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United States v. Escamilla

United States Court of Appeals, Fifth Circuit

March 29, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
MIGUEL ANGEL ESCAMILLA, JR., Defendant-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before PRADO, HIGGINSON, and COSTA, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge:

         Miguel Escamilla appeals his convictions for conspiring to possess and possessing with the intent to distribute marijuana and heroin. Pressing five issues, Escamilla argues that the district court erroneously failed to suppress incriminating evidence that government agents obtained from an allegedly unconstitutional stop and ultimate arrest. We hold that much of the agents' conduct was reasonable and therefore constitutional. We also hold, however, that the district court erred by admitting evidence obtained from an unconstitutional, post-arrest search of a cell phone in Escamilla's possession. We nonetheless affirm the judgment of the district court because the error was harmless.


         On December 4, 2014, Border Patrol agents Julio Garcia and David Freed patrolled the privately owned OKM Ranch-approximately thirty miles from the Mexican border-in Laredo, Texas. According to the agents, smugglers "common[ly]" cut through the ranch to avoid two Border Patrol checkpoints at either end of the property. The "legitimate traffic" through the ranch is primarily oil industry workers.

         Around 6:30 a.m., the agents, driving southbound through the ranch, saw two similar white trucks driving in the opposite direction. The first truck, a Ford F-250, and the second truck, a Ford F-150, appeared to travel together or "in tandem." A few minutes later, Border Patrol's "drawbridge activation, " a camera-like sensor designed to detect illegal entry into the ranch, alerted all nearby agents that a vehicle had entered the ranch "at an undisclosed location . . . where [a vehicle] should not be." Realizing that the trucks they passed resembled the vehicle in the alert, the agents turned around to investigate further.

         Upon encountering the trucks again, the agents noticed that they were still traveling in tandem. The agents recognized this manner of driving as common among smugglers: one vehicle is the "load vehicle" carrying contraband, while the other is "a scout or disturbance" vehicle. The trucks were also still traveling north, heading to exit the ranch and circumvent Border Patrol's checkpoints. But at 6:30 in the morning, oilfield workers are usually entering-not leaving-the ranch for work.

         The agents focused on the F-150, noticing that it did not bear the customary markings of any oil company, such as a fleet number or work badge displayed from the rear view mirror. Rather, there was a personal decal on its back window-unusual for a company truck. The F-150 also had temporary "paper tags, " which are uncommon among legitimate oilfield traffic, but common among smugglers. As the agents followed the F-150, they checked its registration, which revealed a woman's residential address. In the agents' experience, company vehicles are typically registered to a business. Agent Garcia and Agent Freed thought that the F-150 was likely a "clone"-an everyday vehicle intended to resemble a legitimate oilfield truck, but carrying undocumented immigrants or drugs from the border.

         When the agents activated their lights to stop the F-150, the F-250 sped away, leading them to believe it was the "load vehicle" carrying contraband. Agent Freed "called in" the F-250, asking other nearby agents to track it down.

         Upon stopping the F-150, the agents noticed that its exterior was unusually clean, unlike typical oilfield trucks. As Agent Garcia approached the F-150, he saw that it had no tools or other objects that work trucks usually carry. The truck's fuel cell also looked out of place and lacked a fuel pump, rendering it inoperable. When Agent Garcia asked the driver-Escamilla- what he was doing on the ranch, he seemed "nervous" and "couldn't give . . . a definitive answer." Escamilla said he worked for "Valdez" but did not explain what type of work he did, and Agent Garcia did not recognize the name. Agent Freed then checked Escamilla's license and discovered "a narcotics case" on his record.

         As Agent Garcia continued talking to Escamilla, he noticed the interior of the F-150 was also unusually clean. Agent Garcia also noticed that Escamilla wore a shirt that looked similar to a work uniform but lacked company logos or decals. Escamilla then agreed to let Agent Garcia and Agent Freed search the F-150.[1] During the search, Agent Garcia opened the out-of-place fuel cell to find that it was empty and appeared modified or "hollowed out." The agents knew that smugglers often carry drugs in hollowed-out fuel cells. The agents also saw "fake shirts" and "brand new [generic] vests, " which they thought oilfield workers would not usually bring to work. These items corroborated their suspicion that the F-150 was a "clone."

         After searching the truck, Agent Garcia asked to search Escamilla's phone. Specifically, he asked, "do you mind if I look through your phone?[, ]" and Escamilla silently handed it over. The phone was a simple flip phone-a "burner" in Agent Garcia's opinion-containing only three numbers, two of which were saved under a single letter, rather than a proper name. After searching the phone, Agent Garcia handed it back to Escamilla because, in Agent Garcia's words, he was "done with it."

         About ten minutes after stopping Escamilla, Agent Garcia asked if he would allow a Border Patrol dog to sniff his vehicle.[2] When Escamilla consented, Agent Garcia told him to drive approximately two minutes to the ranch's "main gate, " where they waited another ten minutes for the dog to arrive. When the dog sniffed the F-150, its handler reported that the dog "alert[ed], but nothing solid." In Agent Garcia's view, this meant "something may have been in [the truck] at some point in time previously [or] recently."

         At this point, Agent Garcia called his superior to report Escamilla's behavior. As they spoke, Agent Garcia and Agent Freed simultaneously overheard radio traffic about the F-250. Border Patrol agent Brian Jennings had followed the F-250 out of the OKM Ranch. The F-250 tried to speed away, "ramming [the] gate" at a nearby ranch and "taking out a couple [of] deer-proof fences" before crashing. By the time Agent Jennings reached the wreck, the driver had fled, leaving marijuana and black tar heroin behind. When Agent Jennings reported the drug seizure over his radio-about twenty-four minutes after Escamilla's initial stop-Agent Garcia and Agent Freed arrested Escamilla based on his connection to the F-250.

         The agents drove Escamilla to a nearby Border Patrol station where they met DEA Agent Jason Antonelli. There, agents took "all of [Escamilla's] personal property . . . from him" and "turned [it] over to the DEA." According to Agent Antonelli, Agent Garcia and Agent Freed told him that Escamilla had "verbal[ly] consent[ed]" to a search of his phone. The Border Patrol agents also gave Agent Antonelli a second phone, broken in half but otherwise identical to the one taken from Escamilla, that Agent Brian Jennings recovered from the wrecked F-250. Agent Antonelli looked through both phones to find their contact numbers.

         Agent Antonelli then told Escamilla that he was going to jail and asked him to claim his property from the items Border Patrol agents had taken from him. Escamilla claimed his driver's license, "various bead necklaces, " and some change. He did not claim the phone that the Border Patrol agents searched at the OKM Ranch and took from him at the station. When Agent Antonelli's partner asked about it, Escamilla said the phone wasn't his, but that he had used it to call his girlfriend.

         The next day, December 5, Agent Antonelli used the contact numbers he discovered from both phones to subpoena their accompanying records from AT&T. AT&T's records revealed that whoever used the two phones called each other 196 times between November 20 and December 4, the day of Escamilla's arrest. The phones texted 29 times during the same period. On December 2, the phone recovered from Escamilla texted a third number to the broken phone from the F-250, and the user of the broken phone called that number on December 4, forming "a triangle connection" among the three devices.

         On December 9, Agent Antonelli used a forensic examination program called "Cellebrite" to download any contacts, pictures, or videos from both phones. The Cellebrite program also confirmed the phones' contact numbers, which Agent Antonelli learned from his manual search of the phones five days earlier. For the manual search on December 5 and the Cellebrite search on December 9, Agent Antonelli relied on Escamilla's consent given during the Border Patrol agents' stop on December 4. He never requested a search warrant.

         In his resulting prosecution for drug possession and conspiracy, Escamilla moved to suppress the phone that agents recovered from him, its contact number, evidence of calls or texts, and any other "digital data" stored on the phone. After a two-day suppression hearing, the district court determined that the Border Patrol agents lawfully stopped Escamilla. The district court also held that, during the stop, Escamilla voluntarily consented to a search of the phone in his possession, which encompassed Agent Antonelli's manual search at the station, and that Escamilla had abandoned any expectation of privacy in the phone when he disclaimed ownership of it, which justified Agent Antonelli's Cellebrite search. A jury ...

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