834 F2d 47 United States v Cruz OpenJurist — Volkswagen 1302

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Volkswagen 1302

834 F2d 47 United States v. Cruz

CRUZ, Appellant.


No. 177, 87-1205.

United States of Appeals,

Second Circuit.

Sept. 29, 1987.

Decided 20, 1987.

Darrell L. Paster, New City, for appellant.

John J. Asst. U.S. Atty. District of New York, Brooklyn, New (Andrew J. Maloney, U.S. for the Eastern District of New York, V. Kirby, Asst. U.S. Eastern District of New York, New York, of counsel), for appellee.

is an appeal from a judgment of entered in the United States Court for the Eastern District of New Dearie, J. dated January 7, following a jury trial for to distribute cocaine, in violation of 21 Sec. 846 (1982). Cruz that the district court have granted his motion to certain post-arrest statements and found during a search of his following a de facto arrest probable cause. Cruz that his warrantless arrest and the warrantless search and seizure of his were in violation of his Fourth rights and the evidence should been suppressed as fruit of the tree. Wong Sun v. United 371 U.S. 471. 488, 83 407, 417, 9 L.Ed.2d 441 Because we conclude that was probable cause to arrest for drug conspiracy charges at the his truck was stopped on the New Jersey and that the subsequent search of vehicle was justified under the exception to the warrant requirement, see v. United States, 267 U.S. 45 S.Ct. 280, 69 L.Ed. 543 we affirm the judgment of conviction.

A. The Surveillance Effort

In August a Drug Enforcement Agency agent in Queens, New York was a man for suspected drug trafficking. The observed the subject of his investigation numbers on a pay telephone and then up, in such a manner as to suggest to the that the man was making phone to beepers. The agent testified in his experience, calling beepers is a common practice among dealers. A second man then up to the location under surveillance in a Volkswagen Beetle that was in condition and had New Jersey license The driver got out, briefly with the man who had been placing the calls, and then returned to his car and away. Shortly thereafter a man arrived at the scene and spoke for a few with the man who had been making the calls, and the two men exchanged packages. The concluded from these that some type of transaction had taken place, no arrests were made at time.

B. The Second Surveillance Effort

six weeks later, on September 23, the same DEA agent spotted a man a white Volkswagen Beetle was in immaculate condition with New license plates in Queens, New The agent concluded that vehicle was the same one that he had previously; he also believed the same person was driving the on both occasions, although he was not certain. He learned later day that the driver of the Volkswagen was Cruz, the brother of appellant Cruz. Based on the agent’s observations, he decided to conduct a of the driver of the Volkswagen with the of other DEA agents.

While the were conducting this surveillance, Cesar Cruz parked the Volkswagen outside of a in Queens, went inside and approximately thirty seconds carrying a very heavy which he placed in the trunk of the He then reentered the house, and a very short time emerged, this time with him several unassembled boxes which he also in the Volkswagen.

Cesar Cruz drove the Volkswagen to another in Queens, where he met several one of whom was later identified as the Oliverio Cruz. The group for several minutes and then Oliverio Cruz drove in a tractor trailer truck Florida license plates, and Cruz drove away in the Volkswagen. As the two vehicles travelled to Perth Amboy, New Jersey, exchanged positions in the lead. In Amboy, Cesar Cruz the Volkswagen inside an auto garage, and Oliverio Cruz the truck on the street by the garage.

The continued their surveillance at the repair garage for several During this time, the removed two long cylindrical from the trailer portion of the and carried them into the The men also loaded a plywood into the trailer, and then removed the panel, before later carried it again the trailer. Four heavy boxes were loaded the trailer. Throughout this the agents heard hammering and noises, sounds associated construction work. The agents these activities concluded the men were building a hiding inside the trailer for the four boxes.

Participants in the activities at the auto shop twice left the On one occasion, Gustavo Fernando drove to a home in Woodbridge, New He entered the house and then out in approximately ten minutes carrying a brown grocery bag, the top of was rolled over. He then back to the auto garage where the others were the lights on the truck. After tests, Cesar, Oliverio and Fernando Cruz travelled in the to a nearby auto parts When they came out of the Oliverio Cruz was carrying a paper bag. They drove to the same house in New Jersey where Gustavo Cruz had previously been and inside the house for a few minutes returning to the auto repair While the men were back at the area, the lights on the truck checked again. After Cesar Cruz drove the to Queens, New York, and Oliverio drove the tractor trailer south on the New Jersey Turnpike. vehicles were followed by DEA

After Oliverio Cruz had for about a mile on the New Jersey he pulled the truck over to the of the highway by an overpass and turned off the lights. He then got out of the truck and next to the cab of the truck and watched traffic for approximately five The agents interpreted Cruz’s as an effort to see if he was being followed. then returned to his truck, and south on the highway at approximately miles per hour.

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The agents New Jersey state troopers to them in stopping Cruz’s Two marked state police and one unmarked police van responded to request. The state troopers their roof lights and to signal Cruz to pull to the side of the highway. Cruz, who was in the right lane of the turnpike, did not pull his truck over to the shoulder, but instead veered the middle lane of the highway, in one of the police cars was travelling. The then positioned their cars in such a manner as to Cruz’s truck to the side of the

When the truck was on the shoulder of the uniformed state police approached Cruz. It quickly apparent that Cruz did not English and an officer who spoke was called upon to translate. The asked Cruz for his license and which Cruz supplied. The then decided that should move from the of the interstate highway to a safer They decided to move all of the to a New Jersey State Department of (DOT) garage area a half mile south of the stop had occurred. Cruz was down, handcuffed, and placed in the seat of a police cruiser. An who was an experienced operator of tractor trucks entered the cab of Cruz’s in order to move the truck to the DOT area. As he entered the cab, he that there was an open bag on the front seat of the cab. He see that there were two in the flight bag which were in a type of tape that in his is commonly used to package

After arrival at the DOT garage Cruz remained handcuffed in the seat of the cruiser. The troopers several summonses to Cruz for traffic offenses including unsafe lane changing and Approximately ten minutes later, a initiated a conversation with concerning whether Cruz consent to the search of his truck. a few minutes Cruz signed a DEA consent form that was in Spanish, agreeing to the search of his

The search of the truck was not conducted after the consent was obtained, because the DEA agents were the arrival of their supervisor. about an hour, the officers at the DOT learned that Cesar had been arrested in Queens and a of cocaine and money had been in connection with the arrest. Cruz then was told he was under arrest. The officers the truck and found four boxes hidden behind a wall in the truck. The boxes $3,261,128 in currency of varying denominations. Approximately $70,000 in was found in the packages wrapped in that were in the cab of Cruz’s

After Cruz was placed arrest, an agent read his Miranda rights in Spanish. then admitted that he that there was money in the but said he did not know how much. He stated that he had been to drive the truck to Miami and it in an unspecified location where it be picked up by someone and later to Cruz.

C. The District Court Opinion

The court’s denial of Cruz’s to suppress the evidence was not error if the arrest of Cruz and the warrantless of his vehicle were proper. A arrest is justified if the police probable cause when the is put under arrest to believe an offense has been or is being United States v. Fox, 788 905. 907 (2d Cir.1986). Although the court concluded that the had probable cause to arrest on drug charges when the observed the packages wrapped in in the cab of the truck, we conclude that in of the district court’s findings of there was already probable to arrest Cruz when his was pulled over to the shoulder of the New Turnpike.

In order to establish cause, it is not necessary to make a facie showing of criminal or to demonstrate that it is more than not that a crime has or is being committed. United v. Travisano, 724 F.2d 341. 346 (2d Rather, probable cause for exists where ‘the and circumstances within their officers’] knowledge and of which had reasonably trustworthy information sufficient in themselves to warrant a man of caution in the belief that’ an has been or is being committed. v. United States, 338 U.S. 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) Carroll v. United States, 267 at 162, 45 S.Ct. at 288). cause is a fluid concept—turning on the of probabilities in particular factual readily, or even usefully, to a neat set of legal rules. v. Gates, 462 U.S. 213. 103 S.Ct. 2317, 2329, 76 527 (1983). It ‘must be seen and not in terms of library analysis by but as understood by those versed in the of law enforcement.’ Texas v. Brown, 460 730. 742, 103 S.Ct. 1543, 75 L.Ed.2d 502 (1983) United States v. Cortez, 449 411. 418, 101 S.Ct. 695, 66 L.Ed.2d 621 (1981)). a suspect’s actions that a consciousness of wrongdoing can contribute to a of probable cause. See United v. Vasquez, 638 F.2d 507. (2d Cir.1980) (holding that was probable cause for arrest officers knew defendants had been with suspected dealer, officers saw defendants’ car maneuvered so as to indicate that had been detected, and when approached car, defendant to place package under car and pulled the package back the car and closed and locked the car door), denied, 454 U.S. 847, 102 165, 70 L.Ed.2d 135 (1981).

Applying these standards to the findings made by the district we conclude that the law enforcement had probable cause to arrest at the time they stopped his on the New Jersey Turnpike. The determination of probable cause to arrest can be based on the collective knowledge of all of the involved in the surveillance efforts the various law enforcement officers in investigation were in communication each other. See United v. Tussa, 816 F.2d 58. 63 (2d Cir.1987). The that the agents had available to at the time of arrest included the of the prior surveillance efforts of the DEA which suggested that Cruz was involved with activity. In addition, the agents had the loading of the four heavy into the trailer portion of the trailer truck from the extensive construction activity on the trailer that led the agents to that a hiding place for the was being prepared; the suspects’ with ensuring that the of the truck were functioning thus lessening the chances of stopped by the police; Cruz’s behavior in stopping his truck one after he had entered the New Jersey then turning off the truck’s and standing by the cab of his truck for several while he intently watched traffic; and Cruz’s evasive when the police attempted to his truck. Although no single was sufficient by itself to establish cause, the totality of the circumstances as by experienced drug enforcement was sufficient to support Cruz’s at the time the truck was stopped. See v. Gates, 462 U.S. at 238, 103 at 2327 (noting that a of the circumstances analysis has traditionally applied when making cause determinations).

The warrantless of Cruz’s truck was also under the automobile exception to the requirement. This exception to the Amendment’s warrant requirement was in Carroll, where the Supreme held that when officers have probable to believe that a vehicle contraband, the officers can conduct a search of the automobile without the Fourth Amendment. 267 U.S. at 45 S.Ct. at 283. This also applies to vehicles than automobiles. See, United States v. Johns, 469 478. 105 S.Ct. 881, 83 890 (1985) (upholding warrantless of two pickup trucks). When officers have probable to search an entire vehicle, may conduct a warrantless search of part of the vehicle and its contents, all containers and packages in the vehicle. States v. Ross, 456 U.S. 821 n. 28, 102 S.Ct. 2157, 2171 n. 28, 72 572 (1982). A warrantless search of truck was therefore proper the officers had probable cause to that it contained contraband in of the construction that they had the suspects perform on the trailer. The two hour delay before the search was not unreasonable and does not the result. There is no requirement the warrantless search of a vehicle contemporaneously with its lawful United States v. Johns, 469 at 484, 105 S.Ct. 885 (holding when officers had probable to search vehicles for contraband, a search three days the trucks had been seized of unloaded from the vehicles was

In light of our conclusion that the law agents had probable cause to Cruz for drug conspiracy when his truck was stopped on the and that the subsequent search of his was valid under the automobile to the warrant requirement, we need not whether Cruz’s detention his truck was stopped at some turned into a de facto or whether his consent to search the was voluntary. In addition, because we that Cruz’s arrest was we need not consider appellant’s that his post-arrest statements be suppressed as the fruits of an unlawful

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Volkswagen 1302
Volkswagen 1302
Volkswagen 1302
Volkswagen 1302
Volkswagen 1302

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