United States v. Mary Dangerfield Bengivenga
811 F.2d 853
5th Cir.
1987
Check Treatment

*1 dirеctly who is contractor independent indemnitee. to the

responsible 1986)(em- (West 9:2780

La.Rev.Stat.Ann. § added). Reading & Bates inter- As

phasis agree- it invalidates Act

prets the they indemnify extent that” “to the ments against by the loss caused

the indemnitee not negligence; the Act would

indemnitee’s by the indemnitor’s caused

apply to loss Reading Bates & therefore

negligence. part of indemnity for least

seeks negli- McBroom’s own by

the loss caused

gence. was addressed precise argument Conoco, ‍‌​‌‌​​​​​​​‌‌​​​​‌​​​‌​​‌‌​​‌​‌‌‌​‌‌‌​​​​‌​​​​​​‍Meloy in rejected application On for re

hearing Meloy, in we vacated question to the

opinion certified the Supreme along with two Court

Louisiana questions concerning the Act.

other related Conoco, 792 F.2d 56 Cir.

Meloy v.

1986). Supreme ac The Louisiana Court of this but has

ceрted certification the issue. yet decided acceptance the Louisi- light certification of Supreme Court of our

ana for us question we believe it

this of the mandate until issuаnce ‍‌​‌‌​​​​​​​‌‌​​​​‌​​​‌​​‌‌​​‌​‌‌‌​‌‌‌​​​​‌​​​​​​‍withhold its Supreme renders

the Louisiana Court instructed The clerk is therefore

decision. pending case the mandate

to hold by the Louisiana

receipt of the decision Meloy.

Supreme Court America, STATES of

UNITED

Plaintiff-Appellee, BENGIVENGA,

Mary Dangerfield

Defendant-Appellant. Court of

United States *2 Garza, Associates, Frank M. Canales & three similar marijua- suitcases contained Christi, Tex., Corpus defendant-appel- for They na. removed the suitcases and lant. tags. checked the baggage The suitcases identification, had no baggage but Oncken, Atty., Henry K. U.S. Susan L. they claims indicated that were checked Yarbrough, Gough, James R. Asst. U.S. through to Alice. Houston, Attys., Tex., plaintiff-appel- lee. During inspection their of the luggage,

Ms. peered and her friend nervously out the window and watched the agents’ closely. actions The con- ferred briefly, and Ramos testified that Judge, Before Santana told him that those two women GEE, and Judges. GOLDBERG Circuit only passengers were the traveling to Al- GEE, Judge: Circuit Agent ice.2 Ramos then reboarded the bus questioned and sitting two males in front Mary Dangerfield Bengivenga chal- of the two women as to their destination. lenges po- introduction evidence the They replied they going were to San lice elicited from her giving Mi- Agent Antonio. Ramos then asked the warnings. randa po- Because we find the destination, women their they answer- lice had cause to arrest Ms. Ben- ed “Alice.” He next they asked them if givenga her, questioned any luggage, denied. With reverse her conviction and order the tainted this, he stеp asked them to off the bus. suppressed. evidence leaving bus, Ms. present After tribulations in response to began night shortly midnight questions, after further at speсifically denied checkpoint the border seven miles the marijuana-laden south suitcases were Falfurrias, Texas, on Highway Agent U.S. 281.1 theirs. Ramos escorted the two into The trailer, commercial bus on which she and her while the bus remained at the companion female traveling checkpoint. Both women very nerv- stopped checkpoint by Border repeatedly ous and ownership denied of the Agent Santana and Ramos. Santa- suitcases. He produce asked them to their na boarded the bus for a routine check of bus tickets. Bengivenga opened When Ms. the passengers’ citizenship. question- This envelope containing ticket, Agent ing revealed that all of the ten to fifteen baggage Ramos noticed claim stubs in it. travelеrs were the country legally. Dur- He asked to see They the stubs. matched ing this questioning, initial Ms. tags suitcases, claim and he then and her companion volunteered placed the two women under arrest and Alice, were bound Texas, a small town advised them of rights. their constitutional 50 miles north of the checkpoint. Agent questioning The entire in the trailer took Santana then left the bus to check the only about a minute and a half. luggage bins for illegal aliens. In the compartment front among he found appellant argues that she was eight pieces seven suit- entitled to Miranda cases that strongly smelled her in thе trailer. The agreed with him that is whether custody she was in checkpoint 1. recognized passengers the function- did not ask the their destina- equivalent al tions, border. See United but that the women and a few others Salinas, 611 F.2d 128 event, any volunteered this information. Santana, based on information from practice Ramos testified that it was his Agent Ramos believed that the two women were question passengers citizenship toas only passengers bound for Alicе. destination, and he assumed that Santana had done so. Santana testified ten or fifteen were ‍‌​‌‌​​​​​​​‌‌​​​​‌​​​‌​​‌‌​​‌​‌‌‌​‌‌‌​​​​‌​​​​​​‍headed for interrogation. Berkemer during the 3138, Alicе, up road, 420, 435, 104 a small town McCarty, 468 U.S. appeared The an knew that these two women nerv 82 L.Ed.2d dealing “In with applying ous. ... result depends swer probabilities. we deal with These are not there was test: whether four-factored *3 technical; the arrest; (2) prac are factual and whether the cause to probable everyday of life on subjective tical considerations had a officer law enforcement men, defendant; le (3) reasоnable and whether which the intent to hold gal Brinegar act.” v. United that technicians subjective a belief had the defendant 1302, restricted; 160, 175, States, 69 338 U.S. significantly was her freedom 1879, 1310, (1949); investiga 1890 see also of 93 L.Ed. focus the whether the Preston, 626, v. 608 F.2d 632 time of at the the defendant tion was on Cir.1979) (5th (quoting Brinegar), cert. de v. Alvarado quеstioning. United States 940, (5th Cir.1986). 2162, 422, nied, 446 U.S. 100 S.Ct. 64 Garcia, F.2d 425-26 781 794 In these L.Ed.2d circumstanc the four first note that of We es, must conclude that Ramos or factors, compelling is whether “thе most appellant cause to arrest the probable had investigation final has not the focus he the trailer. before v. Brown on the defendаnt.” ly centered (5th Cir.1972) 1284, The existence of to Beto, cause 468 F.2d omitted); investiga the (footnote see United States arrest in addition to focused Ledezma-Hernandez, 729 F.2d tion on Ms. renders her an candidly Cir.1984). admit questions the swers to Ramos’s investiga focused their interrogation. that had product ted of custodiаl She Bengivenga and her friend on Ms. protection tion the was entitled therefore to suitcases that the when discovered agent ques the Miranda fоr Alice. Focus the ab bound questions Her answers to the tioned her. however, factors, sence of the other three production bag of her tiсket and interrogation render is “insufficient to gage suppressed must claim stubs Garcia, custodial.” Alvarado of her unconstitutional interro product case, the conclusion In this gation. We therefore REVERSE her con proba is that the officers unavoidable viction. appellant ble cause to arrest Judge, dissenting: interrogation in commenced. the trailer deference, respectfully I With I dissent. to arrest exists when “Probable cause requires conclude that the record cannot within the the facts and circumstances the district court’s factual that we reverse knowledge arresting suf- officer are did not determination cau- person to a of reasonable ficient to probable cause arrest have has or

tion bеlieve that an offense been to and a half to took a minute An- being committed.” United States having lied she had about determine that tone, 753 F.2d on the bus. It was entire- luggage checked a presents here twist on The situation view, my Ra- ly appropriate, in case, re- which ordinary probable cause pursue the an extra moment to mos to take adequacy police around the volves questioning the he had strongest clue knowledge a crime. Here border only for the destina- two bound crime was in no doubt smelled of tion shown committed; was being plausible proba- It is committing passengers were it. mind, ble, my for him to think that to sent had not to confirm that others cir- needed totality look at the We must town with the luggage to this small Id. Ramos knew that cumstances. it, claim or would through that confederates intent suitcases were checked might have passenger another to think that only two of to Alice. He believed that $56 bags by his association with the

covered to

purchasing a ticket another destination. dope smugglers

Apprehending is not an logical

easy game played by rules. frequently set task find

their best efforts thwarted when

make arrests based what courts later

say simply less than cause. Agent Ramos

cannot fault or the district holding the belief that I

court share— revealed,

until lie was a rea- probability

sonable existed the mari- *4 suitcases could

juana-laden the con-

trol of others. affirm,

Because would I dissent. RUIZ, ‍‌​‌‌​​​​​​​‌‌​​​​‌​​​‌​​‌‌​​‌​‌‌‌​‌‌‌​​​​‌​​​​​​‍al., Plaintiffs-Appellees,

David et LYNAUGH, Director,

James A. Interim Department Corrections,

Texas et

al., Defendants-Appellants. States Court of McCown,

F. Scott Hoyle Melinda Bo- zarth, Attys. Gen., Mattox, Asst. Atty. Jim Gen., Austin, Tex., for defendants-appel- lants. Turner,

William Bennett Turner & Bror- Francisco, Cal., by, Berger, San Joel Legal NAACP Defense & Educational Fund, Inc., York City, ‍‌​‌‌​​​​​​​‌‌​​​​‌​​​‌​​‌‌​​‌​‌‌‌​‌‌‌​​​​‌​​​​​​‍plaintiffs- New appellees.