United States v. Miller

Decision Date25 May 1972
Docket NumberNo. 71-1502 to 71-1504.,71-1502 to 71-1504.
Citation460 F.2d 582
PartiesThe UNITED STATES of America, Plaintiff-Appellee, v. Aubrey Westley MILLER et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

COPYRIGHT MATERIAL OMITTED

Mark C. Meiering, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., with him on the brief), for plaintiff-appellee.

Richard G. Reinjohn, Los Angeles, Cal., for defendants-appellants.

Before LEWIS, Chief Judge, and HOLLOWAY and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Aubrey Westley Miller, Donald Earl Laster and Dale Gordon Barkley were convicted on Count II of a three-count indictment of concealing and facilitating the transportation and concealment of approximately 512 pounds of marijuana in violation of 21 U.S.C.A. § 176a. They appeal the jury verdict. Counts I and III were dismissed before trial.

On March 12, 1971 at about 8:00 a. m., a Ford Econoline van and a Chevrolet El Camino pickup truck entered the Port of Entry at Columbus, New Mexico. Laster and Miller were in the van. Barkley and a juvenile, not a party to these proceedings, were in the pickup. Robert Williams, a customs agent, found three marijuana seeds in the front of the pickup. He did not detain the appellants, but he did inform another customs agent of the incident and he described the vehicle. He also conveyed the same information to the U. S. Border Patrol Agency.

After the appellants left the Port of Entry, they drove to Deming, New Mexico, where they rented motel rooms. After breakfast, they showered and slept.

Nearly two hours before appellants passed through the Port of Entry, U. S. Border Patrol Agents Cheadle and Looker discovered footprints of four persons who had crossed the border into the United States. These agents were searching for signs of illegal entry by aliens. They testified that the footprints were larger than those of the usual alien. Agents Cheadle and Looker followed the tracks for several hundred yards away from the border. They found three large duffel bags hidden in the brush close to the Pancho Villa State Park from which they identified the odor of marijuana. The discovery was reported and a stakeout of the park was ordered.

Several agents conducted the surveillance-stakeout of the Pancho Villa State Park area. They testified that at about 4:00 p. m. on March 12th, a large self-contained mobile home drove into the park. The occupants of the mobile home were later identified as Bill Humphries, Gregory Kruse, Michael Pemberton and Peggy Browne.1 About 9:30 p. m., the agents noticed that appellants' Ford van had entered the park. It was parked next to the mobile home. A short time before the van arrived, three persons left the mobile home and walked to the west area of the park. They were moving around in the brush as if searching for something. Eventually they re-appeared carrying several bags which they placed near the road on the south side of the park. These bags did not appear to be the same bags which the agents had discovered that morning.

At approximately 11:00 p. m., four persons left the mobile home and walked south toward the Mexican border. The next movement occurred about 1:00 a. m. on March 13, 1971 when four more persons left the mobile home and walked to the south side of the park. They appeared to be bundling something on the ground. About 1:30 a. m. they were joined by four persons coming from the direction of the Mexican border who appeared to be carrying large bags on their backs. Seven persons were next seen carrying the bags to the mobile home while one person stood nearby. Lights were seen in the mobile home for about an hour and one-half after the bags had been delivered there. Two persons were next seen leaving the mobile home. They entered the van. Some three hours elapsed without any activity being noted by the agents. About 6:00 a. m. Miller and Laster left the mobile home and entered the van. About 6:30 a. m. the agents saw the van leave the park. The mobile home left shortly thereafter. Both vehicles were being driven in the direction of Deming, New Mexico.

The agents who conducted the surveillance in the park pursued and stopped both vehicles. A search of the mobile home disclosed six large bags containing about 512 pounds of marijuana. The appellants were in the van. They, as well as the occupants of the mobile home, were arrested and taken into custody.

I.

The appellants challenge the legality of the warrantless search of the mobile home. Predicated upon Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) they argue that: (a) the agents could not have conducted a valid search of either vehicle while on the Pancho Villa Park grounds for lack of probable cause; and (b) that the agents, with prior knowledge of what they intended to search for, could not wait until the vehicles left the park and entered the highway in order to render the warrantless search valid under the exceptions announced in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Chambers, supra, and Carroll, supra, held that an automobile, because of its mobility, may be searched without a warrant where there is probable cause in circumstances that would not justify a warrantless search of a house or an office. The existence of "exigent circumstances" justifies substitution of police judgment as to probable cause in lieu of that of the magistrate. In Chambers and Carroll the police had probable cause predicated upon reliable information tying the moving vehicles to specific criminal acts.

The United States Supreme Court held that the same "exigent circumstances" found in Carroll and Chambers did not exist in Coolidge, supra. There the police entered Coolidge's home where he was arrested under authority of a warrant. His car was parked in the driveway to his house. Prior to the arrest the police knew of the car's probable connection to the murder. The Court noted there was no way that either Coolidge or his wife could gain access to the car since the police guarded the Coolidges' premises. In none of the cases cited by appellants were the vehicles used as the instrumentalities of an apparent continuing series of criminal acts.

On two specific occasions during the surveillance the agents observed large bags being handled near or being taken into the mobile home The agents did not know how many more bags might be delivered or how many more persons and vehicles might have become involved. Their surveillance was not concentrated on one person, one isolated action, or one vehicle, but rather on a continuing series of activities involving a number of persons unknown to them, and at least two vehicles. Their stakeout covered the perimeter of the park. It is only with the advantage of hindsight provided by the record that we can state that because there was no apparent activity on the park grounds between the hours of approximately 3:00 a. m. and 6:00 a. m. that one or more of the agents may have been able to drive into Deming, prepare and execute an affidavit and obtain a search warrant for entry and search of the mobile home before it left the park. This possibility does not dictate the necessity of a search warrant under the circumstances.

In determining whether a search warrant should have been obtained, we must evaluate the circumstances as they would have appeared to prudent, cautious and trained police officers. Trusty v. State of Oklahoma, 360 F.2d 173 (10th Cir. 1966); Murray v. United States, 351 F.2d 330 (10th Cir. 1965), cert. denied 383 U.S. 949, 86 S.Ct. 1207, 16 L.Ed.2d 211 (1966); Chappell v. United States, 119 U.S.App.D.C. 356, 342 F.2d 935 (1965). At about 1:00 a. m., the agents knew that they were dealing with at least eight persons and two vehicles. At different intervals of that night they observed several groups of persons leave the mobile home and venture out into the desert. Shortly after 1:30 a. m., eight persons were seen at or near the mobile home in possession of large bags. The persistent surveillance was firmly grounded on the detection of the odor of marijuana from the original duffel bags by agents with years of experience. This isolated region of New Mexico was ideal for smuggling from Mexico. The suspicious activities of the appellants in the park, combined with the belief that the bags contained marijuana, met the probable cause requirement justifying the highway arrests and search of the mobile home. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Roa-Rodriquez v. United States, 410 F.2d 1206 (10th Cir. 1969).

The appellants stress Agent Skelton's testimony that he was unsure whether his detection of the odor of marijuana from the three duffel bags discovered hidden in the park was sufficient to support the probable cause requirement for a search warrant. His subjective state of mind did not objectively render the cause any less than reasonable. The warrantless search of the mobile home was reasonable under the totality of the facts and circumstances.

II.

The appellants contend that Agent William Garcia's testimony was ambiguous and inconsistent and should not have been admitted. Garcia drove Miller and Laster to Las Cruces, New Mexico after their arraignment. Garcia testified that in response to questions he posed concerning the price of marijuana in Mexico, Miller stated that "he" or "we" paid $8.00 a pound for it. Miller and Laster testified that Miller said "you" could buy it for $8.00 a pound. Garcia, on cross-examination, stated that Miller might have used the pronoun "you" but that he did not remember.

The doubt expressed by Garcia concerning Miller's statement affects the weight of Garcia's testimony and not its admissibility. The admission of evidence lies largely in the trial court's discretion and will not be set aside...

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