UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60547
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAVIER FIGUEROA,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Mississippi
(1:96-CR-50-BrG)
November 5, 1998
Before REYNALDO GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Javier Figueroa appeals his convictions for conspiracy to
import cocaine into the United States and aiding and abetting the
importation of cocaine. We affirm.
PROCEDURAL HISTORY
Figueroa was indicted with three other persons for conspiracy
to import cocaine from Costa Rica into the United States and aiding
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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and abetting the importation of cocaine. One of his codefendants,
Martin Navarro, pleaded guilty prior to trial and testified for the
Government; a second, Alfren Quintero, was discharged after the
Government rested its case at trial; and the third, Mery Cardenas,
Figueroa’s companion when he was arrested, was dismissed after the
jury was unable to reach a verdict in her case.
Figueroa filed a pretrial motion to suppress evidence seized
from his person at the time of his arrest, that is, a sheet of
facsimile (“fax”) paper containing incriminating information. The
motion also sought to suppress a written confession he made to law
enforcement agents after his arrest. Following an evidentiary
hearing, the lower court denied the motion.
Figueroa was convicted on both counts and sentenced to 121
months imprisonment and five years supervised release on each count
to run concurrently.
FACTS
On Saturday, September 14, 1996, United States Customs agents
stationed in Gulfport, Mississippi, received information that a
Forest Line motor vessel carrying cocaine was due to arrive at the
Port of Pascagoula, Mississippi, on Monday, September 16, 1996.
The agents were informed that the cocaine would be under the
control of two crew members, “Marvin” and “Albert,” and that the
community of Gautier, Mississippi, and two local stores, K-Mart and
Hudson’s, had some part in the plan.
A Forest Line motor vessel named the Forest Link was in fact
due to arrive in Pascagoula from Costa Rica on September 16, 1996.
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The ship was two days late, but it finally arrived in Pascagoula at
5:30 a.m. on Wednesday, September 18, 1996. Customs agents boarded
the ship almost immediately and obtained a crew list. Martin
Navarro and Alfren Quintero, who the agents believed might be the
“Martin” and “Albert” referred to in their intelligence, were on
board the ship. Shortly thereafter, agents conducted a border
search of the ship and discovered twenty kilograms of cocaine, as
well as evidence linking Navarro and Quintero to the drugs.
Modesta McNeil, a security guard at the port, testified that
on September 16, 1996, the date the ship was originally scheduled
to dock in Pascagoula, Figueroa and codefendant Mery Cardenas drove
up to the guard shack. Figueroa got out of the car and inquired
about the Forest Link. She told him the ship had not arrived, and
he asked for a telephone number that he could call to find out if
the ship had come in. McNeil wrote down the guard shack telephone
number on a slip of paper and gave it to Figueroa. McNeil
testified that Figueroa had a Spanish accent and that she received
numerous phone calls from a man with a Spanish accent inquiring
about the Forest Link. The calls were unusual in that in the 15 or
16 years she had worked there, she had never received so many calls
in one day inquiring about a ship.
Angela Durden, another port security guard, also testified at
trial. Durden was on duty on September 18, 1996, the day that the
Forest Link arrived and was searched by the agents. On that day,
Cardenas came to the port in a car driven by a man who looked like
defendant Figueroa. They parked down the street instead of driving
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up to the guard shack. Cardenas got out of the car and asked if
she could get someone (who Durden understood was Cardenas’ husband)
off the ship. Figueroa drove up and spoke to Cardenas in a
language other than English. Cardenas then wrote “Samanta” and an
800 phone number on a slip of paper and asked the guard to give it
to “Marvin” and to let Marvin know that she had already made two
trips to the port and that she could not keep coming back to the
ship. Durden wrote “Marvin” on the bottom of the paper and wrote
Figueroa’s license plate number on the back as he drove away from
the shack. She also made a note on the log sheet with the names
“Doris, Marvin and Alfred,” based on her conversation with Cardenas
and turned it over to the custom agents.
The custom agents had learned earlier in the day that a
Hispanic male and/or female in a vehicle like Figueroa’s had
inquired about the ship on the day it was scheduled to arrive; they
also knew that the female had been asking for a crew member named
Marvin, claiming he was her husband. While Figueroa and Cardenas
were at the guard shack talking to Durden, the agents noticed
Figueroa’s vehicle and followed it when it left. As the agents
followed the vehicle in four unmarked cars, it abruptly pulled into
a gas station, turned around and headed in the opposite direction.
Figueroa then drove into a hospital parking lot, where he got out,
walked to the door of the hospital, stopped, and went back to his
vehicle. He then left the parking lot, drove a short distance,
turned around, went back to the parking lot and parked. The agents
pulled their cars in next to Figueroa’s and approached him.
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Figueroa got out of his car and walked toward the agents,
acting “very excited and aggressive.” Mery Cardenas also got out
of the car. Figueroa was asked to put his hands on the hood of the
car to calm him down and to allow the agents to get the situation
under control. He was patted down for weapons, but none were
found. An agent asked Figueroa for his identification and he
replied that his driver’s license was in “that pocket.” Based on
Figueroa’s hand movements, Agent Brown understood that the license
was in his back left pocket. Brown reached into that pocket and
removed a “handful of papers, cards,” including Figueroa’s driver’s
license.
Unsolicited by the agent, Figueroa explained that he was on
vacation, going from New York to Texas. The agent asked him what
he was doing in the Pascagoula area. He replied that he was there
to see the big ships, that he sent the lady accompanying him to the
guard shack to get permission to go in and see the big ships and
that he had a camera in his vehicle to take pictures of them.
Brown believed Figueroa was lying to him, because he had
information that Cardenas had inquired at the guard shack about a
crew member with the same name as the suspected drug smuggler,
rather than asking for tourist information about the ships as
Figueroa claimed. Cardenas made a separate statement to the
agents that essentially tracked Figueroa’s vacation story.
Figueroa and Cardenas both gave consent for the agents to search
their vehicle. During the search they discovered a handwritten
note with the words “guard shack” and two Pascagoula phone numbers.
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They also discovered motel receipts in the name of Jorge Estrada.
Agent Brown testified that at that point, he believed his original
reasonable suspicion had ripened into probable cause to believe
that Figueroa was involved in the scheme to import cocaine. During
the resulting search, which Agent Brown conducted prior to and
incident to the arrest, he discovered the fax in Figueroa’s right
front pocket.
After telling Figueroa that he believed that Figueroa was
involved with the cocaine discovered on the ship, Agent Brown
placed Figueroa under arrest and gave him Miranda warnings.
Figueroa began crying and gave a statement admitting that he had
been offered $20,000 to pick up the drugs and take them to New
Jersey, although he thought the package would contain marijuana
rather than cocaine. Figueroa later gave an inculpatory statement
in writing at the Customs Office after being advised of his rights
again.
MOTION TO SUPPRESS
Figueroa moved to suppress the fax found in his pocket as well
as his subsequent oral and written statements. On appeal, he
challenges the district court’s denial of that motion. “We review
findings of fact rendered after a suppression hearing for clear
error and conclusions of law de novo. We view the evidence in the
light most favorable to the party that prevailed -- the Government
here -- and consider both evidence offered at the suppression
hearing and admitted at trial.” United States v. Munoz, 150 F.3d
401, 411 (5th Cir. 1998)(citations omitted).
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The district court set out its reasons for denial orally in
the record. The district court held that the fax was seized in a
valid search incident to arrest and that probable cause existed for
that arrest. Further, the district court held that the statements
Figueroa gave subsequent to the arrest and Miranda warnings were
voluntary, and not the product of coercion, threats or promises.
We must determine whether the agents exceeded the permissible
parameters of the original stop, whether probable cause for arrest
had developed at the time Agent Brown reached into Figueroa’s
pocket and retrieved the fax and whether that retrieval was within
the bounds of a search incident to arrest.
The agents had the following information at the time of the
stop: cocaine had been found on board the Forest Link; a Hispanic
man and woman had inquired several times about the arrival of the
vessel; the woman had informed port security that she was trying to
contact her husband aboard the vessel, who she identified by the
same name as one of the suspects; Figueroa and Cardenas matched the
description of the Hispanic man and woman he parked his vehicle an
unusual distance from the security shack on the day of his arrest
while Cardenas talked to the guard and he drove evasively when
followed by unmarked police cars.
During the stop, it developed that Cardenas had used at least
three different names (Doris, Samanta and Mery) and that Figueroa
had registered in a hotel under the name Estrada. Further, they
told the agents they were sightseeing on vacation, contradicting
the story that Cardenas had told port security about attempting to
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contact her husband. The identity of Figueroa and Cardenas as the
Hispanic individuals who had been making inquiry earlier at the
port was confirmed by the slip of paper with “guard shack”
telephone numbers on it. At this point, the agents’ reasonable
suspicion was strengthened into probable cause. See United States
v. Espinoza-Seanez, 862 F.2d 526, 533 (5th Cir. 1988)(fact that
defendant lied to agent, was nervous and sweating profusely,
combined with reasonable suspicion the agents already had,
strengthened that suspicion into probable cause).
The fact that the formal arrest followed the search which
yielded the fax does not prevent it from being incident to the
arrest, so long as the fruits of the search incident to the arrest
are unnecessary to support probable cause for the arrest. Rawlings
v. Kentucky, 448 U.S. 98, 111, n.6 (1980). Here, the fax was not
necessary to provide the agents probable cause to arrest Figueroa.
We therefore agree with the district court that the challenged
search was a valid search incident to arrest.
On appeal, Figueroa does not dispute that the agents had
reasonable suspicion to support a Terry stop, or that asking for
identification, questions about destination and a patdown for
weapons were a legitimate part of such a stop. See Terry v. Ohio,
392 U.S. 1 (1968). Rather, Figueroa contends that the agent
exceeded the limits of a Terry stop when he reached into Figueroa’s
pocket and retrieved the papers containing the driver’s license and
that the subsequent discovery of the fax in Figueroa’s front pocket
was the “fruit of the illegal search” which had previously yielded
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the driver’s license. We reject this argument. In response to the
agent’s request for identification, Figueroa answered, “My driver’s
license is in that pocket.” His words were accompanied by a
gesture indicating which pocket it was in and acquiescence in the
officer’s retrieval of the license. Assuming the agent’s actions
can be correctly characterized as a warrantless search of
Figueroa’s pocket for a driver’s license, it was reasonable under
all the facts and circumstances, for the officer to believe that he
had Figueroa’s consent for such a limited search. See United
States v. Jaras, 86 F.3d 383 (5th Cir. 1996)(considering the
objective reasonableness of the officer’s belief concerning the
scope of the search to which the defendant consented in determining
the constitutionality of a warrantless search).
Moreover, it is not clear that finding the fax was the “fruit”
of the officer’s retrieval of the driver’s license. The license
was valid, confirmed the information Figueroa had given the agents
concerning his identity and did not contribute to the probable
cause which eventually resulted in his arrest.
Finally, Figueroa has pointed to nothing in the record and we
find nothing to indicate that the agents exceeded limits of time or
scope imposed by our jurisprudence on an investigative stop.
We therefore affirm the district court’s denial of Figueroa’s
motion to suppress.
SUFFICIENCY OF THE EVIDENCE
Figueroa contends that the evidence was insufficient to
support either count of conviction. We find these points of error
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to be without merit.
CONCLUSION
For the foregoing reasons, we AFFIRM Figueroa’s convictions.
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