U.S. v. Uribe-Galindo, URIBE-GALIND

• Decision Date: 30 March 1993
• Docket Number: D,URIBE-GALIND,No. 92-2078,92-2078
• Citation: 990 F.2d 522
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Jesusefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 522

990 F.2d 522

UNITED STATES of America, Plaintiff-Appellee, v. Jose Jesus URIBE-GALINDO, Defendant-Appellant.

No. 92-2078.

United States Court of Appeals Tenth Circuit.

March 30, 1993.

William D. Fry, Asst. Federal Public Defender, Las Cruces, NM, for defendant-appellant.

David N. Williams (Don J. Svet, U.S. Atty., and Judith A. Patton, Asst. U.S. Atty., with him on the briefs), Las Cruces, NM, for plaintiff-appellee.

Before LOGAN and KELLY, Circuit Judges, and BROWN, ^* District Judge.

WESLEY E. BROWN, District Judge.

This is an appeal of the district court's denial of a motion to suppress evidence. The case arose out of a search of appellant's car by U.S. Customs Agents at the United States-Mexico border. The search turned up over seventy-five pounds of marijuana hidden in a compartment in the gas tank of appellant's car. Appellant argued in the district court that the search was unlawful. He also alleged that customs agents had obtained a confession from him by questioning him after he had invoked the right to speak to an attorney. The district court rejected both of these arguments. The judge found that the search was reasonable and that appellant had not invoked the right to counsel in the course of questioning by the agents. Accordingly, the district court denied the motion to suppress. Appellant then pled guilty but reserved the right to appeal the suppression issues. On appeal, Mr. Uribe contends that the search of the car violated his Fourth Amendment rights and that customs agents denied him the right to have counsel present during questioning.

I. Standard of Review.

We must accept the factual findings of the district court unless they are clearly erroneous. See United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991). At a hearing on a motion to suppress, the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge. Id. Accordingly, we review the evidence in a light favorable to the district court's determination. The ultimate determination of reasonableness under the Fourth Amendment, however, is a determination of law that we review de novo. Id. As to appellant's claim concerning the invocation of the right to counsel, the determination of what appellant actually said is a question of fact that we review only for clear error. See United States v. De La Jara, 973 F.2d 746, 750 (9th Cir.1992). Whether those words are sufficient to invoke the right to counsel is a legal determination that we review de novo. Id.

II. Facts.

The facts are largely undisputed. On November 8, 1991, Customs Inspector Clay Evans was working at the United States Customs Station at the Columbus, New Mexico, port of entry from the Republic of Mexico. At 6:56 a.m. on that day he saw a red Chevrolet Blazer enter the customs inspection area from Mexico. Appellant Uribe-Galindo was the sole occupant of the vehicle. Appellant was questioned at the primary inspection area by a customs agent other than Inspector Evans. Evans was watching from the hallway of the customs station. From his vantage point, Evans saw some coconuts in the back of the Blazer. Evans was aware that the U.S. Department of Agriculture prohibited the importation of coconuts unless they were dehusked and drained of milk. The coconuts in the Blazer were not dehusked. After observing the coconuts, Evans directed the primary inspector to send the car over to the secondary inspection area.

At the secondary inspection area, Evans asked appellant to declare what he was bringing into the country. Appellant stated, as he had to the primary inspection officer, that he was bringing in "coconuts and candies." Appellant was asked by the customs agents to remove the coconuts from the car. After he did so, the agents inspected the car. A search was made of the interior of the vehicle. Inspector Sanford also examined the undercarriage of the vehicle by laying down on a mechanic's "auto creeper" and moving underneath the car. From that vantage point, Sanford noticed that the bolts on the gas tank had been tampered with and that the straps on the tank had been moved. Sanford made this observation approximately three minutes after the time appellant first entered the inspection point. Inspectors Sanford and Evans then reversed positions, and Evans examined the gas tank from underneath the car. Evans noticed wrench marks around the bolts as well as grease on the bolts. He also noticed that the fuel hose had been replaced. Based on his observations, Evans concluded that the gas tank had been removed and recently put back in place. Later, at the suppression hearing, Evans testified that he had seen gas tanks like this on two prior occasions and that both of those tanks had been found to contain marijuana.

After the agents began looking at the gas tank, appellant appeared to become agitated and nervous. The agents escorted appellant into the customs station. The agents then decided to use a fiberoptic scope to look at the interior of the gas tank. When the scope was inserted into the tank, it revealed fresh weld marks, pieces of brazing rod, and what appeared to be a compartment inside the tank. At this point the agents placed appellant in a holding cell inside the customs station. They then moved the vehicle behind the port of entry and removed the gas tank from the car. They noticed a cut on top of the tank. The top of the tank was easily popped off, and a lid on a compartment just underneath was removed. The agents found approximately seventy-five and a half pounds of marijuana in packages contained in the compartment.

Appellant was subsequently interrogated in the customs station. Agent Dan Phillips asked him questions. Because appellant spoke Spanish, Port Director Ron Morales, who was fluent in Spanish, served as an interpreter. Morales first read appellant his Miranda rights. Appellant was asked if he wanted to make a statement. He said yes and signed a form waiving his Miranda rights. According to Morales, the only question asked by appellant was whether he could have an attorney later on if he asked for one. According to Morales, appellant wanted to give a statement but was concerned whether, if he wanted to stop answering questions, he could have an attorney present. Morales testified that he told appellant that he had the right to stop the questions at any time and ask for an attorney. Morales testified that appellant wanted to give a statement and that he never asked for an attorney.

III. Discussion of the Issues on Appeal.

Appellant concedes that under the Fourth Amendment a "routine customs search" may be undertaken without any suspicion of criminal activity. He contends, however, that the search of his car went beyond the bounds of a "routine customs inspection" and therefore had to be supported by a reasonable suspicion of criminal activity. Appellant contends that the customs inspectors had no reasonable suspicion until after the search was performed.

In order to address appellant's argument, we first take note of the scope of the issue before us. Clearly, once the customs agents used the "auto creeper" and found indications that the gas tank had recently been replaced, they had a reasonable suspicion of criminal activity which justified their subsequent examination of the gas tank and the resulting discovery of the marijuana. ¹ Thus, the only issue with which we are concerned is whether the agents' initial examination of appellant's car with the "auto creeper" constituted a routine border search. ² Additionally, we note that appellant's challenge to the search is based solely on the Constitution; no argument is made concerning the governing statutory provisions.

The Fourth Amendment to the Constitution requires that searches and seizures be reasonable. In United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977), the Supreme Court reviewed its prior treatment of border searches under the Constitution and reaffirmed the principle that border searches, "from before the adoption of the Fourth Amendment, have been considered to be 'reasonable' by the single fact that the person or item in question had entered into our country from outside." Id. at 619, 97 S.Ct. at 1980. In United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985), the Court again confirmed that "the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the person and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant...." Id. at 538, 105 S.Ct. at 3309. The Court noted that the United States had strong interests relating to the control of its borders, including an interest in preventing drug smuggling. Against these interests, the Fourth Amendment rights of individuals such as appellant must be balanced. "But not only is the expectation of privacy less at the border than in the interior, but the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is struck much more favorably to the Government at the border." Id. at 540, 105 S.Ct. at 3310. For these reasons, "routine border searches" require no reasonable suspicion. United States v. Ramsey, supra. When a search or seizure goes beyond the scope of a routine border search, however, reasonable suspicion may be required. Montoya de Hernandez, 473 U.S. at 541, 105 S.Ct. at 3310.

The Supreme Court has not defined the precise contours of a "routine" border search. In Montoya de Hernandez, the Court indicated that strip searches, body cavity searches, and involuntary X-ray searches would be considered "nonroutine." Id. at 541 n. 4, 105 S.Ct. at 3310 n. 4. Several circuits, including this one, have indicated that the distinction between...