United States v. Maspero

• Decision Date: 12 September 1974
• Docket Number: No. 73-2741.,73-2741.
• Citation: 496 F.2d 1354
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Edward MASPERO, Frank Mejia Ruiz, and Roger Pacheco, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

496 F.2d 1354 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. David Edward MASPERO, Frank Mejia Ruiz, and Roger Pacheco, Defendants-Appellants.

No. 73-2741.

United States Court of Appeals, Fifth Circuit.

July 15, 1974.

Rehearings Denied September 12, 1974.

Anthony Nicholas, C. Thomas Behrman, San Antonio, Tex., for defendants-appellants.

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

Before WISDOM, AINSWORTH and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

The appellants were convicted under two counts relating to 2,900 pounds of marijuana, Count One, conspiracy to import and to possess with intent to distribute, and Count Four, possession with intent to distribute.¹ They question the validity of searches of the trailer in which the marijuana was found and the sufficiency of the evidence to support their convictions.

I. The searches.

There was evidence before the court when it denied motions to suppress on the basis of which it could conclude that the following fact situation existed. At approximately 1:30 p. m. a BNDD agent in San Antonio, Texas, received information from a confidential informant of proven prior reliability that a tractor-trailer rig had come in from Mexico that day with 2,300 pounds of marijuana in a false compartment underneath the floor of the trailer. The informant supplied the license number of the trailer and described markings on the tractor. He told the agent that the rig was parked at the location of a truck refrigeration sales and service company in San Antonio and that it was to be driven a short distance out of the city and unloaded. The informant then went with that agent and other agents to the refrigeration company and at approximately 1:45 pointed out the rig parked in a fenced compound. The agents wanted to determine the license number on the tractor and find out if there was a back exit to the fenced area. Afraid to walk in, they drove through the area in a car but could not see the truck license. They then determined to try to get closer to the rig through the owner of the refrigeration company. They ascertained by telephone that he was a person of good reputation and with no narcotics record. They talked to him and told him the situation. The owner related that work was to be performed on the refrigeration unit of the trailer, and after investigating, he told agents that the rig was "ready to roll" and should be leaving at any time. This information was imparted around 2:45 or 3:00 p. m. The owner suggested that the agents pose as interested buyers of refrigerated trailers and in that guise examine the rig. The work to be done necessitated movement of workmen in and out of the trailer. The owner and two agents inspected two or three other units, then approached the rig in question, and the owner opened the trailer doors, which were secured by a hasp but not locked. This occurred around 2:45-3:00 p. m. and after the agents were told that the rig might depart at any time. Without entering, both agents saw marijuana seeds on the floor, described as "several handfuls" and "all over the floor of the trailer." The agents climbed in, remained a short while, and climbed out. One of the agents could smell the odor of marijuana.

There was adequate probable cause to believe that the trailer was being used to transport marijuana. Indeed appellants do not contend otherwise but rather focus upon alleged absence of exigent circumstances. The time span from identification of the rig at the refrigeration company to the actual entry into the trailer was approximately an hour to an hour and 15 minutes. By the time the entry was made there were 8 to 10 agents in the vicinity working on the case. In addition to their actions already described, they were doing a number of things — checking the license numbers of cars parked in the vicinity and attempting to determine if the persons in whose names they were registered had narcotics records, tailing cars as they left the scene, following on foot persons leaving the area — all for the purpose of trying to determine if there was either a buyer or a seller of the marijuana in the vicinity.

It would have taken approximately two hours for an agent on the scene to drive to the federal courthouse, obtain a search warrant and return, driving time alone requiring approximately 30 minutes.

The foregoing evidence, especially the information imparted to the agents that departure of the tractor-trailer rig could be imminent, authorized them to enter the trailer. The search was valid. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Although not actually upon the open road when searched, the truck was in a semi-public place and had easy and immediate access to the road. Thus it clearly was not immobilized like the car in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It was not merely potentially moveable; there was a real possibility of its moving at any time. See Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835, 842-843 (1974).

As it turned out the rig did not depart the refrigeration company area immediately. During the afternoon its driver, Victoriano Compean left several times and was picked up by car and brought back. Around 5:45 he drove the rig out of the fenced compound and parked it a short distance away. He reentered the compound on foot, waited there, and received a phone call. Around 7:30, when dark was beginning to fall, he got back in the truck and drove off. This after-search span of time does not affect the validity of what had been done at approximately 2:45 to 3:00 p. m. pursuant to the exigencies then existent.² Nor does the fact that approximately an hour elapsed before the officers became aware of the exigency of possible immediate departure invalidate the action which they took when they did become aware.

When the rig departed agents tailed it in two cars. Shortly before that time they had been notified by the informant that the rig would be met by a pickup truck which would precede it to a location in South San Antonio where the marijuana was to be unloaded. The information turned out to be correct. The rig, driven by Compean, met a pickup truck. A man variously identified as David Maspero or as Frank Ruiz exited the pickup and entered the tractor, and the two units proceeded with the pickup in front. The pickup turned off the road and entered the parking area of a mission. It executed a turn, and its lights swept the street which it had just departed and were then turned off. The tractor-trailer rig continued, and the pickup pulled back to the street and fell into line behind the tailing cars. The rig turned into the driveway of the residence of David Maspero, located on a dirt road in a semi-urban area on the outskirts of the city. The pickup went past the residence, made a U-turn and then headed back in the direction from which it had come. Before it again reached the Maspero home agents stopped it and arrested the two occupants, Roger Pacheco and Raul Vasquez-Villalobos. One of the tailing units drove on to the Maspero driveway where the agents observed three persons in the vicinity of the stopped rig — David Maspero, Frank Ruiz and Roberto Vasquez-Villalobos. The agents approached, calling out that they were federal officers. Maspero ran toward the rear of the house, encountered a fence, stopped, and then surrendered. Ruiz reached for his waistband, an agent fired a warning shot, and Ruiz then raised his hands. Subsequently it was found that he was armed. Roberto Vasquez-Villalobos surrendered without opposition. Compean had remained in the cab of the tractor. These events occurred around 7:30, at which time it was entirely dark.

Around 8:00 p. m. agents entered the trailer, seized the marijuana seeds previously observed, and seized the rig as well. One wheel of the tractor had crushed in the septic tank system of the Maspero home, but the trailer was extricated and an agent drove the rig to the San Antonio office of the BNDD, arriving between 9:30 and 9:45. There a thorough search was made, and the informant's tip about a hidden compartment under the floor of the trailer proved correct. Unable to open the compartment by removing the bolts in the floor, agents forced it open with a crowbar. There they discovered 2,900 pounds of marijuana in brick form.

The seizure of the marijuana at the Maspero home and the seizure of the trailer and its subsequent search at the BNDD office were valid. The agents were armed not merely with probable cause but with certainty, based on the earlier search at the refrigeration company, that the truck was carrying contraband. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Chambers v. Maroney, supra, 399 U.S. at 52 & n. 10, 90 S.Ct. at 1981, 26 L.Ed.2d at 428-429; Carlton v. Estelle, 480 F.2d 759 (CA5, 1973); Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. at 844-845.

II. Sufficiency of the...