United States v. Martinez

• Decision Date: 14 August 1973
• Docket Number: No. 72-2685.,72-2685.
• Citation: 481 F.2d 214
• Parties: UNITED STATES of America Plaintiff-Appellee, v. Rafael R. MARTINEZ, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

481 F.2d 214 (1973)

UNITED STATES of America Plaintiff-Appellee, v. Rafael R. MARTINEZ, Jr., Defendant-Appellant.

No. 72-2685.

United States Court of Appeals, Fifth Circuit.

July 3, 1973.

Rehearing and Rehearing Denied August 14, 1973.

COPYRIGHT MATERIAL OMITTED

Anthony Nicholas, San Antonio, Tex., for defendant-appellant.

William S. Sessions, U. S. Atty., Joel D. Conant, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied August 14, 1973.

GEWIN, Circuit Judge:

On this appeal, Rafael R. Martinez seeks the reversal of his two count conviction for (1) conspiring to import approximately 628 pounds of marijuana into the United States, 21 U.S.C. §§ 952(a), 963, and to possess the same with intent to distribute, 21 U.S.C. §§ 841(a) (1), 846, and (2) the substantive offense of possessing marijuana with intent to distribute, 21 U.S.C. § 841(a) (1). He attacks his conviction on the following grounds; (1) the search and seizure which yielded the marijuana introduced into evidence violated the fourth amendment; (2) the declaration of two alleged co-conspirators were inadmissible under the co-conspirators exception to the hearsay rule; (3) the evidence was insufficient to support his conviction; (4) the special parole provisions under which he was sentenced, 21 U.S.C. §§ 841(b) (1) (B), 960(b) (2) violate the due process and the cruel and unusual punishment clauses of the constitution; and (5) Title II of the Drug Abuse Prevention and Control Act, 21 U.S.C. § 801 et seq., is an unconstitutional regulation of intrastate activity. We have carefully reviewed each of these contentions and for the reasons which follow affirm the conviction.

We begin with a discussion of the search and seizure contention. On January 26, 1972 government agents received a tip that an orange colored 1969 International flatbed truck would enter the United States from Mexico at Laredo, Texas and would be carrying approximately 600 pounds of marijuana in a secret compartment. Two days later, the truck crossed the border exactly as predicted. It was not inspected at that time, but a check of its license plates with the computer monitoring system indicated that it should be placed under surveillance immediately. The truck was discovered some thirty-five minutes later at a Laredo cafe located about four miles from the border. It was kept under constant surveillance for the next six days, a period during which it traveled more than three hundred miles from place to place in south Texas until it was stopped by customs agents in San Antonio. The details of this meandering journey need not detain us. The agents searched the truck without a warrant and found 628 pounds of marijuana in one pound packages wedged into a secret compartment beneath the bed of the truck. Between one and two hours were required to unload the marijuana.

The appellant recognizes that probable cause is not a constitutional requirement for a valid border search and further that the concept of the border is an elastic one which is not susceptible of precise definition. Nonetheless, placing particular emphasis upon the distance from the border at the time of the search (150 miles), the total mileage traveled by the truck (more than 300) and the time elapsed after the border crossing (142 hours), he contends that the search in this case was unconstitutional. He asserts that it took place after the truck's entry into the United States was complete and therefore after the full fourth amendment protections became applicable.¹ He further claims that even if the border search rationale is held applicable, the search still cannot be sustained because of the thirty-five minute break in the surveillance immediately following the border crossing. Alluding to the change of condition doctrine,² he apparently suggests that there can be no reasonable certainty that the truck was in fact carrying marijuana when it entered this country.

We find none of these arguments to be persuasive. Only a brief review of the applicable legal and constitutional principles is essential to our discussion. As this court observed very recently in United States v. Thompson:³ "Border searches, absent search warrants or probable cause, have been uniformly upheld by the Courts as long as the customs agents have had a reasonable suspicion of violations of the customs laws." Although proximity to the border and the lapse of time since the crossing are proper factors for consideration,⁴ no specific temporal or spatial limitations on the authority to conduct a border search have been imposed either by statute⁵ or by judicial decisions.⁶ Thus to reiterate, the appropriate constitutional test is a reasonableness standard,⁷ which requires a full evaluation of the circumstances leading to the search as a basis for determining its propriety.

Examining the facts of this case in light of the preceding principles, we are compelled to hold that the search in this case fell within permissible constitutional limits. An event of twofold significance occurred when the truck crossed the border at Laredo, Texas on January 28, 1972. The first independent corroboration of the informant's tip was provided and for all practical and constitutional purposes a nexus with the border was established which continued thereafter. These facts were entirely sufficient to arouse a reasonable suspicion that the customs laws were being violated. We have no doubt that a warrantless search of the truck could have been conducted at that point under the traditional border search doctrine.

Admittedly the search now under constitutional attack was far removed from that context. It took place approximately 150 miles from the border and 142 hours later in time. It is also of some importance to recall that there was a brief 35 minute hiatus just after the border crossing in Laredo during which no surveillance was in effect. The question which we must decide is whether the intervention of these factors operated to make the traditional border search rationale inapplicable to the search here involved. We think not.

As indicated earlier the courts have long recognized that the border is an elastic concept, not susceptible to precise definition in temporal or spatial terms.⁸ The wisdom of this salutary legal principle is cogently illustrated by the circumstances of this case. In order to enforce the customs laws, particularly those dealing with the illegal importation of drugs, law enforcement officials must do more than arrest the street level operative; they must, if at all possible, apprehend the ringleaders as well. This objective would not be easily attainable if the authority of customs agents to search was strictly limited to the physical border. By following the truck inland the customs agents obviously hoped to apprehend others involved in the smuggling of a large quantity of marijuana. In view of their purpose we think they used a legitimate law enforcement technique which did not undermine their authority. Moreover, at no time was the crucial nexus with the border broken, nor was there any reason for the agents to doubt their original suspicions. Except for the 35 minute hiatus which we find too brief to have been of any consequence,⁹ the truck was kept under constant surveillance. It is significant that during the course of this surveillance the agents' suspicions about the truck's illicit cargo were further heightened when the smell of marijuana was detected emanating from the compartment hidden beneath the floor.¹⁰

The application of the border search rationale to the search in this case does not offend the fourth amendment. To conclude otherwise would place this court in the untenable position of formulating a per se rule that warrantless searches 150 miles inland and 142 hours after entry into this country cannot be sustained as border searches. The appealing simplicity of such an approach must be resisted. It emphasizes the factors of time and distance to the exclusion of all other factors and thus represents a poor substitute for the reasonableness standard. We hold that the customs agents here had reasonable suspicion to believe that the customs laws were being violated and that the search of the truck was constitutionally permissible under the border search exception to the fourth amendment warrant requirement.¹¹

The appellant next contends that certain portions of the testimony of two alleged co-conspirators, Hermelindo Garcia and Benito Solis, were improperly admitted into evidence against him under the co-conspirators exception to the hearsay rule. To fully understand and assess this contention it is necessary to summarize the facts alleged to constitute the conspiracy.

As stated earlier, the 1969 flatbed truck carrying the marijuana crossed the border on January 28, 1972. After being driven to several different locations in south Texas by at least three different drivers, it finally came to rest on the evening of January 31 in Laredo where it was parked at Cabello Brothers Wrecking Yard. Hermelindo Garcia, part of whose testimony is now being challenged, came into the picture on February 2. While drinking in a bar on the Mexican side of the border, he was approached by a man whom he had never seen or met before and was asked if he would drive a truck from Laredo to San Antonio that same day. He told Garcia that the truck would be carrying marijuana and was probably under surveillance. Pay for the driver was to be about a thousand dollars. Garcia declined the offer, but referring to Benito Solis, indicated that he knew someone else who might be interested. The unidentified man agreed to the counter proposal and gave Garcia $180 to $200 in cash to pay Solis' travel expenses plus a piece of paper with the name Richard Pie and a phone number written on it. It was understood that a man known as El Coreano would...