upon demand. He was asked whether other persons were in the house; he stated that two other persons were in there, but that he was not aware of their names. [MS. 80]. Parker explained that he had been doing carpentry work for the owner of the house and that he was waiting for the owner, "Captain Al," to...