United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS 19, 2007
July
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-50783
UNITED STATES OF AMERICA
Plaintiff–Appellee
v.
RAFAEL JESUS IBARRA
Defendant–Appellant
Appeal from the United States District Court
for the Western District of Texas
Before KING, DeMOSS, and OWEN, Circuit Judges.
DeMOSS, Circuit Judge:
Rafael Jesus Ibarra appeals his conviction for possession with intent to
distribute over five kilograms of cocaine. Ibarra contends that the district court
erred by (1) failing to suppress evidence seized after a traffic stop, (2) refusing
to reveal the identity of a confidential informant, and (3) allowing a DEA agent
to testify during trial that in his opinion, no drug trafficking organization would
entrust a large shipment of cocaine to a driver without knowledge of what he
was transporting. For the following reasons, we AFFIRM the rulings of the
district court on the first two issues, but we VACATE the conviction and
REMAND for new trial because the admission of the DEA agent’s testimony was
not harmless error.
No. 06-50783
I.
On October 5, 2005, DEA Agent Smith received a tip from a confidential
informant that a particular tractor-trailer was transporting narcotics. The
tractor-trailer was discovered at a Freightliner facility in Odessa, Texas, where
the tractor was receiving repairs. With the consent of the management at the
Freightliner facility, Agent Smith set up surveillance on both the tractor and the
unhitched trailer. A canine unit was brought in to sniff the perimeter of the
trailer and the dog positively alerted for the presence of narcotics. The trailer
was not searched at that time but remained under surveillance.
The next day, a new tractor arrived to pick up the subject trailer. The
surveillance team allowed the new tractor to drive out of the Freightliner facility
with the trailer in tow. Agent Smith informed Lieutenant Rawls of the Texas
Department of Public Safety that a tractor-trailer carrying a load of narcotics
would be traveling on the highway. The DPS was asked to monitor the vehicle
after it left the Freightliner facility.
Trooper McGuarit of DPS received the call from Lieutenant Rawls to be
on the lookout for the subject trailer. He was provided a license plate number
and description of the trailer's logo. McGuarit was instructed to pull the truck
over if the driver violated any traffic laws. He was also instructed that if he
developed reasonable suspicion of criminal activity, he was to try to obtain
consent to search. McGuarit located the vehicle on Interstate 20 and stopped the
vehicle after determining that it was speeding and that its right rear mud flap
was not rigid as required by law.
The driver of the tractor-trailer was Ibarra. McGuarit requested
documentation for the load and asked Ibarra and the passenger, Andres
Anzaldo-Diaz, questions about the load and their travel route. McGuairt later
testified at trial that he observed numerous indicators throughout the traffic
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No. 06-50783
stop that led him to believe that Ibarra and Diaz were involved in some type of
illegal activity. McGuairt radioed for a canine unit to be sent. After further
questioning, McGuairt explained to Ibarra that he was writing a warning for the
speeding and mud flap violations, but that he was issuing a citation for an
expired insurance card. McGuairt returned all of Ibarra's documentation, and
then asked if he could search the trailer. Ibarra consented.
The canine unit that arrived at the scene alerted to the presence of
narcotics. The trailer was taken to a secured area and searched. Two hundred
and sixty-four packages of cocaine were discovered concealed within eighteen
frozen, shrink-wrapped boxes.1 Ibarra was arrested and charged with possession
with intent to distribute five or more kilograms of cocaine in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A). The net weight of the cocaine was 264.3
kilograms, and at trial, DEA Agent Friday testified that this amount of cocaine
would be worth approximately $4 million.
Ibarra’s sole defense was that he was unaware that some of the boxes in
the trailer contained narcotics, therefore, the main issue at trial was proving
that Ibarra knowingly transported the cocaine. Ibarra had told Trooper
McGuairt during the traffic stop that he was carrying pork neck bones from a
company named Brawley Beef and that he had been present when the truck was
loaded in Brawley, California. Ibarra produced a bill of lading that confirmed his
story. At trial, the Government’s case in chief focused on disproving this
statement by showing that Brawley Beef did not sell pork products and by
tracing the origin of one of the boxes containing cocaine to show that the box was
loaded in Phoenix, Arizona, not Brawley, California as Ibarra had claimed. The
Government’s other evidence consisted of (1) multiple bills of lading that the
Government claimed to be false, (2) testimony from Trooper McGuarit as to
1
The boxes with the cocaine were found among approximately 800 boxes that were all
identical in appearance.
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No. 06-50783
Ibarra’s behavior during the traffic stop that he believed to be suspicious, (3) a
video recording of the traffic stop, and (4) DEA Agent Friday’s testimony that in
his experience he had never seen a drug trafficking organization entrust a
shipment of narcotics of that size to a courier without the courier knowing that
he was carrying something illegal.
Prior to trial, the district court held evidentiary hearings on Ibarra's
motion to suppress evidence and motion to reveal the identity of the confidential
informant. Both motions were denied. The court also denied Ibarra's pre-trial
motion in limine to exclude the testimony of Agent Friday. After the jury trial,
Ibarra was found guilty as charged. Ibarra filed a motion for judgment of
acquittal, which the court denied. The court sentenced Ibarra to 235 months
imprisonment.2 Ibarra timely appeals to this Court.
II.
A. Motion to Suppress Evidence
Ibarra argues on appeal that the search of the trailer on Interstate 20 was
not supported by probable cause or valid consent. Therefore, Ibarra believes the
court erred by denying his motion to suppress evidence seized from the trailer.
We review the district court's factual findings for clear error and its legal
conclusions de novo. United States v. Runyan, 275 F.3d 449, 456 (5th Cir. 2001).
For our review, we may consider all of the evidence presented at trial, not just
that presented before the ruling on the suppression motion, in the light most
favorable to the prevailing party, which in this case is the Government. See id.
The district court held that probable cause was lawfully established at the
Freightliner facility at the time the first police dog alerted to the presence of
narcotics within the trailer. The court also concluded that after the stop on
Interstate 20, probable cause still existed even though Trooper McGuairt did not
2
The Guideline range was 235-293 months imprisonment.
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No. 06-50783
have actual knowledge of all of the details, based on the "collective knowledge"
doctrine. Under the collective knowledge doctrine, it is not necessary for the
arresting officer to know all of the facts amounting to probable cause, as long as
there is some degree of communication between the arresting officer and an
officer who has knowledge of all the necessary facts. United States v. Kye Soo
Lee, 962 F.2d 430, 435 (5th Cir. 1992).
Ibarra argues the court erred in applying the collective knowledge doctrine
because the Government conducted an illegal search at the Freightliner facility,
and therefore any information obtained from that search was tainted and could
not be used as probable cause for the stop on Interstate 20. We agree with the
district court that probable cause was properly established at the Freightliner
facility. The agents received permission from the management at Freightliner
to enter and use the premises to set up surveillance on the particular tractor and
trailer. Furthermore, it is firmly established that the dog sniff of the exterior of
the trailer is not a “search” within the meaning of the Fourth Amendment. See
United States v. Place, 462 U.S. 696, 707 (1983); United States v. Seals, 987 F.2d
1102, 1106 (5th Cir. 1993).
Agent Smith knew all of the facts giving rise to the probable cause to
search the trailer, and there was communication between Agent Smith,
Lieutenant Rawls, and Trooper McGuarit regarding the investigation of this
trailer. Therefore, Agent Smith’s knowledge of probable cause can be imputed
to Trooper McGuarit under the collective knowledge doctrine, see Kye Soo Lee,
962 F.2d at 435, and because the trailer was in transit at the time, no warrant
was necessary, see California v. Carney, 471 U.S. 386, 390 (1985).3 Because we
3
Ibarra alternatively argues that a warrant was necessary to search the interior of the
trailer because at the time the first canine unit alerted to narcotics, the trailer was unhitched
from the tractor and not “readily mobile.” See Carney, 471 U.S. at 392-93 (discussing that the
automobile exception applies to vehicles that are “readily mobile”). We do not need to reach
this issue in this case, however, because even if no exigent circumstances existed while the
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No. 06-50783
hold that Trooper McGuarit had probable cause and exigent circumstances to
search the vehicle without a warrant, we do not need to analyze whether, in the
alternative, Ibarra’s consent to search was voluntarily given. The order of the
district court denying Ibarra’s motion to suppress is AFFIRMED.
B. Motion to Reveal the Identity of the Confidential Informant
Ibarra next appeals the denial of his motion to disclose the identity of the
informant who alerted authorities that the tractor-trailer at the Freightliner
facility contained a large quantity of drugs. Ibarra believes that this information
would have aided him in his defense by providing a witness who could confirm
that Ibarra had no knowledge of the drugs.
A district court's decision to grant or deny disclosure of an informant's
identity is reviewed for an abuse of discretion. United States v. De Los Santos,
810 F.2d 1326, 1332 (5th Cir. 1987). This Court uses a three factor test to
determine whether the identity of an informant should be revealed: (1) the level
of the informant's activity; (2) the helpfulness of the disclosure to the asserted
defense; and (3) the Government's interest in nondisclosure. Id. at 1331.
The court held an in camera hearing regarding the informant, and prior
to the hearing, Ibarra's counsel met with the district judge to discuss Ibarra's
theory of the case so that the court could determine whether there was any
information of value to the defense. After the hearing, the court concluded (1) the
confidential informant in this case was a mere tipster and not involved in the
activities leading up to Ibarra’s arrest; (2) there was no information provided by
trailer was parked at the Freightliner facility, law enforcement are not required to obtain a
warrant as soon as it is practicable to do so. United States v. Carillo-Morales, 27 F.3d 1054,
1063 (5th Cir. 1994). The mere fact that the agents did not conduct the search while the trailer
was parked at Freightliner did not extinguish the existence of probable cause to search the
trailer after it left. At the time the tractor-trailer was stopped by Trooper McGuarit, the trailer
squarely fell within the automobile exception to the warrant requirement. We have held that
the decision to not obtain a warrant does not automatically preclude law enforcement from
relying on exigent circumstances that arises later, even if the exigent circumstances were
foreseeable. United States v. Webster, 750 F.2d 307, 327 (5th Cir. 1984).
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No. 06-50783
the confidential informant that would aid Ibarra in his defenses; and (3) the
Government had a substantial interest in nondisclosure because there could be
a "real risk" to the safety of the informant and his family and because disclosure
could also jeopardize other ongoing criminal investigations.
After reviewing the transcripts of the in camera hearing, we find that the
district court properly applied the three-factor test and did not abuse its
discretion in denying the motion to reveal the confidential informant’s identity.
This order is AFFIRMED.
C. Expert Testimony as to a Drug Courier’s Knowledge
Over Ibarra's objection, the district court allowed DEA Agent Friday to
testify that in his experience he had never seen a courier entrusted with an
amount of cocaine of that size (worth approximately $4 million) without the
courier knowing that he was carrying something illegal. Ibarra appeals.
A district court's decision to admit or exclude evidence is reviewed for
abuse of discretion. United States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th Cir.
2002). Any error in admitting evidence is subject to harmless error review.
United States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992). Federal Rule of
Evidence 704(b) prohibits an expert from stating an opinion as to whether the
defendant had the requisite state of mind for the crime charged. A jury may
reasonably infer that a large quantity of drugs would not be entrusted to a
courier without his knowledge, see United States v. Garcia-Flores, 246 F.3d 451,
455 (5th Cir. 2001), however, it is not proper for an expert to testify as to this
ultimate issue, see United States v. Cuellar, 478 F.3d 282, 295 (5th Cir. 2007) (en
banc).
The Government concedes that the admission of this testimony was an
abuse of discretion, however, the Government submits that the error was
harmless. Under the harmless error standard, reversal is required if there is "a
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No. 06-50783
reasonable possibility that the improperly admitted evidence contributed to the
conviction." Williams, 957 F.2d at 1242.
In this case, the Government did not have any direct evidence linking
Ibarra to the cocaine discovered in the trailer. The drugs were concealed, and
therefore it was essential for the Government to prove that Ibarra knowingly
transported the drugs. See United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th
Cir. 1990) (holding that when drugs are hidden, additional evidence indicating
guilty knowledge is required). Agent Friday’s testimony that in his opinion and
experience a courier would have knowledge of the drugs was improper testimony
that went directly to the ultimate issue to be determined by the jury. In addition,
Agent Friday was the last witness heard by the jury, and the testimony was
referenced again in closing statements. While it may have been possible for the
jury to convict Ibarra beyond a reasonable doubt if the improper testimony had
not been admitted, we feel that there is a “reasonable possibility” that Agent
Friday’s testimony “contributed to the conviction.” Williams, 957 F.2d at 1242.
Therefore we are not convinced that this error was harmless. The conviction is
VACATED and the case REMANDED for new trial.
III.
The orders of the court denying Ibarra’s motion to suppress evidence and
motion to reveal the identity of the confidential informant are AFFIRMED. The
conviction of guilt is VACATED and the case REMANDED for new trial. All
other matters raised on appeal we do not address in light of the fact that we are
remanding for new trial.
8