Tuesday, February 12, 2008

Protective Sweep Creep: Search of Entire Auto Repair Shop OK After Box-Truck Full of Marijuana Tried to Leave Premises

United States v. Mata, No. 06-40957 (5th Cir. Feb. 11, 2008) (Jolly,* Clement, Owen)

That the Fifth Circuit would find a warrantless search permissible as a protective sweep isn't all that surprising, given its ever-expanding view of the circumstances justifying that particular exception to the Fourth Amendment's warrant requirement. What is interesting, though, is that at least one member of the court is apparently still troubled by the drift of the case law in this area. What's also intriguing, although not discussed in so many terms in the opinion, is the fact that undercover officers from the Pharr, Texas police department drove a big rig all the way to Chicago for a controlled delivery of marijuana, and that the whole affair resulted in a prosecution in the Southern District of Texas.

Our facts: acting on a report of suspicious behavior, ICE agents in Pharr found a Chicago-bound tractor-trailer which had marijuana concealed among a load of Mexican pottery. The agents decided to make a controlled delivery, so undercover officers from the Pharr police department drove the rig to Chicago.

After arriving at a Wal-Mart, the officers phoned some guy named "Jim," who told them to hang tight. Shortly thereafter, a couple of vehicles arrived and escorted the officers and the truck to Ray's Auto and Truck Repair, which Mata and his wife owned. "Undisputed testimony described Mata’s business as a small lot enclosed by a cyclone fence with barbed wire and a gate, secured by a lock and chain. The lot contained numerous parked automobiles and a brick building with a door and garage door large enough to accomodate trucks."

The undercovers officers boogied after helping Mata and some others unload the truck inside the garage. "By this time, approximately twenty-five ICE agents and local police surrounded and surveilled Mata’s garage. For approximately two hours, officers watched as numerous vehicles and unknown individuals came and went." Around 2:30 in the afternoon, officers saw a white box truck, which they figured just might have some marijuana in it, leave the garage.
[T]he police, fearing the large amount of marijuana could be lost, gave the “take down” signal, quickly blocked traffic, turned on their emergency lights, identified themselves as police, and ordered the individuals standing outside the gate to stop. As the police approached, at least two men fled down the street and two more fled to the rear of the lot. The ICE agents and police were able to detain these fleeing individuals and arrested 7-10 men in total.

One of the agents immediately ordered a "safety personnel sweep" of the garage, which turned up more drugs and some guns.

Mata was later convicted, following a jury trial somewhere in the Southern District of Texas, of conspiring to possess more than 1,000 kilos of marijuana. (He was acquitted of a 924(c) count. The district court dismissed two other counts---PWID and conspiracy to maintain a drug-involved premises---before trial, without prejudice to re-indictment in the District of Illinois.)

Mata appealed the district court's denial of his motion to suppress the drugs and guns found during the post-take-down sweep of his garage. But the court of appeals held that it was a lawful protective sweep. The departure of the white box truck created exigent circumstances justifying the officers' entry onto the premises, and the officers hadn't created the exigency by choosing to stop the truck at the gate before it left the property. The officers also had a reasonable, articulable suspicion that there might be dangerous folks on the scene because 1) the officers had made a controlled delivery of nearly 1,300 kilos of marijuana a couple of hours earlier, 2) people were coming and going during that time, so officers didn't know exactly how many were there at any given time, 3) the officers saw some people "conducting counter-surveillance" (i.e., "keeping an eye out for law enforcement"), and 4) the suspects scattered when the "take-down" signal was given, and two of them ran behind the building. More generally, the court concluded that "[t]his case is . . . similar to cases from [inside and] outside this circuit upholding a protective sweep incident to a raid on a distribution or manufacturing center for narcotics."

*Interestingly, the opinion notes that "Judge Jolly joins in the judgment only." There's no explanation given, but I suspect it's for reasons similar to those he gave in a concurring opinion in another protective-sweep case, United States v. Maldonado:
I concur because the majority opinion is not plainly inconsistent with our precedent. It does seem, however, that we are coming close to establishing a rule that any yard arrest involving a drug operation can justify a protective sweep of the residence, which would allow an intended exception to the Fourth Amendment to become the rule.

Might there be at least one sympathetic ear for an en banc petition?

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