United States v. Andres

• Decision Date: 03 January 2013
• Docket Number: No. 11–40783.,11–40783.
• Citation: 703 F.3d 828
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Gabriel ANDRES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

703 F.3d 828

UNITED STATES of America, Plaintiff–Appellee

v.Gabriel ANDRES, Defendant–Appellant.

No. 11–40783.

United States Court of Appeals,Fifth Circuit.

Jan. 3, 2013.

Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Margaret Loraine Schmucker (Court–Appointed), Austin, TX, for Defendant–Appellant.

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

Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Defendant–Appellant Gabriel Andres (“Andres”) appeals his conviction and sentence for conspiracy to possess with intent to distribute more than five kilograms of cocaine. Andres contends that the district court erred in denying his motion to suppress evidence and in applying a two-point sentencing enhancement for use of a minor to commit his crime. For the following reasons, we AFFIRM the judgment of the district court.

BACKGROUND

The factual background is based on testimony presented at the suppression hearing before the district court. In 2009, U.S. Immigration and Customs Enforcement, in conjunction with the Drug Enforcement Administration, was conducting an investigation into the drug trafficking activities of Albert Figueroa Nava (“Figueroa”) in Laredo, Texas, and elsewhere. Agents ¹ utilized physical surveillance as well as Title III wiretaps, and had already seized several hundred kilograms of cocaine and several million dollars of drug proceeds by December 2009. Based on their surveillance, agents believed that on December 11, 2009, Figueroa and Christino Dominguez (“Dominguez”) loaded approximately twenty kilograms of cocaine into a secret compartment in a red pickup truck and parked the truck on a public street in front of a Holiday Inn in Laredo, with a car carrier trailer attached to it. Agents installed a GPS device on the underside of the truck while it was parked. On December 12, 2009, agents observed Dominguez meeting with Andres near the truck, and Andres subsequently driving the truck away. For various reasons, agents believed the truck would be driven to Chicago. The agents preferred to let the truck leave Laredo without seizing it to avoid jeopardizing the ongoing investigation and to discover who would be receiving it.

The agents ceased physical surveillance of the truck around 10:00 p.m. on December 12, 2009. However, around 4:00 a.m. on December 13, 2009, the GPS system notified agents that the truck had begun to move. Agents contacted the nearby border patrol checkpoint to request that the truck not be searched, and continued to monitor the truck's location by GPS. When it became clear that the truck was heading for Chicago on I–55, agents contacted the Illinois State Police. The agents preferred that the drugs in the truck be discovered in a traffic stop, which would make it unnecessary to reveal the existence of the federal investigation. Agents informed Illinois State Police Sergeant Jamal Simington (“Simington”) that a credible confidential informant (“CI”) would soon be contacting him with information about a vehicle traveling to Chicago, but did not say anything about the Laredo investigation. The CI, assisted by agents, placed a call to Simington and described the truck, explaining that it contained narcotics and was heading for Chicago. The CI called Simington several more times to provide updated information on the truck's location, as revealed by the GPS surveillance.

On the morning of December 14, 2009, as the truck approached Chicago from the south, Simington and several members of his team, including Sergeant Chad Brody (“Brody”), were staged at various points along I–55. Simington was positioned at the southernmost point, at mile marker 241 near Bloomington, in an unmarked car. Brody was positioned at mile marker 263 in a marked car with a drug-sniffing dog. Around 5:45 a.m., Simington observed the truck pass him on I–55 and began to follow it. Simington observed that the trailer attached to the truck was bouncing or swerving within its lane in a potentially dangerous manner, and that the trailer's taillights were not operating consistently. Simington also informed the other members of his team that he had observed the truck. The truck passed Brody around 6:19 a.m. and Brody began to follow it. Brody observed that the trailer's taillights were “flicker[ing] as if there was a mechanical issue” and that the trailer was swaying back and forth within its lane. Brody initiated a traffic stop based on improper lane usage and improper lighting. The truck initially stopped on a narrow shoulder, so Brody directed the truck to pull over to a ramp to get away from the interstate traffic.²

Brody approached Andres, who was driving the truck, and requested his driver's license, registration, and insurance. Brody returned to his car and ran a check on Andres' license. Brody determined that Andres had a valid license, a clean driving record, and no outstanding warrants, and decided to issue a written warning for the traffic offenses. Brody wrote a warning ticket and returned to the truck to speak with Andres. Brody asked Andres to get out of the truck so that he could talk to Andres about the taillight problem. Andres inspected the electrical connection between the truck and the trailer. Brody told Andres that he would give him a warning ticket and handed him a clipboard to sign the ticket.

While Andres was signing the ticket, Brody asked him where he was coming from. Andres replied that he was coming from Joliet, where he had dropped off a car. However, Brody knew that Simington had spotted the truck south of Joliet, and that Andres would not have had time to stop in Joliet. Brody also observed at this point that Andres began to fidget and move his feet and arms around, which Brody interpreted as nervousness. Brody asked Andres who was in the truck with him. Andres responded that it was his stepdaughter, but he did not know her last name. Brody then patted down Andres, checked inside his jacket for weapons, and went to talk to the passenger, Noemi Gutierrez (“Gutierrez”). She stated that she and Andres had come from Joliet, where they had dropped off a van on Ruby Street.

Brody returned to speak to Andres and asked him if he had any drugs in the truck. Andres denied that he did, and said “go ahead and check.” Brody asked permission to search for drugs with his dog, and Andres consented. The dog alerted to the presence of drugs within about thirty seconds. Officers ultimately found over twenty kilograms of cocaine in a hidden compartment in the truck.

Before the district court, Andres moved to suppress the drug evidence, arguing that Brody did not initially have probable cause to stop the truck and that the duration and scope of the stop were not justified by the alleged traffic offenses. The district court denied this motion in an oral ruling following the suppression hearing. Andres then waived his right to jury trial and consented to a bench trial based on stipulated facts in order to preserve his right to appeal the suppression issue. The district court found Andres guilty of conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846.

The presentence report recommended a two-level sentencing enhancement pursuant to U.S.S.G. § 3B1.4, “Using a Minor to Commit a Crime,” because Andres and Gutierrez had brought Gutierrez's four-year-old daughter on the drive to Chicago “to make the appearance of a family who was traveling and thus to avoid the detection of the narcotics that were being concealed in the vehicle.” Andres filed an objection to this enhancement. The district court overruled the objection, finding that Andres and Gutierrez brought along Gutierrez's daughter to “giv[e] the impression that this was a family outing.” The district court sentenced Andres to 135 months of imprisonment followed by five years of supervised release. Andres filed a timely notice of appeal.

DISCUSSION

I. Motion to Suppress

Andres argues that the drug evidence should be suppressed because it was obtained through an unreasonable search that violated the Fourth Amendment. He argues that the initial traffic stop by Brody was not justified because it was “based on pretext rather than any actual offense.” He further argues that even if the stop was initially justified, Brody's continued questioning and dog search were not reasonably related to the circumstances warranting the stop. Finally, he argues that the warrantless use of a GPS device to track his movements for several days constitutes an unreasonable search or seizure.

“In reviewing a district court's denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo.” United States v. Lopez–Moreno, 420 F.3d 420, 429 (5th Cir.2005) (citation omitted). “In reviewing findings of fact, we view the evidence in the light most favorable to the party prevailing below, which in this case is the Government.” Id. (citation omitted).

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. This protection extends to vehicle stops and temporary detainment of a vehicle's occupants. United States v. Shabazz, 993 F.2d 431, 434 (5th Cir.1993). We analyze the constitutionality of a traffic stop using the two-step inquiry set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). United States v. Macias, 658 F.3d 509, 517 (5th Cir.2011). First we determine whether the stop was justified at its inception. Id. If the initial stop was justified, we determine “whether the officer's subsequent actions were reasonably related in scope to the...