United States v. Geronimo Muniz-Melchor

Before GOLDBERG, GARWOOD and DAVIS, Judges. Circuit GARWOOD, Judge: Circuit Defendant-appellant Gerónimo Muniz- Melchor (Muniz-Melchor) appeals his con- possession viction of of marihuana with intent to distribute it in violation of 21 841(a)(1). U.S.C. § Muniz-Melchor con- tends that the district erred in sup- pressing the marihuana removed from a tank mounted in the bed of his truck as fruit illegal search under the Fourth Amendment. We affirm.

Facts and Proceedings Below At approximately p.m. 6:15 April 12, on approached Muniz-Melchor tempo- fifty- least tank truck. chor’s checkpoint rary fixed im- mounted It capacity. gallon five approxi- Highway Patrol Border truck the cab mediately behind Marathon, Tex- south miles five mately the above rose and of width the spanned U.S.- the of north miles seventy as, and Gutierrez truck.2 the of bed the of sides appeared sign “slow” A border. Mexican pocket his with tank the of the side tapped the mile south aof quarter about tanks. all such habitually did to knife, he as by shortly thereafter followed checkpoint, not did Gutierrez, tank the According to cones, flashers and traffic sign, “stop” whose aof tank ring bell-like the yield inspec- primary the into leading travelers some penetrated not been has exterior consisted itself checkpoint area. tion scratch noticed also Gutierrez manner. se- Patrol Border two and a Suburban indicating to tank, of the the side on marks vehicles. pursuit as used were dans, which laid have been tank the that Gutierrez of whom all agents, Patrol Border Three side.3 armed, on down apparently and uniform were pur- days, min- Gutierrez, only a few for seven checkpoint According to the manned operations stop, he field their initial orders the Muniz-Melchor’s to after suant utes day in to the fifth permission 12 was his (April for supervisor. Muniz-Melchor asked operated.) to truck the checkpoint to move and the the truck inspect which traveling north area, Muniz- traffic and inspection most stopped secondary agents the inquire re- to requests. order 385 in Highway to these agreed on Melchor travelers. direct such on query status counsel’s immigration to defense to the sponse Muniz-Melchor whether toas examination Pa- of Border signal the with Complying by truck his the to consented (Gutierrez), Johnny Gutierrez agent trol “No. responded, Gutierrez, Muniz-Melchor Customs the U.S. agent also was who just around everyone, they search Only as (the Customs Department Immigration and every- open they would soNot that. like stopped his Muniz-Melchor Department), Muniz-Melchor’s Before stuff.” thing and checkpoint. the truck pickup Ford black area, secondary the to moved was truck Mun- testimony at According Gutierrez’s to bed the that, although noticed him- Gutierrez identified trial, Gutierrez iz-Melchor’s dirty, were truck the underside the and identify to Muniz-Melchor asked and self the bed tank securing the bolts the complied with Muniz-Melchor himself, and indicating Gutier- clean, were truck Mun- asked then Gutierrez request.1 recently re- been had tank Mexico, that rez coming from he if iz-Melchor Muniz-Mel- asked then Gutierrez moved. had he responded Muniz-Melchor and removed, been had tank chor whether for in Mexico parents visiting his been responded Muniz-Melchor and Muniz-Mel- asked days. Gutierrez three its instal- since removed been status, had not tank immigration his proof of chor earlier. years two lation docu- valid produced Muniz-Melchor noticed exam- area, then Gutierrez secondary Gutierrez mentation. At the any According to have appear closely. did more truck Muniz-Melchor ined with like clothing ap- or the tank on the gauge Gutierrez, extra or luggage fuel be- gallons fifty-five stuck him. peared truck when move it would concealment in tank trained Having been he testified Gutierrez rocked. also was Gutierrez Department, by the Customs other faulty gauges similar seen tank propane aof notice special took compartments. false with tanks Muniz-Mel- open bed mounted whether below record from is unclear It Eng speak could not Muniz-Melchor Because before, simulta- the scratches noticed Gutierrez communicat bilingual lish, Gutierrez he tapping on side with, his just after neous Spanish. ed in tank. of the three as evidence admitted court district 2. The tank, showed two pictures truck. of Muniz-Melchor’s bed tank in subsequent After Gutierrez consulted with the other searches both Gutier- agents checkpoint, Kelly and, further, agents Border Patrol at the one rez and agents Drug called the U.S. Enforce- had cause to believe Muniz-Mel- (DEA) trafficking ment Administration for assistance. chor was in contraband before According Gutierrez, purportedly Kelly's he informed Mun- he consented to further fact, search of the truck. The district court iz-Melchor of this responded that, and Muniz-Melchor something years' if there was in sentenced Muniz-Melchor to three there, prove it, imprisonment, years' supervised must but that two re- nothing lease, fifty special there was in there. and a dollar assessment. appeal This followed. agents approximately The DEA arrived thirty forty-five to minutes later and were Discussion apprised developments up to that challenges point. According special agent Muniz-Melchor first the to DEA Kelly (Kelly), district court's determination that Gutier Tom he then asked Muniz- tapping propane Meichor, through interpret rez's on the side of the Gutierrez as an tank did not constitute a search under the er, any prob whether Muniz-Melchor had Fourth Amendment. This is an issue of Kelly's inspection lems with truck, further impression. agreed first Cf. United States v. Co and Muniz-Melchor to his burn, (5th Cir.1989) request. noting 876 F.2d 373 After the scratches and (agent tapped gas tank, agents on tank mounted in bed clean bolts of the the DEA agent away secondary of defendant's truck but after re moved the truck inspection from the inspect safety purposes ceived defendant's consent to area for in order truck). to vent the from the tank. The agents then removed the tank from the bed essentially that, Muniz-Melchor contends Kelly of the truck. discovered a false com tapping-for because Gutierrez's partment tank, containing ap inside the warrant, probable there was neither a proximately pounds one hundred of man- cause, express nor consent-tainted wrapped cellophane. huana subsequent by searches Gutierrez and Kel Muniz-Melchor, approxi then arrested ly, sup the district court should have mately p.m.4 According Gutierrez, 8:30 pressed the marihuana seized from the as he read Muniz-Melchor his Miranda Miller, tank. Cf. United States v. 546, 821 F.2d rights, exclaimed, "They Muniz-Melchor (11th Cir.1987) (stop 549-50 of defen put it in there." suspicion dant's car without reasonable subsequent posses- tainted defendant's consent to Muniz-Melchor was indicted of search). sion of marihuana with intent to distribute car's Muniz-Melchor's contention obviously premised assumption 841(a)(1). § on the it in violation of 21 U.s.c. He tapping pretrial suppress constituted a search under filed a huana removed from the tank as fruit of an motion to the man- the Fourth Amendment. The district court, however, specifically tap illegal found the search under the Fourth Amend- ping Waiving right jury trial, to be an unobtrusive action not consti ment. Muniz-Melchor consented to the district his to a tuting a search under the Fourth Amend questions conducting joint suppression ment. While we review of law court's hear- novo, ing de and bench trial. The district court de- suppression reviewing ruling "[i~n nied Muniz-Melchor's motion a trial court's on a and convicted him of the offense as suppress motion to fly based on live testimo- charged. suppression hearing, The court found that Gutierrez's at a the trial tapping purely findings on the tank was an unobtrusive court's factual must be amounting accepted clearly erroneous, action not Fourth Amendment. The court also found to a search under the unless or in- law, fluenced and the evidence must be viewed most an incorrect view of the voluntarily that Muniz-Melchor consented for as muchas four-and-a-halfhours beforehe was arrested. discrepancy 4. There was some as to the time. Muniz-Melchor testified that he was detained 1434 that are items respect with be- prevailing party favorable officer, enforcement a law Maldonado, plain view v. States United low. ...” New See of a vehicle.6 the exterior Cir.1984). such 809, 814 F.2d S.Ct. Class, v. York Amendment, there Fourth Under (“The (1986) [vehicle 965-66, in ‘inevitably yet distinct analytically “two visibility mandated number’s] identification ” dis whether (1) issues:

tertwined’ exterior to the similar it more makes invaded procedure investigative puted compart- glove trunk than car protected defendant interest course, is car, of aof exterior ment. (2) Amendment; Fourth under thus eye, and public into thrust un reasonable invasion whether ”); a ‘search.’ not constitute it does examine Ken v. Rawlings circumstances. der S.Ct. Lewis, Cardwell tucky, (plurality) (1974) L.Ed.2d J., concur (Blackmun, (1980) examina- limited ‘search’ (“With the omitted), quoted (citation ring) taking wheel tire tion 1078, 1083 Parks, the of exterior the from scrapings paint of issue is threshold Thus, the Cir.1982). to lot, we fail parking in the left vehicle tank the on tapping Gutierrez’s whether privacy of expectation what comprehend of Muniz-Mel- interest a invaded omitted). See (footnote infringed.”) was Amend Fourth the under protected chor Sei- and LaFave, Search 1 W. generally ment. Supp.1989). (1987 zure, § 2.5(b) & 347, States, U.S. 389 United v. Katz In purpose the that reflected evidence (1967), the 576 507, 19 L.Ed.2d S.Ct. 88 the of the side on tapping of Gutierrez’s the rejected Court Supreme States United integ- the structural determine towas tank un- trespass a constitutes what that notion i.e., whether the tank’s its rity of exterior — con- necessarily laws property various der man- in some penetrated been had exterior Amend- Fourth the under a search stitutes unpene- that testified ner. Gutierrez (“the at 511-12 Katz, S.Ct. 88 See ment. ring, bell-like a emit should tank trated not people, protects Amendment Fourth in the of the amount of regardless Katz, in analysis of light In places”). calculated not was Thus, tapping the tank. a adopted has instead Court Supreme the such, the contents, of as the indicate to pri- of expectation legitimate reasonable whether, regardless merely tank, but v. Green- See, e.g., vacy test.5 California previ- contents, its wall present tank’s 1628, 1625, 100 35, 108 S.Ct. wood, 486 U.S. White, 766 penetrated. ously been Cf. v. Rakas (reasonable); (1988) 30 L.Ed.2d deciding wheth- (not n. 3& 1331-32 F.2d at 430-33, 421, 128, 99 S.Ct. Illinois, U.S. 439 down pushing agent’s Patrol a Border er Katz, 88 (legitimate); (1978) 387 L.Ed.2d 58 automobile, determine anof trunk the concurring) J., (Harlan, 516-17 S.Ct. heavy objects contained trunk the whether generally example, one For (reasonable). inspect the further whether thus and of expectation reasonable a not does a constitutes vehicle aof exterior the ers” on in- Amendment Fourth threshold the 5. Because Michael, 645 See, v. e.g., States United search. a search constitutes concerning what quiry (en Cir.) (5th 14 256 n. & n. rea- 256 defendant’s F.2d terms in largely couched beeper a of inquiry (assuming is in- banc) that attachment expectations, sonable search, con to the a inquiry as a van constituted further the exterior with tertwined concurring States See of seven expressed search. view trary reasonableness Cir.1985) (9th 1328, 1331 intru White, a minimal finding F.2d such 766 judges, unable has "been Circuit (noting agents’ the Ninth reasonable light of justified sion was search’ ‘no bright between line engaged a crimi define defendant suspicion that unreasonable”’). not but denied, S.Ct. 'search U.S. 102 activity), cert. nal 489, (1981); United 257 227, 70 L.Ed.2d issues expressly resolved not has This Cir.1976) (en Holmes, 227-28 officer’s enforcement law relating whether attach whether equally as to banc) (dividing vehicle of a the exterior with physical contact right wheel rear beeper to the aof ment Amend- Fourth search under constitutes search). constituted van specifi- defendant’s Court has example, this For ment. "beep- installation whether cally addressed trunk to if objects determine those were The investigative procedures in Lovell illegal aliens, search, was a in any can be event somewhat factually distinguished the minimal from pushing intrusion those in trunk case because a person down was who entrusts luggage reasonable under to an circum- airline obviously stances). does so with the knowledge that luggage will be handled—even handled The government persuasively argues roughly by others. weight of this — that, if purpose even of the tapping distinction, however, is diminished were to reveal the nature of the tank’s widely accepted notion that the expecta contents, this opinion Court’s in United tions of privacy in the personal contents Lovell, F.2d 910 Cir. baggage, such as defendant 1988), suggests the tapping would not Lovell, are substantially greater than the constitute Lovell, search. this Court privacy expectations in an on-the-road auto held that Border agents’ Patrol removal mobile, such as that defendant in luggage defendants’ after it had been present case. See United States v. Chad checked airline counter, ticket their wick, 2484, 53 compression of the sides of the luggage to L.Ed.2d (1977); South Dakota v. Op them, force air out of perman, and their sniffing S.Ct. that air to determine (1976); whether the luggage Lewis, Cardwell v. contained contraband did 2464, 2469, constitute a search under the Fourth Amendment. See id. at 913 (citing with approval United The tank open mounted bed of Viera, F.2d 510-11 Muniz-Melchor’spickup truck could hold as Cir.) (“ ‘[Sjomeinvestigative procedures de much fifty-five as gallons of propane. It signed to obtain incriminating spanned evidence the width of and rose several from person are such minor inches intrusions above top the sides of the upon privacy and truck’s integrity bed. they are tank was part of the exposed not generally exterior considered of the searches truck. Although or sei zures Gutierrez’s subject tapping on the side of the safeguards tank of the may have fourth constituted a ”) (citation technical trespass, amendment.’ omitted), which is a relevant factor in denied, determining cert. whether the tapping search, constituted a (1981)). L.Ed.2d 169 The Court in Lovell Parks, see tapping did reasoned that the defendant “had no rea not constitute a meaningful invasion of expectation sonable lug his Muniz-Melchor’s property rights. Nor did gage would not be moved or handled. His it constitute an invasion of Muniz-Mel- expectation reasonable of privacy with re chor’s reasonable legitimate expecta- spect to his luggage the contents —that tions of privacy. Surely Muniz-Melchor would not be exposed to view—was not must have reasonably expected that some- compromised by agents’ actions.” Id. one, such gasoline as a attendant, station at 915. might against lean the tank or touch it in In the present case, Muniz-Melchor had some Likewise, manner. it cannot be said expectation reasonable that the contents that Muniz-Melchor could reasonably ex- of the tank would not be exposed public pect that no might one tap Thus, the tank. view. As earlier, by discussed we tapping the conclude that the district court did not side tank, of the Gutierrez err in determining at best deter- tapping Gutierrez’s mined whether further side inspection tank did not constitute a tank were necessary under the Fourth ascertain na- Amendment. ture of its contents. Gutierrez’s tapping At glance, first Supreme Court’s did expose contents, its certainly less so opinion in Hicks, Arizona v. than exposed Lovell (1987), luggage defendant’s by compressing its seem to suggest a different result. In sides. Hicks, police officer, who had lawfully communicating they apartment to others that entered the defendant's because "nosy" through floor, should not be and examine what a bullet had been shot many expensive equipment has been concealed. In circumstanc- noticed some stereo es, suggests apartment. Suspecting the fact of concealment itself inside the equipment stolen, slight expectation the officer moved at least a components Thus, practical some of the in order to read what is concealed. on a numbers, level, and record their serial some of the defendant in Hicks could be char- which matched the numbers of stolen having acterized as concealed that which equipment. equip- stereo The Court held that the was behind or underneath his stereo moving equipment and, therefore, officer's of the stereo ment in his residence constituted a search. See id. 107 S.Ct. at having reasonably expected that someone "taking equipment 1152. The Court reasoned that would not move that to reveal action, objectives hand, unrelated to the of the what was concealed. On the other intrusion, exposed say authorized to view seems more difficult to that Muniz- portions apartment concealed or its Meichor, by mounting large propane contents, produce did a new invasion of open pickup truck, tank in the reasonably expected bed of his

respondent's privacy (emphasis . .. ." Id. tap that no one would added). Thus, opinion the Court's in Hicks exposed Lovell, the side of the tank. See arguably suggests slight that even the (distinguishing 849 F.2d at 915 Hicks be- touching object by of an a law enforcement clearly cause the officer in Hicks officer, tapping such as Gutierrez's on the privacy expecta- invaded the defendant's tank, side of the truck bed search under the Fourth Amendment. constitutes a conceivably tion that "items which could have been hidden under the stereo would Hicks, however, properly distinguished stay hidden"). sum, Hicks does not compel from the case on both on an ab- this Court to characterize Gutier- practical First, tapping stract and a level. as above rez's search. on the side of the tank as a noted, widely accepted gener- it is that one ally substantially greater expectation has a Muniz-Melchor raises another issue in his home and its contents than Thus, appeal closely in his automobile. on an abstract that is intertwined with level, foregoing tap the defendant in Hicks had a much the issue as to whether the greater expectation ping Citing in the stereo constituted a search. Dela equipment apartment Prouse, 648, 1391, in his than Muniz- ware v. (1979), 1V[uniz-Melchor Melchor had in the tank mounted 59 L.Ed.2d 660 ar open Lovell, gues purpose temporary in the bed of his truck. See that of the (distinguishing checkpoint illegal aliens, 849 F.2d at 915 Hicks be- was to detect that physical intrusion, limited, obviously cause "the while such aliens could not have been apartment tank, and, therefore, occurred in the defendant's inside the that Gutier clearly legitimate expecta- by tap where he had a rez exercised unbridled discretion privacy"). ping tion of the tank in violation of the Fourth government Second, emphasized Amendment. The does not the Court in Hicks dispute primary purpose that, by moving equip that some of the stereo checkpoint illegal numbers, was to detect aliens. In ment in order to view its serial deed, revealing something Muniz-Melchor does not seem to con the officer was validity stopping previously test the vehicles at a had been left concealed temporary checkpoint person fixed for such a lim defendant.7 When a something-e.g., by placing has concealed purpose. ited See United States v. Vene a note face writing gas-Sapien, (5th down on a desk so that the on it is 762 F.2d 418-19 Cir. 1985). Prouse, person implicitly See also 99 S.Ct. at 1401 & not revealed-often that stated, equipment) 7. The Court in Hicks "It matters not that hidden behind or under the letters nothing any great per photographs. search., the search uncovered or happens A search is a even if it nothing respondent-serial to disclose but the bottom of a sonal value to the numbers Hicks, (what might conceivably turntable." 107 S.Ct. at 1152-53. rather than have been

1437 n. 26 (narrowly that, holding without rea subsequent intrusions on Muniz-Melchor’s suspicion, sonable law enforcement officers privacy interests were reasonable under cannot randomly stop a motorist for a driv the Fourth Amendment. It is clear that er’s registration license and spe check and any warrantless search at such a fixed cifically noting that holding does “[t]his immigration checkpoint is reasonable preclude spot ... checks involve less “only if upon probable based cause or intrusion do not involve the uncon consent. Consent probable cause strained exercise discretion”); United grounds alternative justifying war- States v. McFayden, 865 F.2d 1310- rantless vehicle searches. If either (D.C.Cir.1989) (citing Venegas-Sapien ground prior existed search, in support of its upholding the validity of a search was valid proof of the other roadblock conducted in systematic man ground is required.” United States ner for principal purpose of traffic en Sutton, F.2d (5th Cir. forcement connection with a pro 1988) (citations omitted). gram drug to curb trafficking). Moreover, The district court found that Muniz-Mel- appears tank have been chor separately consented to the searches large enough person to hold a —albeit by both Gutierrez and Kelly. The court small one—and could have had air holes also that, found prior Kelly’s drainage readily were not apparent. Cf. and removal of the revealing tank the false Jackson, 825 F.2d compartment containing marihuana, Cir.1987)(en banc) (dictum) (discussing the the agents probable cause to search constitutionality of roving or fixed check the truck in light of the totality point searches of automobiles near border circumstances. See Gates, Illinois v. areas pursuant to “area warrants” and U.S. 2317, 2332, S.Ct. stating that “when only government (1983) (endorsing a totality-of-the-cir- interest asserted is illegal immigration, the cumstances analysis probable scope of cause de- border area searches lim must be terminations respect with compartments ited to warrant-based large enough to se searches); United States Mendoza, crete person”), denied, cert. 100 & n. 1011, 108 Cir.1983) (applying S.Ct. 98 L.Ed.2d 661 and 484 the totality analysis Gates 98 L.Ed.2d 679 determinations Moreover, respect with to war- points searches). rantless out that the Border Patrol at the checkpoint, such Gutierrez, were also Muniz-Melehor informed Gutierrez that authorized to enforce the laws regarding he had been in Mexico visiting parents his controlled substances in Title 21 of the for days, three but Gutierrez did not see U.S.Code. Gutierrez so testified at trial. any luggage, clothes, or similar items in We conclude stop that the present the cab or bed of the Moreover, truck. case was legitimate one to enforce feder Gutierrez noticed a number of discrepan- al immigration laws and was not shown to respect cies with to the tank indicating that abe subterfuge mere for enforcement of may have been removed in order place federal narcotics laws. See United States contraband inside. As earlier, discussed Lopez, 543, 777 547 1985) Cir. Gutierrez, who been trained by the (“[t]he law does require Department Customs in tank concealment, ignore evidence of other crimes in conduct tapped on the tank, side of the but the tank ing legitimate roadblocks....”), quoted in did not emit a ring, bell-like indicating that McFayden, 865 F.2d at 1312. its exterior had been penetrated in some

Having determined that the district court manner. Gutierrez testified that “[w]he- did not err in finding that the tapping was never the metal has been ... cut with a and, a search therefore, did not taint torch or cut hacksaw, awith or ... has the subsequent warrantless searches of passed been through with foreign object, Muniz-Melchor’s truck by Gutierrez and ... this bell-like quality ceases to exist.” Kelly, must we next address whether these Gutierrez noticed scratches the side of light observations, tank, indicating may be viewed in that the tank knowledge, training been laid on its side. He also noticed that of the law enforce ment officers involved in the warrantless bolts, the truck, which secured the tank to the Reed, dirty search. See United States v. were clean in contrast with the 147, (5th Cir.1989); truck, indicating F.2d United States bed and underside of the Edwards, 883, (5th Cir.) (en recently 577 F.2d that the tank had been removed However, banc), denied, 968, from the truck. Muniz-Melchor cert. 439 U.S. 99 S.Ct. 458, generally informed Gutierrez that the tank had not 58 L.Ed.2d 427 See LaFave, supra, 8, 3.2(c). And, been removed since it was mounted on the § 1 W. note making probable determination, years cause truck two earlier. Gutierrez also arresting (and, gauge we have stated that inferentially, noticed that the tank's fuel read that searching) per fifty-five gallons officer is it contained degree rocked, indicating mitted to consider both the even when the truck was (or search) gauge mechanically intrusion which the arrest will stuck or exigen tampered occasion and the law enforcement had been with in some manner. particular Gutierrez testified that he had seen similar cies in the situation. Raborn, 593; malfunctioning gauges propane See 872 F.2d at cf. 1 W. on other LaFave, supra, 3.2(e). containing compartments. § note

tanks false isolation, probable no one of Gutierrez's A cause determination in respect practical, observations with to Muniz-Mel- chor's truck and its contents or Muniz-Mel- volves "`a common-sensedecision probability whether ... there is a fair queries contraband or evidence of a crime will be chor's answers to Gutierrez's probable particular place.'" would constitute the truck and its tank. A succession of cause to search found in a United Cisneros-Mireles, States v. 739 F.2d (5th Cir.1984)(involving otherwise "innocent" circumstances or a warrantless search) (quoting Gates, events, however, may probable automobile constitute (citations omitted)). cause when viewed as a whole. We do not S.Ct. at 2332 Probable isolation, requires substantially consider the several factors in but cause less evidence context, support rather in their interrelated where than that sufficient to -i.e., proof beyond a conviction may other, each reinforce the so that the a reasonable doubt- suspicion.'" may greater but more than "`bare laminated total indeed be than Raborn, parts. 872 F.2d the sum of its See United States v. Fooladi, (5th Cir.1983); Cir.1989) (quoting Brinegar 703 F.2d v. United Sanchez, States, 1302, 1310, U.S. v. 689 F.2d 508 at 514-16 & (1949)).8 present (5th Cir.1982); LaFave, supra, L.Ed. 1879 The evidence n. 10 1 W. 8, 3.2(e), support § note at 595 & nn. 168-69. View- ed in of such a determination must However, quantum and 474 U.S. it is unclearwhetherthe 88 L.Ed.2d 52 required (1985); Adcock, of assurance United States v. 756 F.2d preciselyfixed,or, so, just (5th Cir.), denied, be more within this if where cert. spectrum example, 2329, (1985). it lies. For al- 85 L.Ed.2d 847 Accord Texas though Supreme Brown, 730, 1535, 1543, Courtin Gatesalso stated 460 U.S. 103 S.Ct. "probable requiresonly probability (1983) (plurality opinion) (probable cause L.Ed.2d 502 activity, or substantialchanceof criminal an actual not 103 any showing cause "does not demand that such showing activity,"Gates, of such likely a belief be correct or more true than 13, S.Ct.at 2335n. the Courtrefusedto more false"); Cruz, 47, United States v. 834 F.2d preciselyspecify quired. degree of assurancere- (2d Cir.1987) (probable require cause does not SeeId. at 2330. proof probable "that it is more than not that a being committed"), This Court has indicated in dicta that a "more crime has been or is cert. denied, 1077, 1056, likely (from perspective 484 U.S. 108 S.Ct. than not" standard generally LaFave, officer) applicable, See 1 W. Search of a reasonable see United (2d 5upp.1989) Tinkle, 617, and Seizure criteria. ed. 1987 & 655 F.2d 622-23 Cir. (discussing degree probability required 1981), denied, cert. probable determination). (1982), for a Under the 71 L.Ed.2d 467 as well as some level of that, necessary assurance less than see United States v. facts of this case it is not for us to Antone, (5th Cir.), elect between these rather abstract standards 753 F.2d cert. denied, general 88 L.Ed.2d 52 within the more Gates criteria. ing incriminating the overall context of the events and totality defendant's belief that no presented, evidence will be found. All of these of the evidence in relevant, cluding training prior expe factors are but none of the six Gutierrez's and dispositive." respect concealment, United States v. Ted rience with to tank ford, (5th Cir.1989) favorably government, 875 F.2d 451-52 most to the (citations omitted). prevailed below, Reed, see 882 F.2d at that, although we conclude the issue is respect With to the voluntariness of certainly one, adequately a close the record status, Muniz-Melchor's custodial he con supports the district court's determination tends that he was not free to leave the agents probable cause to checkpoint and, therefore, effectively was prior search the truck and its tank to the being custody. government held in performed by Kelly.9 Thus, it is responds that the fact that Muniz-Melchor unnecessary for this Court to address the may have been "seized" for Fourth Amend question as to whether the district court purposes checkpoint ment at the does not properly found that Muniz-Melchor con being render Muniz-Melchor as held in offi Kelly's Sutton, sented to F.2d at 1085. search. See custody. Gonzales, cial See 842 F.2d at Discussing the lawfulness of fixed checkpoints Jackson, only question this Court stated: left for this Court "Checkpoint agents may stop query to resolve is whether the district court and citizenship, properly motorists about their and found that Munis-Meichor con request production prior inspection also of documents ev- sented to Gutierrez's idencing right to be in the United tank. The has the burden of Moreover, checkpoint agents proving voluntary by States. may selectively consent clear and con vincing refer motorists to sec- evidence. See United States v. ondary inspection Gonzales, (5th Cir.1988). areas for additional 842 F.2d questioning articulating any finding without rea- "A trial court's of consent will doing practice, clearly son for so. .. . brief not be overturned unless errone checkpoints given detentions agents' ability increase ous. Consent to search must be identify illegal by knowingly voluntarily aliens and under the `to affording greater opportunity tality them a of the circumstances.' We have scrutinize individual vehicles and their primary outlined six factors to consider occupants, thereby develop probable making (1) in untariness of the defendant's custodial this determination: the vol- support cause or obtain consent Jackson, (em- status; (2) presence search." 825 F.2d at 862 of coercive phasis added) (citations omitted) (involv- procedure; (3) the extent and level of the ing permanent checkpoint stop). cooperation police; defendant's (4) with the right Although ultimately the defendant's awareness of his Muniz-Melchor was consent; (5) to refuse the defendant's detained for over two hours as the intelligence; (6) inspected tank, education and the truck and its Gutierrez law). Thus, 9. The determination whether law enforcement Amendment is a conclusion of we probable assume that we review de novo the district officers had cause to conduct a war- question properly rantless search involves a mixed of law court's determination whether the facts noted, purely (or found) and fact. As we defer found assumed to be so consti findings they factual of the district court unless tute McConney, cause. Cf. United States v. clearly Maldonado, erroneous. See 735 F.2d 728 F.2d 1199-1205 & n. 4 Accepting facts, however, Cir.) (en banc) (holding at 814. those the ulti that the determination probable exigent mate determination as to cause for a as to circumstances for a warrantless question question warrantless search seems to be a search is a of law reviewed de novo stating "[p]robable exigent law for this Court to decide. See Potter v. Unit and that cause and States, (5th Cir.1966) implicate very ed ("Whether 362 F.2d circumstances similar standard concerns"), denied, any of review cert. there was cause for particular always (1984). gener search without a warrant 83 L.Ed.2d 46 See judicial question.); ally Davis, cf. United States v. 2 S. Childress & M. Standards of Bowles, (5th Cir.1980) Review: Federal Criminal Cases and Administra 625 F.2d 533 a. 7 (reasonableness Appeals (1986). § seizure under Fourth tive 11.1 at 104 permanent omitted) (involving re- tions requested and initially he that testified stop). checkpoint the to consent Muniz-Melchor’s ceived Muniz-Melchor infer after we that only suggests minutes search Muniz-Melchor the light of his light in checkpoint. the not well-educated stopped at was he speak inability nature to and limited his origin and routine and Mexican lawfulness speak inability to stop Although when Muniz- the checkpoint English. initial the analysis, the Gutierrez, dis- the the to English is relevant to consent gave Melchor to Muniz- nothing as Muniz- reveals found that record below specifically court trict any intelligence. If custody. education Melchor’s then in not was Melchor defense from may be inferred thing, it many that emphasizes Muniz-Melchor Muniz-Mel- question to failure counsel’s agents, some DEA and Patrol Border as six matters that such respect in this chor present armed, were visibly were whom to Muniz- helpful materially not be would Muniz-Melchor whereas checkpoint, the at Unit claim. involuntariness Melchor’s Cf. summa- Muniz-Melchor’s Even was alone. Charles, F.2d States ed however, that reveals facts, ry Cir.1984). agents were Patrol Border three most no was there contends Muniz-Melchor requested initially Gutierrez when present incriminating no showing that he believed his inspect to consent Muniz-Melehor’s testi Gutierrez be found. would evidence that reflects Moreover, the record truck. Muniz- that, he informed when at trial fied in time at that was only Gutierrez the assist called for they had that Melchor vicinity Muniz-Melchor’s immediate re Muniz-Melchor agents, of DEA ance came agents two other that truck there, something that, if was there plied after Muniz- only assistance to Gutierrez’s it, there that but prove must agents consent.10 gave his Melchor testimony at This nothing there. was as to Mun- testified specifically Gutierrez supports Muniz-Mel- ambiguously best Border with cooperation iz-Melchor’s Indeed, testi Gutierrez contention. chor’s For his truck. inspection agents’ Patrol that, agents DEA discovered after fied Muniz- that testified example, Gutierrez when Gutierrez marihuana the truck cab out of the stepped his Miranda Melchor reading Muniz-Melchor to permission asked exclaimed, “They when Gutierrez Muniz-Melchor rights, asked Muniz- Gutierrez inspect When And, it. it in there.” put secondary moving it that, about if Muniz- Melchor even emphasizes correctly reentered area, Muniz-Melchor consent inspection that realized have should Melchor unable he was so, interests, and when to do truck such his be in best not would to permitted controlling he it clearly restart to circumstance secondary area. See it push of voluntariness. issue ultimate Galberth, F.2d in he did not conceded Gutierrez -, denied, - U.S. Cir.), cert. right to refuse his Muniz-Melchor form 167, 102 L.Ed.2d Muniz-Mel- requested he when consent below-refer Moreover, Muniz-Melchor’s Al truck. inspect permission chor’s inference testimony supports enced any vol- factor critical this is “a though he to Gutierrez consent gave he when Gonzales, analysis,” untariness nothing would be likely believed then giv has stated “[t]he discovered. to such warnings prior ing of Miranda contends, simply Muniz-Melchor Finally, re is not checkpoint] [consent-based trial, testimony at contrary to Gutierrez’s have to did defendant] nor quired, [the request for any consent to that he did refuse right he had told How- tank. or its his truck inspection (cita- Sutton, F.2d at consent.” did not simply he because do so did not emphasizes that Gutier also Muniz-Melchor at that time. him any with consent forms written request Muniz-Melchor's rez failed However, he testified Gutierrez consent. ever, questioned when as to whether fringes he did upon expectations of privacy when consent, so testified, Muniz-Melchor “No. might actions reveal information about Only they as search everyone, just around an item other presence than the of contra like that. they Not so open would every- band, even though appearance of the thing Indeed, and stuff.” Gutierrez and item itself does not suggest contraband, the Border agents’ search, Patrol unlike despite exigent circumstances. Arizona v. that of Kelly and agents, the DEA primari- Hicks, 480 U.S. 107 S.Ct. ly involved inspection. visual Viewing the (1987); L.Ed.2d 347 United Jacob totality of the regard evidence with due to sen, 466 U.S. S.Ct. the district court’s opportunity judge (1984); Place, credibility witnesses, Cobum, see 696, 103 U.S. S.Ct. 77 L.Ed.2d 110 876 F.2d at we find that the trial court (1983). clearly was not erroneous in determining that Muniz-Melchor voluntarily consented In Place, the Court held exposure of by Gutierrez. From this and luggage to a trained canine to determine the other circumstances, probable cause de- the luggage whether contained contraband veloped subsequent for the search conduct- did not constitute a search under the fourth by ed Kelly, as noted above. amendment.2 In reaching holding, this For the foregoing reasons, judgment Court stated that: of the district court is A by “canine sniff” a well-trained narcot- AFFIRMED. ics detection dog, however, does not ex- pose noncontraband items that other- GOLDBERG, Judge, Circuit wise would remain public hidden from dissenting: view, does, for example, an officer’s In my day, tap dancing was art an form. rummaging through the lug- contents of Much my chagrin, however, the border gage. Thus, the manner in which infor- patrol agent’s tapping in this ease is not as mation is obtained through this investi- edifying. By constitutionalizing this activi- gative technique is much less intrusive ty, has, the majority effect, chosen to tap typical than a Moreover, search. dance over fourth amendment concerns. sniff only discloses the presence ab- or Yet even the most reluctant ears would narcotics, sence a contraband item. of agree that the constitution’s tintinnabula- despite Thus the fact the sniff tells tions a step. invite different Dutiful something authorities about the con- this harmony, I respectfully dissent. of luggage, tents the information Supreme Under precedent, obtained is limited.3 search occurs when the infringes state upon expectation Jacobsen, of privacy In that society employees private ship- considers reasonable.1 The in- ping company accidently open broke Class, 106, 112, 1. New York v. 475 U.S. legitimate expectation S.Ct. privacy by virtue 960, 965, (1986); 89 L.Ed.2d 81 United States right Expectations to exclude. privacy Jacobsen, 109, 113, 1652, 1656, 466 U.S. 104 S.Ct. protected by amendment, the fourth (1984); 80 L.Ed.2d Maryland, Smith v. course, need based aon common-law 735, 739, 2577, 2579, personal property, interest real or or on the (1979); Illinois, 128, 143, Rakas v. interest_ invasion of such an by But fo- 421, 430, 58 L.Ed.2d 387 cusing legitimate expectations Rakas, the Court that: stated in fourth jurisprudence, amendment Legitimation expectations privacy by altogether law Court has not abandoned use must have a source outside property fourth concepts determining pres- amendment, either concepts reference to ence or absence by protected interests personal of real or property or law to under- that Amendment. standings recognized permitted Id. by society. One of the rights attaching main Place, property 2. right is the exclude others ... possesses one who owns lawfully or property controls will in all likelihood have Id. ac- the officer’s that argued The state sub- powdery Noticing a white package.4 The Su- a search. not constitute did tions agent who federal a stance, they called reasoning that: disagreed Court preme deter- powder and of the a trace removed equip- the moving of [ojfficer Nelson’s holding that In it was that mined cocaine.5 “search” a however, constitute ment, did was powder examination agent’s the for search the apart from and separate the commented search, the not a weapons that victim, and shooter, the from Place. passage quoted above into entry his objective of lawful was the distinguish attempt Respondents inspecting those Merely apartment. the physi- no involved that it Place, arguing into come that the turntable of parts effects, the unlike Place’s of cal invasion not would search during the latter view However, the here. issue conduct search, independent an have constituted clear, reason the makes quotation no addi- produced would because pri- any legitimate upon intrude not did respondent’s of invasion tional governmental the was that vacy interest interest_ action, un- taking But the nothing about reveal could conduct the autho- objectives to the related of is rationale That items. noncontraband exposed to view intrusion, which rized applicable fully here.6 apartment the portions concealed prop- for the stand thus Jacobsen Place a new inva- contents, produce did its gov- when place takes a search that osition unjusti- respondent’s sion of information reveal might action ernmental that exigent circumstance by the fied though item even noncontraband about a not It entry.... matters the validated not does item itself appearance nothing uncovered search Hicks contraband. presence respon- suggest personal value any great this idea. developed search, even further A... search dent. if the bottom nothing but it discloses the defen- searched Hicks, police a bul- learning after apartment dant’s turntable.12 The through the floor.7 of the infor- importance shot been let had reflects Hicks victims, and suspects, searched. by for item revealed officers searched mation in powder defendant Jacob- and the Suspicious in Place luggage weapons.8 contra- presence one apartment, suggested his in each stereo had stolen sen in powder homogeneous serial the stereo’s recorded Unlike band. officers emanating from Jacobsen, smell numbers or the found the officer numbers.9 however, Place, the contents in marijuana The serial moving the by equipment.10 for Hicks, number serial its was the stereo equipment proved numbers from be determined example, could consequently the defendant stolen and impor- And, perhaps more for indicted appearance.13 robbery.11 by packages found containers Not all at 1655. Jacobsen, 104 S.Ct. U.S. at will de- during search the course 5. Id. fourth amend- protection the full serve (for Thus, example a containers some ment. 1662n. S.Ct. at n. at 124 6. Id. 466 case) by gun their burglar or a tools kit of added). (emphasis any support reasonable very cannot nature contents their privacy because expectation of Hicks, at 1152. appear- their outward can be inferred from 8. Id. Similarly, contents cases the in some ance. view," "plain open to there- package will be 9. Id. a warrant.... obviating the need determining difficulties will be There 10. Id. re- from automobile parcels taken 11. Id. do and which for their quire a warrant only means this case decision not. Our 12. Id. generally required before a warrant and that searched luggage can be personal Sanders, 442 U.S. also Arkansas 13, 13. See applies amendment which the fourth extent n. n. depends parcels other containers and added): (1979) (emphasis

1443 tantly, Hicks instructs that even in the face contraband14 and Jacobsen where “the exigent circumstances, of the state not governmental conduct could reveal nothing 15 further privacy invade interests. Thus ac- about the noncontraband items.” Under cording cases, trilogy this of the state the language Hicks, of moreover, only not infringes upon expectations privacy of was the tapping “unrelated objective when its actions might reveal information 16 of authorized intrusion” i.e. the border about an item other presence than the of search, but appearance also the tank, of the contraband, though even the item itself like the Hicks, turntable’s in did sug- appear does not contraband, contain de- gest presence of contraband. The spite face of exigent circumstances. agent’s tap thus constituted a search under Under this trilogy, agent searched the fourth amendment it might because Melchor’s tank tapped when he it. The have presence revealed the of non-contra- majority states “purpose of Gutier- band items and the exterior of the tank did agents] rez’s tapping on the [the side of the not itself suggest the existence of contra- tank was to determine integ- structural band. rity i.e., of its whether the tank’s exterior — The majority argues also that there are exterior penetrated had been in some man- relatively expectations diminished priva of ner.” Yet it is difficult to understand the cy in 1435, automobiles. At citing United agent’s concern with the tank’s exterior Chadwick, States v. Lewis, Cardwell v. agent unless the desired information about and South Dakota v. Opperman.17 Based tank’s contents. The echo tap cases, these majority then could presence reveal the concludes of items other the threshold than contraband. what If constitutes a “pen- Melchor had search is relatively etrated” the tank, exterior lower for he could automobiles have than in places. hidden other numerous This non-contraband item conclusion is a public from sequitur. non Acquiring view. In information and Lewis, Chadwick about noncontraband items probable had contravenes cause to conduct both Place where the Court stated a search.18 In Opperman, sniff only could presence disclose the searched car under an inventory proce- they all whether seized are from an automo- not of especially private an type, the owner of bile. bag expectation has no in it. One course, Of explains this rationale simply the result in infer cannot what is bag in the camera Class, 106, New 960, York 475 U.S. S.Ct. 106 appearance." such, from its outward As (1986). Class, 89 L.Ed.2d 81 In panel Court held held that owner a reasonable expectation there no priva- reasonable expectation implicating fourth cy inspection in vehicle arriving numbers. protection.). amendment holding, the Court reasoned that vehicle Place, 707, inspection 14. 462 play U.S. at important numbers 103 S.Ct. at 2644. role in government regulation and that federal law re- Jacobsen, quired 111, 15. them be 466 U.S. at visible to an observer S.Ct. at outside 1655. 114, of the car. Id at 106 S.Ct. at "The 966. car, course, Hicks, exterior of a is thrust 16. into the S.Ct. at 1152. public eye, and thus to examine does 114, constitute "search.” Id 106 S.Ct. at 17. 433 U.S. 97 S.Ct. 53 L.Ed.2d 538 point To state this (1977); in the terms of the Sanders, language of everything (1974); ascertainable from inspection a vehicle can number gleaned appearance. from its Class thus does not resolve the Chadwick, case where the contents 433 U.S. at 97 S.Ct. at 2479 of a public (“whether tank are hidden from view. required warrant before See Sylvester, also agents may open federal a locked footlocker (5th Cir.1988) ("[A] container they cannot be lawfully seized at the time opened unless its plain contents are owners, view or the arrest of probable there is when they can be inferred from the container’s out- cause to believe the footlocker contains contra- appearance_ ward photographer’s band’’); A Cardwell, camera 417 U.S. at 94 S.Ct. at bag often contains taking (“Under items associated with these, circumstances such as film, pictures: cloth, lenses, lens collapsi- exists, extra where ex- warrantless ble tripod, however, etc. One say, could not amination of the exterior the car is not un- that because items bag usually ...”). found reasonable Cf. Coo in Carroll. presented from I address it.19 they impounded after dure [87 California, per points these each significance v. Dom Cady ... 788, 17 L.Ed.2d 730] turn. 2523, 37 S.Ct. 433 browski, 413 U.S. [93 cause, in United Concerning probable Op v. Dakota ... South L.Ed.2d 706] that held “[i]f the Court v. Ross20 3092, 49 S.Ct. 364 428 U.S. [96 perman, aof the search justifies probable cause these Many of 1000]_ L.Ed.2d the vehicle, justifies it stopped lawfully showing of a require not do searches its of the vehicle part every of search contains the vehicle that probable cause the object of the may conceal that contents contraband.23 the holding, reaching this In search.” v. in Carroll decision discussed Court mobility of demonstrates Ross held Court The Carroll States.21 creating an in significant was automobiles automobile of an search a warrantless that Mo- requirement. warrant exception the proba- who officers by police stopped only however, a concern becomes bility, contained vehicle the believe cause ble probable has first the when under unreasonable not was contraband contra- presence of suspect the Regarding Car- amendment.22 the fourth cause, of loss the probable Without band. stated: Ross roll, in the Court of movement through the the contraband rec- Congress had days its earliest [sjince is There an issue. is not the automobile securing a impracticability the ognized search Automobile suspect. nothing transpor- involving the in cases warrant are probable cause predicated cases It is this goods. contraband tation the analysis of to the irrelevant thus per- in historical viewed impracticability, case, in- the present In the case. the the basis provided that spective, which a search was there whether quiry is nature Given decision. Carroll that an interest create could in turn transit, rec- Court in automobile contraband. might vanish with automobile intrusion immediate ognized Lewis, cited Consequently, Chadwick and are to secure police officers necessary if analysis advance majority, do not by the short, the In substance.... illicit a diminished there should of whether es- requirement warrant exception automobiles expectation of scope of which —the in Carroll tablished consti- of what the threshold lower would only to applies in this consider we case— a search. tutes supported that are vehicles searches of a ease Opperman, use of majority’s class In this The cause. impound- police after the if involving a search unreasonable cases, is not Op- misplaced. car, similarly justify ed a would on facts based mobility of stated though a Court warrant, perman even aof issuance itwhy only reason ob- automobiles actually been has warrant of auto- searches warrantless permitted the searches Warrantless tained.... circumstances.24 some in a mobiles upheld varie- been automobiles explained that: different quite contexts factual ty 806-809, In S.Ct. at 2163-2164. 369, at 102 23. Id. 3097 96 S.Ct. at U.S. at Opperman, 428 19. car police California, the searched Cooper v. police local impounded, ("When vehicles aof the direction they impounded it under after practice generally routine follow departments 60, at 87 S.Ct. Cooper, at 386 U.S. statute. state inventorying automobiles’ securing and Cady, searched Similarly in 790. contents.”). and was accident in an had been car after 436, at Cady, U.S. by its driver. abandoned 2157, S.Ct. 20. 456 U.S. at S.Ct. 2525. (1982). 3096; at U.S. Opperman, 428 Sanders, 99 S.Ct. L.Ed. 21. Arkansas (1979) ("There are be- the distinction for essentially reasons two property. private other automobiles tween at 2159. Ross, element mobility, less [b]esides rigorous requirements warrant govern America, UNITED STATES of expectation

because with Plaintiff-Appellee, respect to one’s significant- automobile is ly relating less than to one’s home discharging office. their varied John Valdez MARTINEZ Antonio a/k/a responsibilities ensuring public Stefano, Johnny Martinez, a/k/a a/k/a safety, law enforcement officials are nec- Johnny Martinez, Valdez Tony a/k/a essarily brought frequent contact with Stefano, Johnny Martinez, a/k/a V. Automobiles, automobiles.... unlike Johnny Martin, a/k/a Val a/k/a Juan homes, subjected pervasive dez Martinez and Paula Fowler Bu continuing governmental regulation and shon, Defendants-Appellants. controls, including periodic inspection licensing requirements.25 No. 88-5636. This rationale for diminishing expectations in an inappli- automobile is also United States Court Appeals, cable to agents case. The stopped Fifth Circuit. Melchor purportedly protect govern- Feb. ment’s preventing illegal interest immi- gration. The created the bor- checkpoint

der agents where the stopped guard

Melchor to very this interest. How-

ever only government “when the interest

asserted illegal immigration, scope

border area searches must be limited to compartments large enough to secure a

person.” Yet person no reasonable could any

believe that being human would be

lodged in a propane tank. Perhaps my

knowledge anatomy and the characteris-

tics of foreign, tanks are but from

my experience, I any- cannot believe that

one would seek human breath in the echos tap.

aof Our court is not concerned with immigration lilliputians. And fourth safeguards

amendment not mini- should

turized drug problems because of the country.27 First, repeatedly as the recognized, majority has Lopez, 27.The cites also United States mobility inherent Cir.1985) automobiles often propo- impracticable makes it to obtain a warrant.... require sition that "the law does not configuration, In addition regula- use and ignore evidence of other crimes in conduct- tion of often automobiles dilute reason- ing legitimate problem, roadblocks....” expectation able that exists with re- however, is that the border in this case spect differently property.”) situated any were not aware of "other crimes" until after they made the initial search. But the constitu- Id. 428 96 S.Ct. at 3097. tionality of this the issue to be decided. majority placed has thus before the cart Jackson, 26. attempting 825 F.2d justify horse in the search 1987) (en banc). Cir. contraband that revealed.

Case Details

Case Name: United States v. Geronimo Muniz-Melchor

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 12, 1990

Citation: 894 F.2d 1430

Docket Number: 89-1178

Court Abbreviation: 5th Cir.