Petition — United States v. Garcia

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82-1549 MAR 19 1963

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In the Supreme Court of the Anited States

OCTOBER TERM, 1982

UNITED STATES OF AMERICA, PETITIONER

Vv.

VICTOR DOMINGO GARCIA, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CiRCUIT

REx E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

KATHRYN A. OBERLY

Assistant to the Solicitor General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the Fourth Amendment exclusionary

rule may be invoked in a federal criminal prosecution to

suppress the evidentiary fruits of investigative stops

and ensuing searches that met the constitutional

standards of reasonable suspicion and probable cause

but were technically illegal under state law because the

arresting officers—state game wardens—lacked statu-

tory authority to make arrests for non-game law viola-

tions occurring outside of state parks.

2. Whether, assuming it is sometimes appropriate to

apply the exclusionary rule on the basis of the illegality

of a stop under state law, the evidentiary fruits of the

stops in this case nevertheless should be admissible be-

cause the arresting officers reasonably believed that

they were acting within the scope of their authority.

3. Whether the application of a “reasonable mistake”

exception to the exclusionary rule in a federal criminal

proceeding is in any way dependent on state rules of

evidence or is instead solely a matter of federal law.

PARTIES TO THE PROCEEDING

In addition to the parties shown by the caption of this

case, Ruben Barrera-Saenz and Adan Montolla Mungia

were appellants below and are respondents here.

(1)

TABLE OF CONTENTS

Page

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RPT OPE TEES eT OEE Te PEP Te l

DM Tchiccchieesadkasenekeonseeweesene 2

Reasons for granting the petition.............. i)

Sos sbabdaedecensseedsacdeeeddacs 24

eh 05655 050660000400 660686060 REO la

TEs .6606 bh 0000n0eheeessedeearsexeeen 18a

ee rrTTerrrerrrrerr Tr rere 19a

EB PPSTUTUPTrreerreeeeerer eer cree 20a

TABLE OF AUTHORITIES

Cases:

Alderman v. United States, 394 U.S. 165... 13-14

Christopher v. State, 639 S.W.2d 932 .... 8, 9, 19

Elkins v. United States, 364 U.S. 206 ...8, 11, 18

16, 17, 18

Johnson v, United States, 333 U.S. 10..... 17, 18

Ker v. California, 374 U.S. 28............ 17, 18

McNabb vy. United States, 318 U.S. 332.... 23

Miller v. United States, 357 U.S. 301...... 17, 18

Stone v. Powell, 428 U.S. 465 ............ 12, 13

Terry v. Ohio, 392 U.S. 1 ...... cece ce eees 17

United States v. Alberty, 448 F.2d 706 .... 17

United States v. Brignoni-Ponce, 422 U.S.

MP ss kbenesxeeoson60asasenenesesaseess 14

United States v. Burke, 517 F.2d 377...... 16

United States v. Caceres, 440 U.S. 741 .... 13

United States v. Calandra, 414 U.S. 338... 13

United States v. Di Re, 332 U.S. 581 ...11, 17, 18

United States v. Dudek, 530 F.2d 684 ..... 16

(111)

Cases—Continued Page

United States v. Dunnings, 425 F.2d 836,

cert. denied, 397 U.S. 1002 ............. 16

United States v. Gitcho, 601 F.2d 369 ..... 16

United States v. Harrington, 681 F.2d 612 . 15, 16

United States v. Hensel, No. 81-1538 (1st

oo MS errr reer ree 13

United States v. Janis, 428 U.S 433....... 13

United States v. Johnson, 641 F.2d 652.... 15

United States v. Miller, 452 F.2d 731, cert.

Ge, GE Ut: Sas cbc a weedenésceas 17

United States v. Pennington, 635 F.2d

1387, cert. denied, 451 U.S. 9388......... 16

United States v. Porter, No. 81-5617 (6th

GC Bee es ED cue busececutedeeneaes 17

United States v. Soto-Soto, 598 F.2d 545... 15

United States v. Vasser, 648 F.2d 507, cert.

RR er rirre 15, 16

United States v. Watson, 423 U.S. 411 .... 17

United States vy. Williams, 622 F.2d 830,

cert. denied, 449 U.S. 1127 .........000. 7, 20

Weeks v. United States, 232 U.S. 388...... 12

Constitution, statutes and rules:

U.S. Const. Amend. IV ......ccece- 9, 10, 11, 12

13, 14, 15, 16

See eS sk aaet gens uewnxa ae 13

Be AE, RED Soo kactearavnssa cence 2

er re er abe aber 2

Er APE, GG Ro bcc oupelwad-cu-< kcdunie oo 23

Tex. Crim. Proc. Code Ann. (Vernon 1977 &

1979):

pA Ry RSPR al ere Ren ar eee 7

Constitution, statutes and rules—

Continued Page

PD Gos Gears sec eeree bhede's ll

DORA ete ve vedeceséebevd eens 7, 8,19

RP ee 22

Tex. Rev. Civ. Stat. Ann. art. 6701d § 153

PE EN we vc db cdsecgékiuessaaenae i)

A Ba Re AR Se rere 15, 16

Fed. R. Evid.:

reer re 21, 22, 23

cea SORE es sau eat aoa. 21

Miscellaneous:

H. R. Rep. No. 93-650, 93d Cong., Ist Sess.

Pnisisistudnas eh cauheesee bus da ener 23

1 W. LaFave, Search and Seizure, A Trea-

tise on the Fourth Amendment (1978).... 12

S. Rep. No. 93-1277, 98d Cong., 2d Sess.

| AR rr ere rr er rere rr ee 22

Traynor, Mapp v. Ohio at Large in the Fifty

States, 1962 Duke L.J. 319 ............. 12

In the Supreme Court of the Anited States

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

VICTOR DOMINGO GARCIA, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Solicitor Generai, on behalf of the United States,

petitions for a writ of certiorari to review the decision

of the United States Court of Appeals for the Fifth Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-17a) is reported at 676 F.2d 1086. The ruling of the

district court denying respondents’ motion to suppress

evidence (App. D, infra, 20a-22a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 28, 1982 (App. B, infra, 18a). A petition for re-

hearing was denied on December 20, 1982 (App. C,

infra, 19a). On February 9, 1983, Justice Rehnquist ex-

tended the time within which to file a petition for a writ

of certiorari to and including March 20, 1983. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Texas, respondent

Mungia was convicted of possessing marijuana with in-

tent to distribute it, in violation of 21 U.S.C. 841(a)(1),

and respondents Garcia and Barrera-Saenz were con-

victed of conspiring to commit that offense, in violation

of 21 U.S.C. 846.1 The evidence at trial showed that

respondent Mungia transported some 2,073 pounds of

marijuana and that respondents Garcia and Barrera-

Saenz participated in a conspiracy to further the distri-

bution of the marijuana. The scheme was thwarted

when two Texas game wardens discovered respondents’

activities. Respondent Garcia was sentenced to eight

years’ imprisonment. Respondent Mungia was _ sen-

tenced to five years’ imprisonment, to be followed by a

three-year special parole term. Respondent Barrera-

Saenz was sentenced to five years’ imprisonment, all

but six months of which were suspended in favor of pro-

bation. The court of appeals reversed the convictions

(App. A, infra, la-17a).

1. The evidence showed that on the evening of Octo-

ber 17, 1980, Texas game wardens Christopher Huff

and Hilario Saenz established an observation post on a

hill approximately 12.8 miles north or Rio Grande City,

Texas, and some 100 yards west of Highway 3167 (Tr.

61, 199).2 The wardens frequently used this observation

post te patrol for game violations (Tr. 61-62).

1 Respondents Garcia and Barrera-Saenz were acquitted on

the substantive offense, while respondent Mungia was acquitted

on the conspiracy count. A fourth co-defendant, Jose Angel

Garza-Soliz, fled the scene of the arrest and has not been

apprehended.

2 “Tr.” refers to the consecutively-paginated transcript of the

suppression hearing and trial contained in Volumes II-VIII of

the record on appeal.

At approximately 10:15 p.m., the officers heard a

loud, banging noise and the sound of an engine in the

area south of their lookout point (Tr. 62, 205, 403).

Looking through his binoculars, Officer Huff saw a

large, white vehicle driving through a pasture (Tr. 63).

The vehicle was driving without any lights (Tr. 63, 65,

207). Huff gave his binoculars to Officer Saenz, who

also observed a large truck without lights moving

through a pasture (Tr. 403-404). When the truck

reached Highway 3167, its headlights were turned on.

It then headed north on Highway 3167 (Tr. 64, 208,

405).

Officer Huff thought it was unusual to see a large

truck driving without lights in a pasture (Tr. 72), par-

ticularly because he knew from personal knowledge

that the dirt road on which the truck was travelling was

hazardous (Tr. 140).° In addition, Officer Huff's suspi-

cions were aroused because he recently had _partici-

pated in the recovery of a stolen tractor-trailer in the

same generai area (Tr. 105, 143). Finally, only two days

before the events in question, a Customs Patrol Officer

had asked Officer Huff to be on the lookout for large

trucks because of their use in the transportation of illic-

it drugs (Tr. 106, 142-143).

With this background knowledge, Officer Huff sug-

gested to his fellow officer that the truck might be

stolen or that it might contain a load of marijuana (Tr.

72, 208). Accordingly, the two officers pursued the

truck; they eventually stopped it about one-half mile

north of their observation post (Tr. 73, 209). The vehi-

cle was an 18-wheel diesel truck with a tanker-trailer of

the type usually used for carrying oil or gasoline (Tr.

74-75, 210). Huff knew that there were no oil wells on

the property from which the tanker had emerged (Tr.

3 Indeed, later during the night of the events in question, Of-

ficer Huff had to help pull a Customs Patrol Officer’s vehicle out

of a ditch on the same road (Tr. 140).

152-153). The officers approached the cab of the tanker,

and respondent Mungia, the sole occupant, stepped out.

Officer Huff identified himself and asked Mungia for

identification. Mungia produced a driver’s license and,

in response to a question from Huff, said that he had

come from a ranch “down below there” and was looking

for the Las Escobas Ranch (Tr. 75-77, 210-212, 407).

Mungia became very nervous; his hands were trembling

(Tr. 78, 212). When Huff asked Mungia what company

employed him and who owned the tanker, Mungia said

only that the tanker belonged to “some gringo” for

whom Mungia worked but whom he could not identify

(Tr. 78, 154, 212-213, 408-409). Huff then said he was

going to search the tanker; Mungia told him to “go

ahead” (Tr. 78, 154-155, 213).

Huff climbed onto the trailer. He found marijuana

residue around the opening of the tank, and when he

opened the lid, he encountered a strong smell of mari-

juana. He then shined his flashlight into the interior of

the tanker, where he saw many sacks of a substance

that appeared to be marijuana (Tr. 79-80, 213-216). Af-

ter climbing down from the trailer, Huff advised

Mungia that he was under arrest for possession of mari-

juana (Tr. 80, 216). Leaving (fficer Saenz to watch the

tanker, Huff handcuffed Mungia, placed him in the

patrol car and drove back to the point where the tanker

had entered Highway 3167 from the dirt road. Huff

parked his patrol car there on the shoulder, with all

lights off (Tr. 81-82, 216-217, 220-223).

Within approximately five minutes, a beige Chevro-

let pickup truck came down the same dirt road, again

without lights. Huff first saw it when it was about 20

yards away from his patrol car. When the pickup

reached his position, Huff turned on his headlights and

red lights; the pickup stopped (Tr. 85-87, 223-225). Huff

left his patrol car and approached the pickup. Three

men were in the cab; Huff recognized the driver as re-

spondent Garcia. As he approached, Huff saw the man

on the passenger side—co-defendant Garza-

Soliz—reach down toward the floor. Huff was unsure

whether Garza-Soliz was trying to conceal something or

was reaching for a weapon (Tr. 87-89, 93, 227-230). Ac-

cordingly, Huff directed the three men to leave the

pickup and place their hands on the driver's side of the

truck. Garcia, Garza-Soliz, and respondent Barrera-

Saenz—the third man—complied with Huff's request.

Huff then patted them down for weapons. In Garcia's

back pocket, Huff felt a metallic object that turned out

to be a loaded ammunition clip for a .45 caliber pistol.

Garcia advised Huff that he had a pistol in the cab of

the pickup (Tr. 89-92, 229, 231-233). Huff used his one

remaining set of handcuffs to handcuff Garcia and

Barrera-Saenz together. Garza-Soliz, from whose boot

Huff removed a bag of marijuana, stood alongside the

other two (Tr. 93-95, 233-234, 240).

Officer Huff ther went around the pickup to the pas-

senger side to search for Garcia’s weapon. As he did so,

Huff noticed the odor of marijuana and saw marijuana

residue in the bed of the pickup (Tr. 95, 237). He also

found a Colt .45 caliber pistol under the seat on the

floor on the passenger side (Tr. 96, 236-237). Hutf then

returned to his patrol car to radio the Starr County

Sheriffs Department for assistance. As he did so, co-

defendant Garza-Soliz fled into the brush (Tr. 97, 240,

245).

Approximately 15 minutes later, two sheriff's depu-

ties arrived. Huff left respondents with one deputy;

Huff and the other deputy followed the tracks of the

18-wheel tanker on the road into the pasture (Tr. 98,

247-250). Deep in the pasture, in the middle of the road,

they found a white 1980 GMC pickup with a flat tire;

the officers later determined that the pickup was regis-

tered to respondent Garcia’s brother. Marijuana resi-

due and footprints were visible around the pickup, and

the tracks of the 18-wheeler ended near the pickup’s lo-

cation (Tr.100-102, 250-253, 256, 258-259). The tanker’s

tracks formed a sort of “Y” around the pickup, as if the

tanker had turned around at that location (Tr. 252-253,

264, 469-471, 473, 579-581).

In the meantime, several Customs Patrol officers

arrived at the scene. After Huff briefed them, they too

went into the pasture to examine the tanker tracks and

the pickup (Tr. 265-266, 268, 273-275, 626-627). Their

examination of the white pickup revealed marijuana

residue on the truck bed, bumper, and left rear tire

(Tr. 428-429, 628-629, 673). Samples of the residue from

both pickup trucks were taken the next morning (Tr.

750-752). The tanker truck yielded 2,073 pounds of ma-

rijuana (Tr. 749).*

2. Prior to trial, respondents unsuccessfully moved

to suppress the evidence of marijuana on the ground

that, under Texas law, game wardens lack authority to

make arrests for non-game violations, that the arrests

were therefore illegal, and that the marijuana should be

suppressed as the evidentiary fruits of the illegal ar-

rests. Respondents also argued that the game wardens

lacked reasonable suspicion to stop the tanker or proba-

ble cause to search the tanker and to arrest respon-

dents Garcia and Barrera-Saenz.

At the pretrial hearing on the suppression motion

and at trial, Officer Huff consistently testified that he

was a certified peace officer (Tr. 60, 132-133, 150-151,

197). The government also called as a witness the re-

gional director of law enforcement of the Texas Depart-

ment of Parks and Wildlife; he would have testified to

his belief that game wardens have the powers of peace

officers under Texas law. But before that witness could

* A chemist from the Drug Enforcement Administration testi-

fied that after this amount was cleaned of seeds and stems, it

still would yield 1.8 million cigarettes at two cigarettes per

gram (Tr. 802-803).

so testify, the district court held that Huff had authori-

ty under applicable Texas statutes to arrest respon-

dents (Tr. 157-158). The district court further held that

the stop of the tanker was justified by reasonable suspi-

cion and that the game wardens had probable cause to

search the tanker and to arrest respondents (App. D,

infra, 20a-22a).

3. The court of appeals reversed, holding that the

marijuana should have been suppressed (App. A, infra,

16a-17a). The court began its analysis with the proposi-

tion that the legality of respondent’s arrests by state of-

ficers is governed by state law (id. at 4a-5a). It then

determined that the arrests were illegal because, under

Texas law, game wardens lack “cosmic arresting au-

thority” (id. at 14a). Although article 2.12(11) of the

Texas Criminal Procedure Code Annotated (Vernon

1977) includes game wardens within its definition of

peace officers, and article 2.13 authorizes a peace offi-

cer to make warrantless arrests “where * * * author-

ized by law,” the court concluded that the Texas Parks

and Wildlife Code limits a game warden’s arrest powers

either to offenses committed in state parks or to viola-

tions of game laws (App. A, infra, 7a-8a, 13a). The

court rejected the government’s argument that article

14.03 of the Texas Criminal Procedure Code Anno-

tated, which grants any peace officer the power to

make warrantless arrests on probable cause, applies to

game wardens despite the limitations of the Parks and

Wildlife Cotle (App. A, infra, 12a-13a). Because the ar-

rests in this case neither took place in a state park nor

were for violations of a game law, the court held that

the arrests were invalid and that the marijuana evi-

dence should have been suppressed as the fruit of the

arrests (id. at 14a-l6a). Finally, the court ruled that

the “good-faith” exception to the exclusionary rule (see

United States v. Williams, 622 F.2d 830, 840-847 (5th

Cir. 1980) (en banc), cert. denied, 449 U.S. 1127 (1981))

was not applicable in this federal prosecution because

the Texas courts do not recognize such an exception

(App. A, infra, 16a-17a). Accordingly, the court re-

versed the convictions (id. at 17a).5

4. The government petitioned for rehearing. First,

the government pointed out that after the court of ap-

peals’ decision in this case, a panel of the Texas Court

of Criminal Appeals expressly held that game wardens

possess the general arrest powers accorded to any

peace officer under articles 2.13 and 14.03 of the Texas

Criminal Procedure Code Annotated. Christopher v.

State, 689 S.W.2d 932 (Tex. Crim. App. 1982).® Ac-

cordingly, the government argued that it would be ap-

propriate for the court of appeals to reconsider its opin-

ion and to defer to the Christopher court’s

determination on this issue of state law. Further, the

government argued that any technical illegality in the

game wardens’ actions under state law should not pre-

clude admission of the marijuana evidence in this feder-

al prosecution because there was no indication that the

game wardens’ actions violated federal constitutional

standards and because the game wardens acted in the

reasonable belief that they possessed general arrest au-

thority under Texas law. Relying principally on Elkins

v. United States, 364 U.S. 206 (1960), the government

contended that the court of appeals erred in applying

5 Because it rested its judgment on the conclusion that the ar-

rests exceeded the officers’ authority under state law, the court

of appeals did not review the district court’s determination

(App. D, infra, 20a-22a) that the arrests were supported by

probable cause (App. A, infra, 17a n.27). The court also de-

clined to review the challenge to the sufficiency of the evidence

mounted by respondents Garcia and Barrera-Saenz (ibid. ).

® In Christopher, the defendant was stopped by a game war-

den who had observed him driving in excess of the speed limit.

As the warden approached the vehicle, he smelled marijuana.

Marijuana was later found in defendant's vehicle, and he was

convicted of possession of that drug (639 S.W.2d at 933-934).

state rather than federal law to determine whether to

invoke the exclusionary rule.

The court of appeals announced that it would defer

any ruling on the government’s rehearing petition after

learning that the Texas Court of Criminal Appeals had

granted a petition for rehearing en banc in Christopher

v. State, supra. On rehearing, the state court again af-

firmed Christopher’s conviction for possession of mari-

juana (see page 8 note 6, supra), but it modified its rul-

ing on the scope of game wardens’ general arrest

powers. Relying on Tex. Rev. Civ. Stat. Ann. art.

6701d § 153 (Vernon 1977), the court held that game

wardens are authorized to make warrantless arrests for

violations of state traffic laws (whether or not the traf-

fic violations occur in state parks or in connection with

game law violations), but it rejected the pane!’s conclu-

sion that game wardens possess the full arrest powers

of any Texas peace officer (639 S.W.2d at 937).

Thereafter, the court of appeals denied the govern-

ment’s rehearing petition in this case (App. C, infra,

19a), citing the en bane decision in Christopher. The

court did not address the government’s alternative

grounds for rehearing.”

REASONS FOR GRANTING THE PETITION

The court of appeals has extended the reach of the

Fourth Amendment exclusionary rule far beyond its in-

tended scope. The court did not rule, nor could it have

ruled on this record, that the game wardens violated

the Fourth Amendment or any federal statute or rule.

7 On January 11, 1983, the government moved for dismissal of

the indictment against respondents, and that motion was

granted by the district court or January 12, 1983. For the rea-

sons set forth in our supplemental brief in United States v.

Villamonte-Marquez, No. 81-1350 (filed Mar. 15, 1983), we do

not believe this action affects this Court’s jurisdiction. We are

furnishing respondents’ counsel a copy of our supplemental brief

in Villamonte-Marquez.

And the state law that was violated was not one intend-

ed to safeguard the Fourth Amendment or related pri-

vacy interests. Instead, the state law was a purely

technical one designed to allocate arrest powers among

various state officials; it was not intended to protect the

rights of suspiciously-behaving citizens. This Court has

never held that the exclusionary rule is applicable to vi-

olations of such idiosyncratic state laws.

The court of appeals also erred in failing to apply its

own good-faith exception to the exclusionary rule in

this case. Clearly, the arresting officers, even if mistak-

en, did not act unreasonably in thinking that they pos-

sessed the full arrest powers of any Texas peace officer;

the district court and a panel of the Texas Court of

Criminal Appeals so held. The game wardens could not

reasonably have been expected to anticipate the contra-

ry result ultimately reached by a panel of the Fifth Cir-

cuit; and clearly they could not have predicted the re-

sult reached by the state court sitting en banc, which

grants them full arrest powers for drug offenses discov-

ered in the course of traffic violations but not

otherwise.

Finally, the court seriously erred in looking to state

evidentiary rules to determine the applicability of the

exclusionary rule. The admissibility of evidence in fed-

eral criminal proceedings is governed by federal law,

including the Federal Rules of Evidence, not by state

law.

The resuit of the court’s decision is an unjustified ex-

tension of the exclusionary rule that is compounded by

confusion as to the applicable rules of evidence. In light

of the importance to our system of criminal justice of

the proper application of the exclusionary rule, this

Court’s review is warranted.

1. The court of appeals did not hold, or even suggest,

that the stop of the tanker driven by respondent

Mungia, although perhaps illegal under state law, in

any way violated the Fourth Amendment or any federal

law.® Instead, the court summarily concluded (App. A,

infra, 16a), without citation of authority, as follows:

® One of the many anomalies in the court of appeals’ decision

is its strict focus on the legality of the arrests in this case when,

in fact, the arrests were completely irrelevant to the seizure of

the marijuana evidence. As we have set forth above (see pages

3-4, supra), Cfficer Huff searched the tanker driven by respon-

dent Mungia before making the arrest; in the case of the other

respondents, no search was required because marijuana residue

was in plain view in the bed of their pickup truck. For purposes

of this case, however, we may assume that if Officer Huff lacked

authority under state law to make arrests outside of state parks

for non-game law violations, he likewise lacked authority under

state law to stop vehicles outside of state parks on suspicion of

such violations. Accordingly, we presume that the court of ap-

peals would have reached the same result had it focused on the

stop of the tanker truck, which was the critical event in this

case.

Nevertheless, it is important to point out that this Court has

never ruled on the question whether state or federal law gov-

erns the validity of investigative stops. Although the Court has

held that searches are tested by federal law (Elkins v. United

States, 364 U.S. 206, 217 (1960)), and that warrantless arrests

are tested by state law in the absence of a controlling federal

statute (United States v. Di Re, 332 U.S. 581, 589 (1948)), an

investigative stop does not clearly fall within either category.

An investigative stop may lead to a search (and hence the

Elkins line of cases), or to an arrest (and hence the Di Re line

of cases), or, as in the present case, to both a search and an ar-

rest (and hence an uncertain result). In our view, the facts of

this case point out the need for a uniform federal rule in all cir-

cumstances (see pages 17-18 note 14, infra).

In any event, it is worth noting that no illegal arrests oc-

curred in this case, even under state law. By the time Officer

Huff arrested respondent Mungia, he could have made a lawful

citizen’s arrest under article 14.0l(a) of the Texas Criminal

Procedure Code Annotated because he knew that a felony (pos-

session of marijuana) was being committed in his presence. His

knowledge came from his search of the tanker, the validity of

which turns on federal law (Elkins, supra). Similarly, it ap-

pears that Huff, even acting as a game warden, could have ar-

rested Garcia, Barrera-Saenz and Garza-Soliz for a traffic viola-

Having found that defendants were illegally ar-

rested, it follows that the evidentiary fruits of

those unlawful arrests should not have been intro-

duced at defendants’ trial.

Contrary to the court of appeals’ unsupported assertion

that suppression was required in these circumstances,

we submit that the court was required first to consider

the nature of the state illegality. If, as here, the viola-

tion of state law was not of constitutional magnitude,

then neither the Fourth Amendment nor any federal

statute confers authority on the federal courts to sup-

press evidence obtained in violation of a purely techni-

cal state law.®

a. Since Weeks v. United States, 232 U.S. 383

(1914), it has been clear that the exclusionary rule is a

judicial response to “direct violation of the constitution-

al rights of the defendant” (id. at 398; emphasis added).

See, e.g., Stone v. Powell, 428 U.S. 465, 482 (1976)

tion (see Christopher v. State, supra) because he observed their

pickup truck driving on a public highway at night without any

lights. Alternatively, Huff could have made a legitimate citi-

zen’s arrest because he observed marijuana residue in plain

view in the bed of the pickup truck. These points, which the

government did not assert below and which are not independ-

ently worthy of this Court’s review, are noted here only to dem-

onstrate the incongruous result reached by the court of appeals.

® We note preliminarily that the court of appeals did not hold

that any arrest that violates state law is itself a violation of the

Fourth Amendment; on the contrary, the court expressly disa-

vowed making any constitutional ruling (App. A, infra, 5a n.6).

This is in accord with the views expressed by Professor LaFave

(1 W. LaFave, Search and Seizure, A Treatise on the Fourth

Amendment § 1.3, at 51-52 (1978), quoting Traynor, Mapp v.

Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 328):

[UJnquestionably there is no constitutional requirement

that evidence obtained in another jurisdiction be sup-

pressed merely because the process of acquisition offended

some local law. The argument that ‘local rules * * * will

have constitutional sanction, for whatever action is illegal

is perforce unreasonable,’ has not prevailed.

(emphasis added) (“[t}he exclusionary rule was a judi-

cially created means of effectuating the rights secured

by the Fourth Amendment”); United States v. Calan-

dra, 414 U.S. 338, 348 (1974) (emphasis added) (“the

rule is a judicially created remedy designed to safe-

guard Fourth Amendment rights * * *"); Elkins vy.

United States, 364 U.S. 206, 217 (1960) (emphasis

added) (the purpose of the rule is “to compel respect for

the constitutional guaranty * * *”). See also United

States v. Caceres, 440 U.S. 741 (1979) (refusing to ex-

clude evidence obtained as a result of electronic record-

ing in violation of government regulations but not in vi-

olation of defendant’s constitutional rights); United

States v, Hensel, No. 81-1538 (1st Cir. Jan. 25, 1983),

slip op. 27 (“The exclusionary rule was not fashioned to

vindicate a broad, general right to be free of agency ac-

tion not ‘authorized’ by law, but rather to protect cer-

tain specific, constitutionally protected rights of indi-

viduals”), !°

Indeed, despite the exclusionary rule’s broad purpose

of deterring constitutional violations, this Court has

recognized that application of the rule “deflects the

truthfinding process and often frees the guilty.” Stone

v. Powell, supra, 428 U.S. at 490. Accordingly, the

Court has substituted for automatic exclusion of evi-

dence seized in violation of Fourth Amendment rights a

balancing test in which deterrence of official misconduct

is weighed against the substantial cost to society of

excluding probative evidence. See, e.g., United States

v. Janis, 428 U.S. 433 (1976); United States v. Calan-

dra, supra, 414 U.S. at 349-352; Alderman v. United

1° We recognize, of course, that Congress may provide for the

suppression of evidence even when there has been no constitu-

tional violation. See, e.g., 18 U.S.C. 2515 (fruits of unlawful

wiretap not admissible). But there is no federal statute or rule

relevant to this case, and thus the focus must be on constitu-

tional considerations.

States, 394 U.S. 165, 175 (1969). These cases hold that

invocation of the exciusionary rule may be inappropri-

ate even when actual violations of the Fourth Amend-

ment have occurred; it follows a fortiori that imposition

of that drastic remedy is wholly disproportionate to the

purpose for which it was apparently used here, viz.,

the enforcement of a state’s statutory provisions cir-

cumscribing the arrest powers of game wardens. Ac-

cordingly, Officer Huff's stop of respondents did not call

for invocation of the exclusionary rule because, as the

district court held (App. D, infra, 20a-22a), the officer’s

actions were fully consistent with Fourth Amendment

requirements and did not otherwise violate the

Constitution.

b. Under the Fourth Amendment, an investigative

stop, such as the stop of the tanker truck in this case,

need be grounded only on reasonable suspicion. See

United States v. Brignoni-Ponce, 422 U.S. 873, 884

(1975). In the present case, the game wardens had a

reasonable suspicion that criminal activity was afoot

based on respondent Mungia’s highly unusual activity of

driving a large tanker at night without lights on a very

poor ranch road near the border, coupled with Officer

Huff's own knowledge of previous criminal activity

involving a stolen tanker in the same general area and

another officer’s directive to watch for large trucks of

the type driven by Mungia because of their use in mari-

juana smuggling in the area (Tr. 72, 105-106, 138-143).

This information then ripened into probable cause to

believe that the tanker contained contraband, justifying

the search of the tanker, when respondent Mungia was

unable to answer or gave evasive answers to certain

very elementary questions concerning the place of ori-

gin of his trip, the identity of his employer, and the

owner of the tanker (Tr. 75-78, 154; see also Tr.

212-213, 408-409). The discovery of marijuana in the

tanker clearly justified Mungia’s arrest, as well as the

stop and arrest of respondents Garcia and Barrera-

Saenz when, moments later, they were observed in an

unlighted pickup truck leaving the same pasture from

which Mungia had emerged (Tr. 85-87; see also Tr.

223-225). The fact that the game wardens lacked au-

thority under Texas law to take these actions did not

implicate respondents’ Fourth Amendment rights be-

cause the Fourth Amendment simply does not address

the question of which government officers may make a

search or seizure in a particular situation; instead, the

Fourth Amendment requires only that the governmen-

tal intrusion be supported by reasonable suspicion or

probable cause, depending on its nature.!!

ce. This distinction, for exclusionary rule purposes,

between constitutional and nonconstitutional error has

been widely recognized by the federal courts of appeals

in the context of cases arising out of violations of Fed.

R. Crim. P. 41, governing the issuance and execution of

search warrants. These cases hold that, as a general

principle, a violation of the requirements of Rule 41

does not warrant suppression of evidence unless the vi-

olation renders the search unconstitutional under tradi-

! Compare United States v. Soto-Soto, 598 F.2d 545 (9th

Cir. 1979), in which the court of appeals held that an FBI

agent’s lack of statutory authority to conduct border searches

rendered the search in question subject to normal Fourth

Amendment standards rather than the special rules applicable

to border searches; the court then ordered suppression of the

evidence because the agent had neither reasonable suspicion nor

probable cause for the stop and search in question. In a subse-

quent case, the Ninth Circuit made it clear that the evidence in

Soto-Soto was suppressed not merely because the agent acted in

excess of his statutory authority but because the search was

found to have been unconstitutional. United States v. Harring-

ton, 681 F.2d 612, 615 (1982). See also United States v. Vasser,

648 F.2d 507, 511 n.3 (9th Cir. 1980), cert. denied, 450 U.S. 928

(1981); United States v. Johnson, 641 F.2d 652, 659 n.5 (9th

Cir. 1980).

tional Fourth Amendment standards. See, e.g., United

States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982);

United States v. Vasser, 648 F.2d 507, 510 (9th Cir.

1980), cert. denied, 450 U.S. 928 (1981); United States

v. Pennington, 635 F.2d 1387, 1390 (10th Cir. 1980),

cert. denied, 451 U.S. 9388 (1981); United States v.

Gitcho, 601 F.2d 369, 372 (8th Cir. 1979); United States

v. Dudek, 530 F.2d 684, 689 (6th Cir. 1976); United

States v. Burke, 517 F.2d 377, 386 (2d Cir. 1975).!2 As

the court stated in United States v. Burke, supra, 517

F.2d at 386, quoting United States v. Dunnings, 425

F.2d 836, 840 (2d Cir. 1969), cert. denied, 397 U.S.

1002 (1970), the exclusionary rule is “‘a blunt instru-

ment, conferring an altogether disproportionate reward

not so much in the interest of the defendant as in that

of society at large.’ For that reason courts should be

wary in extending the exclusionary rule * * * to viola-

tions which are not of constitutional magnitude.”!*

12 These cases acknowledge an exception to this general rule

only in the rare instance in which the defendant is prejudiced by

the nonconstiiutional violation or the violation is committed in

deliberate disregard of Rule 41, Fed. R. Crim. P. Such an ex-

ception could not possibly apply here. Respondents were not

prejudiced simply because they were stopped by one type of

state officer instead of another. As we have shown, the officers’

conduct fully comported with constitutional requirements. Nor

is there any suggestion in this case of intentional misconduct on

the part of the game wardens. Officer Huff repeatedly testified

that he believed that he was a certified peace officer under Tex-

as law (Tr. 60, 132-133, 150-151, 197), and this belief, as we will

presently show (see pages 19-21, infra), was entirely reason-

able at the time of the events in question.

13 The distinction, for purposes of the exclusionary rule, be-

tween “unconstitutional” actions and “illegal” actions is implicit

in Elkins v. United States, supra, 364 U.S. at 224, and was ex-

pressly recognized by Justice Frankfurter in his dissent in that

case, in which he objected strenuously to the majority's distine-

tion between the “‘unconstitutionality’ of police conduct, as dis-

d. The court of appeals felt bound to follow this

Court’s decision in United States v. Di Re, 332 U.S.

581, 589 (1948), in which the Court held that in the ab-

sence of a controlling federal statute, the validity of a

warrantless arrest is to be determined according to the

law of the state in which the arrest took place. See also

United States v. Watson, 423 U.S. 411, 420 n.8 (1976);

Ker v. California, 374 U.S. 23, 37 (1963); Miller v.

United States, 357 U.S, 301 (1958); Johnson v. United

States, 333 U.S. 10, 15 n.5 (1948). Apart from the ques-

tion of Di Re’s continuing vitality,'4 we note that the

tinguished from its mere illegality under state or federal law”

(id. at 243).

‘The Court has never explained the dichotomy between

Elkins v. United States, supra, which holds that the validity of

searches and seizures is to be tested by federal law, “neither en-

larged by what one state court may have countenanced, nor di-

minished by what another may have colorably suppressed” (364

U.S. at 224), and United States v. Di Re, supra, which holds

that, absent a controlling federal statute, the validity of a

warrantless arrest is determined according to the law of the

state in which the arrest occurred (332 U.S. at 589). In Di Re,

the Court relied in part on the absence of “any general federal

law of arrest” (id. at 590). But there is likewise no general fed-

eral law of search and seizure except that which this Court has

created. Reasoning from cases such as Terry v. Ohio, 392 U.S.

1 (1968), at least one court has concluded that this Court has,

subsequent to Di Re, effectively created general federal law

governing arrests and that Elkins implicitly overruled Di Re.

United States v. Miller, 452 F.2d 731, 733 (10th Cir. 1971),

cert. denied, 407 U.S. 926 (1972); United States v. Alberty, 448

F.2d 706 (10th Cir. 1971). The view that federal law governs the

validity of state arrests for purposes of federal trials has recent-

ly beeen endorsed by the Sixth Circuit. United States v. Por-

ter, No. 81-5617 (Mar. 10, 1983), slip op. 13.

In any event, it is apparent from cases such as the instant one

that the Di Re rule produces anomalous results. There is no log-

ic to the proposition that the outcome of a federal criminal pros-

ecution should turn on technical idiosyneracies peculiar to the

state in which the law enforcement activity occurred. It thus

state statute in that case was significantly different

from the one involved here. The requirement that war-

rantless misdemeanor arrests be made only for offenses

committed in the presence of the arresting officer (332

U.S. at 591), while not constitutionally mandated,

clearly implicates substantial individual liberty inter-

ests; the Texas statutory provisions circumscribing the

arrest powers of game wardens do not.'®

In our view, it is clearly inappropriate for a federal

court to order suppression to enforce a state statutory

provision that does not implicate constitutional rights

or protect substantial individual privacy or liberty in-

terests. There is no compelling federal interest in en-

forcement of the Texas provisions governing the arrest

powers of game wardens sufficient to justify suppres-

sion of the highly probative evidence seized here and

the consequent reversal of respondents’ criminal convic-

tions. It is true that in rejecting the “silver platter”

doctrine in Elkins this Court relied in part on the frus-

tration of state policy that would result if federal courts

admitted evidence that would not have been admissible

in a state court (364 U.S. at 221-222). But the Court in

Elkins clearly had in mind state search and seizure

rules of constitutional magnitude that were congruent

with federal standards (ibid.), and neither the policy

nor the logic of that decision extends to cases involving

technical, nonconstitutional state requirements that

might be appropriate for the Court to reconsider Di Re and its

progeny. Such reconsideration is not essential in this case, how-

ever, because, as we demonstrate in text, even Di Re cannot

support the result reached by the court of appeals.

15 The same distinction is apparent in other cases following

Di Re. See, e.g., Ker v. California, supra, 374 U.S. at 37-38

(state “knock-and-announce” rule); Miller v. United States,

supra, 357 U.S. at 306 (same); Johnson v. United States, 333

U.S. at 15 & n.5 (state rule permitting warrantless felony ar-

rests only upon “reasonable cause” to believe the defendant

guilty).

have no counterpart in federal law. Here, by their ob-

servable conduct, respondents rendered themselves

subject to stop, and eventually arrest, by any duly au-

thorized state or federal official. It was wholly fortui-

tous, and wholly immaterial in terms of their expecta-

tions of freedom from official intrusion, that the

particular officers who observed them lacked full police

powers. The only law that was violated by the officers

was one intended to allocate governmental powers

among various officials, rather than one intended to

protect the rights of citizens engaging in suspicious be-

havior. Accordingly, the court’s invocation of the exclu-

sionary rule was erroneous.

2. Even assuming that the exclusionary rule may

sometimes be invoked for violation of a state law that

does not embody constitutional requirements, the rule

should not have been applied in this case. At the time of

the events in question, the Texas courts had not settled

the scope of a game warden’s arrest powers. At the

suppression hearing, Officer Huff consistently testified

that he was a certified peace officer (Tr. 60, 132-133,

150-151, 197) who, under article 14.03 of the Texas

Criminal Procedure Code Annotated, would be author-

ized to make warrantless arrests on probable cause.

Moreover, the government offered as a witness the re-

gional director of law enforcement of the Texas Depart-

ment of Parks and Wildlife; this witness would have

testified that game wardens have the full powers of

peace officers under Texas law. But the district court

ruled that this witness’s testimony was unnecessary be-

cause the court’s own examination of the relevant Tex-

as statutes had convinced it that game wardens had

general arrest powers (Tr. 157-159). And, as previously

noted, a panel of the Texas Court of Criminal Appeals

subsequently reached the same conclusion. Christopher

v. State, supra, 639 S.W.2d at 934-935.

That a panel of the Fifth Circuit and the Texas Court

of Criminal Appeals sitting en banc later reached a dif-

ferent conclusion in no way detracts from the fact that

at all relevant times Officer Huff (as well as his superi-

or at the Texas Department of Parks and Wildlife) rea-

sonably believed that he had all the powers of a Texas

peace officer. Accordingly, the “good-faith” or “reason-

able mistake” exception to the exclusionary rule adopt-

ed by the Fifth Circuit in United States v. Williams,

622 F.2d 830, 840-847 (1980) (en bane), cert. denied, 449

U.S. 1127 (1981), should have been applied here.

The similarity between this case and Williams is

striking. In Williams, a federal agent who had previ-

ously arrested Williams in Ohio for a narcotics violation

encountered her in another state. The agent knew that

a condition of Williams’ release on bond pending appeal

was that she remain in Ohio. Accordingly, the agent ar-

rested Williams for violating this condition and, in ensu-

ing searches incident to the arrest, seized heroin from

Williams’ possession.

Sitting en banc, the Fifth Circuit held unanimously

that the district court should not have suppressed the

heroin. One majority of the court held that the federal

agent had legal authority to arrest Williams because,

by violating a condition of her bail release, she had

committed the crime of contempt of court in the agent’s

presence (622 F.2d at 836-839). A different, overlapping

majority of the court held that, irrespective of the va-

lidity of Williams’ arrest, the heroin should not have

been suppressed because the agent had acted in good

faith in arresting and searching Williams and could not

reasonably be expected to have known that there was

any serious doubt concerning his authority to make the

arrest. Because the purpose of the exclusionary rule is

to deter “willful or flagrant actions by police, not rea-

sonable, good-faith ones” (622 F.2d at 840), the court

concluded that it made no sense to suppress evidence in

these circumstances. Here, too, there can be no doubt

that Officer Huff acted reasonably, as evidenced by the

fact that the district court and a panel of the Texas

Court of Criminal Appeals upheld the general arrest

powers of game wardens. Under these circumstances,

application of the exclusionary rule is wholly

unjustified.

This issue is similar to that presently under advise-

ment following the reargument in J/linois v. Gates,

No. 81-430 (reargued Mar. 1, 1983). If the Court

reaches and decides the exclusionary rule issue in

Gates, however, its decision will not necessarily control

the disposition of this case, because Gates involves the

special situation presented by a search conducted pur-

suant to a warrant. It thus seems entirely possible that

this case will afford a suitable vehicle to consider impor-

tant issues that may remain unsettled after Gates. 16

3. Finally, the court of appeals seriously erred in

looking to state law to determine the applicability of the

exclusionary rule. Even accepting the propriety of an-

alyzing the legality of the arrests under state law (see

pages 17-18 note 14, supra), the court of appeals cited

no authority, and we know of none, for the proposition

that state rules of evidence govern federal criminal

prosecutions. On the contrary, federal courts are bound

to apply the Federal Rules of Evidence in proceedings

before them. See Fed. R. Evid. 1101. Thus, Rule 402 of

the Federal Rules of Evidence, rather than the eviden-

tiary rules of the State of Texas, governs this proceed-

16 We have presented our arguments in support of a “reason-

able mistake” exception to the exclusionary rule in Gates and

need not repeat them here. We are furnishing respondents’

counsel with copies of our brief in Gates (Supplemental Brief for

the United States as Amicus Curiae Supporting Reversal (filed

Jan. 13, 1983)), in which those arguments are set forth.

ing.47 Rule 402 provides for the admission of all rele-

vant evidence, “except as otherwise provided by the

Constitution of the United States, by Act of Congress,

by these rules, or by other rules prescribed by the Su-

preme Court pursuant to statutory authority.” None of

the exceptions is applicable here; neither the federal

Constitution nor any federal statute or rule calls for the

exclusion of evidence obtained in violation of a purely

technical state law.

Contrary to the court of appeals’ assertion (App. A,

infra, 17a), application of a “reasonable mistake” ex-

ception to the exclusionary rule in this case would not

have the effect of “engraft{ing] a ‘good faith’ exception

onto Texas jurisprudence.” The courts of Texas remain

free to admit or exclude evidence in their own proceed-

ings as they see fit, but the rules of procedure utilized

in federal criminal trials should in no way depend on the

idiosyneracies of state law. This is clear from the Sen-

ate Report accompanying the adoption of the Federal

Rules of Evidence. The report (S. Rep. No. 93-1277,

93d Cong., 2d Sess. 8 (1974)) observed:

[T}here is a real need for a comprehensive code of

evidence intended to govern the admissibility of

proof in all trials before the Federal courts because

of the lack of uniformity and clarity in the present

law of evidence on the Federal level.

17 Texas’ exclusionary rule (Texas Criminal Procedure Code

Ann. art '9}.23 (Vernon 1979)) is contained in the chapter of the

Code entitled “Evidence in Criminal Actions.” Thus, Texas’ ex-

clusionary rule is as much a rule of evidence as is the federal ex-

clusionary rule developed by this Court.

The unprecedented approach taken by the court of ap-

peals in this case is thus flatly inconsistent with Con-

gress’ purpose in enacting the Federal Rules of Evi-

dence.'®

18 Prior to the adoption of Rule 402, this Court had held that

its supervisory power over the administration of justice in the

federal courts enabled it to fashion rules governing the admissi-

bility of evidence in federal criminal trials, whether or not such

rules were constitutionally required. McNabb v. United States,

318 U.S. 332, 341 (1943). But it is doubtful whether the McNabb

rule survived the passage of the Federal Rules of Evidence. In

enacting those rules, Congress specifically addressed the ques-

tion of this Court’s authority to make amendments; in discussing

Rule 402, the House Report explained (H.R. Rep. No. 93-650,

93d Cong., Ist Sess. 7 (1973)):

Rule 402 as submitted to the Congress contained the

phrase “or by other rules adopted by the Supreme Court”.

To accommodate the view that the Congress should not ap-

pear to acquiesce in the Court’s judgment that it has au-

thority under the existing Rules Enabling Acts to promul-

gate Rules of Evidence, the Committee amended the above

phrase to read “or by other rules prescribed by the Su-

preme Court pursuant to statutory authority” in this and

other Rules where the reference appears.

At the same time, Congress enacted 28 U.S.C. 2076, which in-

creased the role of Congress in the evidence rulemaking proc-

ess. See. H.R. Rep. No. 93-650, supra, at 18. Thus, we believe

that the “supervisory power” relied on in McNabb no longer

furnishes sufficient authority for a federal court to modify Rule

402’s requirement that all relevant evidence be admitted, sub-

ject only to the listed exceptions. Because the “evidentiary

rule” adopted by the Fifth Circuit in this case does not fit within

Rule 402’s exceptions, it could be enforced only if enacted in

conformity with the procedures established in 28 U.S.C. 2076.

In any event, this case is clearly an inappropriate vehicle for

the exercise of a federal court’s “supervisory power” to order

suppression. The law enforcement techniques condemned in

McNabb, supra, 318 U.S. at 334-342, included interrogating the

defendants, all of whom were poorly-educated and without

counsel, for several days without ever bringing them before a

magistrate or judge, as required by statute. No such question-

able practices occurred in the instant case.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Rex E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L,. FREY

Deputy Solicitor General

KATHRYN A, OBERLY

Assistant to the Solicitor General

JOEL M. GERSHOWITZ

Attorney

MARCH 1983

APPENDIX A

UNITED STATES COURTS OF APPEALS,

FIFTH CIRCUIT

MAY 28, 1982

No. 81-2115

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

Vv.

VICTOR DOMINGO GARCIA, RUBEN BARRERA-SAENZ

AND ADAN MONTOLLA MUNGIA,

DEFENDANTS-APPELLANTS.

Appeals from the United States District Court for

the Southern District of Texas.

Before BROWN, GOLDBERG and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

Adan Mungia, Victor Garcia and Ruben Barrera-

Saenz appeal their convictions for the possession of?

and conspiracy to distribute? marijuana. Appellants

have challenged the admissibility of evidence discov-

ered incident to a series of warrantless arrests made by

a Texas game warden. We find that under Texas law,

the game warden’s warrantless arrests were illegal and

that the district court erred in refusing to exclude the

evidentiary fruits of those illegal arrests. Therefore we

reverse.

Facts

The arrests in this case occurred on the night of Octo-

ber 17, 1980. That evening, two Texas Parks and Wild-

121 U.S.C § 841(a)}).

221 U.S.C. § 846.

life Department employees, Christopher Huff and

Hilario Saenz, had positioned themselves on a hill on

the Rosa Ranch, near Rio Grande City, Texas. Accord-

ing to game warden Huff's testimony, they were on the

lookout for violations of state gaming laws.

Huff testified that, using binoculars to scan the area,

he spotted a large truck driving through a pasture on a

private ranch road. According to Huff, the truck’s

lights were off while it was driving on the private road

through the pasture, but when the truck turned onto

Highway 3167, its headlights were turned on.

Huff testified that he had heard reports of stolen ve-

hicles and drug smuggling in the area, and that he

thought the truck he spotted might have been stolen, or

carrying a load of marijuana or involved in cattle

rustling. Therefore, Huff and Saenz decided to stop the

vehicle, an 18-wheeled diesel truck with a

tanker-trailer.

The driver of the truck was appellant Adan Mungia.

Huff demanded that Mungia produce his driver’s li-

cense. Mungia complied. According to Huff, Mungia

then responded to a series of questions with what the

game warden thought to be “evasive” answers. In addi-

tion, Huff thought that Mungia appeared to be nervous.

Therefore, game warden Huff decided to search the

truck. Huff climbed up the tanker-truck’s ladder to the

top of the tank, where he saw what he thought might

be marijuana residue around the tank’s entry hatch.

When he opened the entry hatch, Huff noticed a strong

odor of marijuana. In the interior of the tank were

sacks which later turned out to contain marijuana.

Mr. Mungia was then handcuffed and placed in the

game wardens’ vehicle. Saenz remained with the

tanker-truck while Huff and Mungia drove back down

Highway 3167 to the spot where it intersected the pri-

vate ranch road. At this intersection, Huff spotted a

beige pickup truck emerge from the ranch road with its

lights turned off. Huff stopped the beige pickup, or-

dered its three passengers—Victor Garcia, Ruben

Barrera-Saenz and Angel Garza Soliz—out of the truck,

and handcuffed Garcia and Barrera-Saenz (“Barrera”)

together. A search of the pickup truck by Huff revealed

what appeared to be marijuana residue in its bed. Huff

radioed the Starr County Sheriff's Department for as-

sistance. As he did so, Garza-Soliz ran off into the

brush.*

Two sheriffs deputies arrived. Garcia and Barrera

were left in the custody of one deputy, while Huff and

the other deputy followed the tracks of the tanker-

truck down the private ranch road into the pasture. In

the pasture, they found a white pickup truck with a flat

tire.4 Huff testified that he saw marijuana residue in

the area around the white pickup. In the meantime,

several Customs Patrol officers had arrived. After Huff

related the evening’s events to them, the Customs

Patrol officers also went into the pasture and examined

the white pickup truck. The Customs officers testified

that they found marijuana residue on the truck bed,

bumper and tire.

Defendants were charged with possession of marijua-

na and with conspiracy to possess marijuana with the

intent to distribute it. Each of the three defendants

filed pretrial motions to suppress evidence which they

% Garza-Soliz remains at large.

4 Both Garcia and Barrera testified at trial, giving the follow-

ing account of the evening’s events: On the afternoon and eve-

ning of October 17, 1980 Garcia and Barrera were working to-

gether, tending to chores on Garcia’s ranch. After work, Garcia

was driving Barrera home in the white pickup truck when the

truck had a flat tire. The pickup had no spare tire, so both

Garcia and Berrera left the truck and began walking. While

walking, they spotted the beige pickup truck and flagged it

down. The driver of the beige pickup, Garza-Soliz, agreed to

give them a ride. Minutes later, Huff stopped the beige pickup

containing Garza-Soliz, Garcia and Barrera.

contended had been illegally obtained. At the pretrial

suppression hearing, defendants argued inter alia that

under Texas law, a game warden lacked the authority

to make an arrest for a non-gaming law violation, that

their arrests were therefore illegal, and that the evi-

dentiary fruits of the illegal arrests should not be ad-

missable at trial.5 The district court denied the motions

to suppress, finding that game warden Huff had author-

ity under applicable Texas statutes to arrest

defendants.

The case went to trial before a jury. At the close of

the Government’s case, and at the close of trial, each of

the defendants moved for a Judgment of Acquittal pur-

suant to Rule 29, Fed. R. Crim. P. The motions were

denied. The jury found Mungia guilty of possession of

marijuana, but found him not guilty on the conspiracy

count. Garcia and Barrera were found guilty of conspir-

acy to distribute marijuana, but were acquitted on the

possession charges.

Defendant Mungia, Garcia and Barrera now appeal,

arguing that the trial court erred in denying their mo-

tions to suppress. Defendants Garcia and Barrera argue

also that the district court erred in denying their

motions for Judgment of Acquittal.

Authority to Arrest

The legality of a warrantless arrest, absent a specific

federal statute, is determined by stile law. U.S. v. Di

Re, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210

(1947). The lawfulness of an arrest by state officers for

a state offense is determined by state law, so long as

that law is not violative of the federal Constitution. Ker

v. State of California, 374 U.S. 28, 37, 83 S.Ct. 1623,

1631, 10 L.Ed.2d 726 (1963). When state officers arrest

5 It was also argued that there was no reasonable suspicion to

justify the stop, nor probable cause for the search, of Mungia’s

vehicle.

for a federal crime, the legality of the arrest is deter-

mined by the law of the state in which the arrest takes

place, subject to federal constitutional standards. £.g.,

U.S. v. Ible, 630 F.2d 389, 392-393 (5th Cir. 1980);

U.S. v. Fossler, 597 F.2d 478, 482 n.3 (5th Cir. 1979);

U.S. v. Lipscomb, 435 F.2d 795, 798 (5th Cir. 1970),

cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 38 L.Ed.2d

331 (1971). Therefore, the validity of Texas game ward-

en Huff's warrantless arrests of defendants Mungia,

Garcia and Barrera will be analyzed under Texas law.®

At the pretrial suppression hearing, and once again

on appeal, defendants have argued that outside of state

parks, a game warden lacks statutory authority to

make an arrest for any offense other than a gaming law

violation. The district court overruled defendants’ argu-

ments, finding that Huff was a peace officer under Tex-

as Code of Criminal Procedure, article 2.12,7 and that

as a peace officer, Huff had authority to arrest defend-

ants. We must determine whether this is a correct

reading of Texas law.

It is true that game wardens may be commissioned as

peace officers under article 2.12(11) of the Texas Code

of Criminal Procedure. Furthermore, article 2.13 of the

Code of Criminal Procedure authorizes a peace officer

to “arrest offenders without warrant in every case

where he is authorized by law....” However, our anal-

ysis of Texas law does not end here. We must go on to

examine the statutory provisions dealing specifically

with employees of the Parks and Wildlife Department,

for in those statutes, we find clear language limiting the

law enforcement authority of game wardens. A game

warden’s warrant does not extend universally. Thus,

® Courts should not address Constitutional questions unless it

is necessary to do so. Therefore, we turn first to the state law

questions for resolution of this appeal.

7 Tex. Code Crim. Proc. Ann. art. 2.12(11) (Vernon 1977).

Texas Parks and Wildlife Code sec. 11.019(b)® states

that game wardens “have the powers, privileges and

immunities of peace officers while on state parks ... or

in fresh pursuit of those violating the law in a state

park....” (Emphasis added.)® The specific authority of

game wardens to effect arrests is set forth in Texas

Parks and Wildlife Code sec. 12.102. That section per-

mits game wardens “the same authority as a sheriff to

arrest ... in connection with violations of the laws

relating to game, fish, and birds.” (Emphasis added.)"°

See also Texas Parks and Wildlife Code sec. 13.109

(empowering peace officers commissioned under section

11.019 to enforce regulations governing parks and rec-

reation areas);!! Opinion of the Attorney General

® Tex, Parks & Wild. Code Ann. § 11.019(b) (Vernon 1976).

® The full text of section 11.019 is as follows:

§ 11.019. Employees as Peace Officers

(a) The director {of the Parks and Wildlife Department}

may commission as peace officers any of the employees

provided for in the general appropriations act.

(b) Employees commissioned under this section have the

powers, privileges, and immunities of peace officers while

on state parks or on state historical sites or in fresh pur-

suit of those violating the law in a state park or historical

site.

10 Section 12.102 reads in full:

§ 12.102. Power to Arrest

(a) An authorized employee of the department [of Parks

and Wildlife) has the same authority as a sheriff to arrest,

serve criminal process, and require aid in serving criminal

process in connection with violations of the laws relating to

game, fish, and birds. The department may receive the

same fees as are provided by law for sheriffs in misde-

meanor cases.

(b) An authorized employee of the department may ar-

rest without a warrant any person found in the act of

violating any law relating to game, birds, o fish.

1 The regulations may govern:

(1) the conservation, preservation, and use of state prop-

erty whether natural features or constructed facilities;

(1971, No. M-838) (authorizing game management offi-

cers of the Parks and Wildlife Department to assist in

enforcing provisions of the Antiquities Code of Texas,

Tex. Stat. Ann. art. 6145-9 [Vernon 19 }).??

Thus, the law enforcement authority of game ward-

ens is limited both geographically and functionally.

Game wardens have the powers of peace officers while

on state parks or in hot pursuit of those violating the

law in a state park. Parks and Wildlife Code sec.

11.019. This power presumably includes the authority

to arrest without warrant on probable cause pursuant

to article 14.03 of the Code of Criminal Procedure.

Moreover, a game warden’s law enforcement authority

extends in some cases outside of state park lands. Thus,

an employee of the Parks and Wildlife Department may

“enter on any land or water where wild game or fish

are known to range or stray” in order “[(t]o enforce the

game and fish laws of the state... .” Parks and Wildlife

Code sec. 12.103.1* However, not all transgressions are

(2) the abusive, disruptive, or destructive conduct of

persons;

(3) the activities of park users including camping, swim-

ming, boating, fishing, or other recreational activities;

(4) the disposal of garbage, sewage, or refuse;

(5) the possession of pets or animals;

(6) the regulation of traffic and parking; and

(7) conduct which endangers the health or safety of park

users or their property.

12 In Texas courts, the Attorney General’s opinions are not

binding authority; however, they are persuasive. Gonzales v.

State, 588 S.W.2d 355, 359 (Tex. Cr. App. 1979).

13 The right to enter enclosed land includes the power to do so

without the owner’s permission and without a search warrant

when a game warden knows that wild game or fish are likely to

have strayed onto the land. Opinion of the Attorney General

(1947, No. V-22). However, a game warden may not search

without warrant a house or dwelling, Opinion of the Attorney

General, supra; or a grain elevator, even when it was believed

to contain illegally killed deer. Opinion of the Attorney General

(1946, No. O-7047).

fair game for a warden: detection and prevention of

gaming law violations is the only law enforcement func-

tion which Parks and Wildlife employees are authorized

by the Code to perform outside of state park lands.

The Government argues that even if Huff's “normal

powers” were limited to gaming law violations, his stat-

utory status as peace officer gave him additional pow-

ers. They cite to article 14.03 of the Code of Criminal

Procedure, which provides that peace officers may ar-

rest without warrant “persons found in suspicious

places and under circumstances which reasonably show

that such persons have been guilty of some felony ... or

are about to commit some offense against the laws... .”

Article 14.03 is apparently an effort on the part of the

Texas legislature to codify the ever-shifting formulae

for describing circumstances which create probable

cause to effect a warrantless arrest. See, e.g., Lara v.

State, 469 S.W.2d 177, 179 (Tex. Cr. App. 1971) (where

officers had “probable cause” to suspect criminal activi-

ty, arrests were authorized under article 14.03), cert.

denied, 404 U.S. 1040, 92 S.Ct. 724, 30 L.Ed.2d 732

(1971). We have found no Texas cases construing article

14.03 in relation to the specific limitations of the author-

ity of game wardens set forth in the Parks and Wildlife

Code.*4 Thus, we are forced to roam into other statu-

14 In Gonzales v. State, 588 S.W.2d 355 (Tex. Cr. App. 1979),

the Court found illegal a warrantless search by game wardens

which revealed marijuana on defendants’ property. However,

the decision was based on constitutional grounds; the Court did

not reach the issue of how far a game warden’s statutory law en-

forcement authority extends outside of state parks. Neverthe-

less, it is interesting to note that the State sought to justify the

warden’s search on the basis of Parks and Wildlife Code sec.

12.103, which allows department employees to enter any land in

order to investigate gaming law violations, and not on the

grounds that the wardens had general law enforcement authori-

ty by virtue of their status as peace officers.

tory territory in search of clues to the proper construc-

tion of these Code provisions.

The Code Construction Act?® provides general rules

for the interpretation of statutes.'® Section 3.06 of the

Act states:

If a general provision conflicts with a special or

local provision, they shall be construed, if possible,

so that effect is given to both. If the conflict be-

tween the provisions is irreconcilable, the special

or local provision prevails as an exception to the

general provision, unless the general provision is

the later enactment and the manifest intent is that

the general provision prevail.

Thus, the Act adopts a long-standing rule for the con-

struction of statutes which are in pari materia. Stat-

utes are in pari materia when they relate to the same

person or class of persons, even though the statutes

contain no reference to each other. 53 Tex.Jur.2d Stat-

utes, sec. 186. When statutes are in pari materia, they

should be read together, and any conflicts should be

harmonized to give effect to all provisions of each stat-

ute. Jd. When statutes in pari materia conflict and can-

not be harmonized, the specific controls over the gener-

al. Id.

Turning to the statutes at issue, we find that article

14.03 of the Code of Criminal Procedure describes in

general terms the types of circumstances giving rise to

probable cause and thus justifying an arrest without

warrant. Section 11.019(b) of the Parks and Wildlife

Code states that game wardens “have the powers, priv-

ileges and immunities of peace officers while on state

parks....” Clearly, article 14.03 is in pari materia with

15 Tex. Rev. Civ. Stat. Ann. art. 5429b-2 (Vernon 1981).

16 The Code Construction Act is applicable to provisions of

the Code of Criminal Procedure. E.g. Ex Parte Harrell, 542

S.W.2d 169, 172 (Tex. Cr. App. 1976); Cuellar v. State, 521

S.W.2d 277 (Tex. Cr. App. 1975).

10a

section 11.019(b): both describe the powers of peace of-

ficers. In such a situation, the courts are instructed to

construe the statutes “so that effect is given to both.”

Code Construction Act, art. 5429b-2, sec. 3.06. Accord-

ingly, article 14.03 must be interpreted as describing

circumstances under which a game warden may arrest

without warrant on probable cause when the game

warden is a peace officer; that is, while he is on a state

park. Outside of state parks, however, Parks and

_ Wildlife Code, article 12.102 still controls: game ward-

ens may arrest with or without a warrant only in con-

nection with violations of the gaming laws.

This interpretation of the statutes is mandated as

well by the rule that a specific statute controls over a

general one. Article 2.12 of the Code of Criminal Proce-

dure provides a comprehensive list of city and state em-

ployees who are, or may be commissioned as, peace of-

ficers.17 Article 2.13 states that “it is the duty of every

17 Article 2.12 provides in full:

The following are peace officers:

(1) sheriffs and their deputies;

(2) constables and deputy constables;

(3) marshals or police officers of an incorporated city,

town, or village;

(4) rangers and officers commissioned by the Public Safe-

ty Commission and the Director of the Department of Pub-

lic Safety;

(5) investigators of the district attorneys’, criminal dis-

trict attorneys’, and county attorneys’ offices;

(6) law enforcement agents of the Alcoholic Beverage

Commission;

(7) each member of an arson investigating unit of a city,

county or the state;

(8) any private person specially appointed to execute

criminal process;

(9) officers commissioned by the governing board of any

institution of higher education, public junior college or the

Texas State Technical Institute;

(10) officers commissioned by the Board of Control;

(11) law enforcement officers commissioned by the Parks

and Wildlife Commission;

lla

peace officer to preserve the peace within his jurisdic-

tion... .” (Emphasis added.) The jurisdictional limits of

peace officers are set forth in the statutory provisions

dealing specifically with the powers and duties of the

individuals listed in article 2.12.

For instance, article 2.12(12) lists as peace officers

“airport security personnel.” Article 46g of the Munici-

pal Airports Act?® provides that any peace officer com-

missioned under the Act shall have all of the powers

and duties of a peace officer “while he is on the proper-

ty under the control of the airport, or in the actual

course and scope of his employment.” (Emphasis

added.) Thus, airport security personnel have the pow-

er to act as peace officers, including the authority to

arrest without warrant on probable cause pursuant to

article 14.03 of the Code of Criminal Procedure. How-

ever, they have this power only when they are on air-

port property or otherwise engaged in airport security

functions.

Similarly, article 2.12(9) of the Code of Criminal Pro-

cedure lists as peace officers “officers commissioned by

the governing board of any state institution of higher

learning... .” Section 51.203 of Title 3, Higher Educa-

tion,’® states that an officer commissioned under that

section is vested with all of the powers and privileges of

peace officers “while,on the property under the contro!

and jurisdiction of the institution of higher education

or otherwise in the performance of his duties.” (Empha-

(12) airport security personne! commissioned as peace of-

ficers by the governing body of any political subdivisicn of

this state that operates an airport served by a Civil Aero-

nautics Board certified air carrier;

(13) municipal park and recreational patrolmen and secu-

rity officers; and

(14) security officers commissioned as peace officers by

the State Treasurer.

18 Tex. Rev. Civ. Stat. Ann. art. 46d-1 et seg. (Vernon 1981).

19 Tex. Civ. Stat. Ann. tit. 3, § 51.203 (Vernon 1972).

12a

sis added.) Accordingly, campus security personnel

may act as peace officers only on university property or

in the course of their employment as campus security

guards.

If we read article 14.03 of the Code of Criminal Pro-

cedure in the manner urged by the Government, article

14.03 would give all peace officers listed in article 2.12

the authority to arrest at any time and any place upon

suspicion that any offense has been committed, not-

withstanding the specific territorial and substantive

limitations on their authority set forth in statutory pro-

visions applicable to each category of peace officer.

Such a reading is possible only if it can be demonstrated

that “the manifest intent is that the general provision

prevail” over the specific provisions. Code Construction

Act, art. 5429b-2, sec. 3.06. We have found nothing in

the statute or in the case law?® which indicates that the

general description of circumstances giving rise to

probable cause for warrantless arrests set forth in arti-

cle 14.03 was intended to repeal all specific territorial

and/or substantive limitations on peace officers’ law en-

forcement authority set forth in sections of the codes

and statutes dealing with the powers and duties of the

individual state and city employees listed in article

2.12. Accordingly, the interpretation compelled by the

Code Construction Act is that individuals listed in arti-

cle 2.12 have the powers and duties of peace officers,

including the power to make warrantless arrests and

20 Green v. State, 490 S.W.2d 826 (Tex. Cr. App. 1973), cited

by the Government, is not dispositive. In that case, the Court

held that a city policeman had the authority to arrest a person

who had been observed driving while intoxicated inside of the

city limits but was finally arrested outside of the city limits.

Green v. State provides no answer to the question whether a

statute speaking in general terms about the power to arrest

should be read as overruling specific statutory limitations on the

types of offenses e.g., gaming law violations, for which a state

employee may make arrests.

13a

the duty to keep peace, on/y when acting within their

respective jurisdictional limits.

In some instances, the jurisdiction of peace officers is

narrowly limited, as in the case of airport security per-

sonnel or university campus guards. For other catego-

ries of peace officers, such as Texas Rangers, the statu-

tory grant of law enforcement authority is quite

broad.*! But for all article 2.12 peace officers, law en-

forcement jurisdiction is defined and limited by statute.

In the case of game wardens, article 11.019(b) of the

Texas Parks and Wildlife Code states that they have

the power to act as peace officers while on state parks.

In addition, game wardens may enter onto any land or

water, and may make arrests, in connection with viola-

tions of the gaming laws. Beyond these enumerated

powers, however, game wardens have no more law en-

forcement authority than any other private citizen of

the state of Texas.?? In sum, we do not read the Texas

21 Tex. Civ. Stat. Ann. chapter 5, Department of Public Safe-

ty, art. 4413(11) (Vernon 1976) defines the jurisdiction and au-

thority of Texas Rangers. Article 4413(11)(4) states that as

peace officers, Texas Rangers have the same powers and duties

as sheriffs; except that, unlike sheriffs, Rangers “shall be au-

thorized to make arrests and execute all process in criminal

cases in any county in the state.” (Emphasis added.)

22 Of course, an employee of the Parks and Wildlife Depart-

ment may, like any other private citizen, effect a citizen’s ar-

rest. A private citizen may arrest without warrant a person who

has committed a felony or offense against the peace in the ar-

resting person’s presence or within his or her view. Texas Code

of Criminal Procedure § 14.01(a) (Vernon’s 1977).

In Sanchez v. State, 582 S.W.2d 813 (Tex. Cr. App. 1979),

cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728

(1980), two United States Border Patrol agents detained appel-

lant after noticing him speeding and subsequently finding him

stopped at the side of the road, emanating a strong odor of alco-

hol. The Court held that although the agents lacked authority to

arrest or detain except for violations of the immigration laws,

the detention of appellant was nevertheless a legal citizen's ar-

l4a

statutes as vesting in a game warden cosmic arresting

authority.

Defendants’ Arrests

None of the events which led to the arrests of these

defendants took place in a state park. Game warden

Huff testified that at the time he first spotted the

tanker-truck driven by defendant Mungia, Huff and

Saenz were sitting on a hill on the Rosa Ranch, approx-

imately 12.8 miles north of Rio Grande City and 100

yards off Highway 3167.2 When Huff spotted the

tanker-truck being driven along a private ranch road on

the Rosa property without lights, he thought that crim-

inal activity might be afoot. He did not, however, sus-

rest for an offense against the peace (public drunkenness) pur-

suant to article 14.01. /d. at 815.

In the instant case however, the Government has not argued

that the detention and arrest of appellants can be justified as a

citizen’s arrest under article 14.01. Indeed, no such argument

can be made, since it is not contended that driving without

lights on a private road is even illegal, much less a felony or an

offense againt the peace. Whatever suspicions of criminal activi-

ty may have been harbored by Huff, he did not testify that a fel-

ony was actually committed by any of the applicants in his pres-

ence or within his view. Compare Sanchez v. State, supra;

Romo v. State, 577 S.W.2d 251 (Tex. Cr. App. 1979) (member of

Buffalo Springs Lake Patrol could effect valid citizen’s arrest

outside of his jurisdiction when he personally observed defend-

ant’s erratic, drunken driving); Heck v. State, 507 S.W.2d 737

(Tex. Cr. App. 1974) (private security guard and off-duty police

officer could effect valid citizen’s arrest of individual who they

observed to be drunk in a public place); McEathron v. State,

163 Tex. Cr. R. 619, 294 S.W.2d 822 (1956) (airforce captain

who observed defendant driving erratically and drinking from a

bottle could effect a valid citizen’s arrest).

23 t(uff and Saenz were authorized to be on the Rosa Ranch

without the owner’s permission or a search warrant if they

knew that wild game were likely to have strayed onto the land.

Parks and Wildlife Code sec. 12.103; Opinion of the Attorney

General, supra at n.5.

l5a

pect that the truck was in any way connected with or

involved in violations of the gaming laws. Rather, he

was concerned that the truck might either be stolen or

carrying a load of marijuana.?4 It was on this basis, and

this basis alone, that Huff stopped the truck, arrested

Mungia, and searched the tanker-trailer. Huff, as a

game warden commissioned by the Parks and Wildlife

Department, had no authority to stop this or any other

vehicle outside of state park grounds for any reason

other than suspected violations of the gaming laws. Be-

24 In the pretrial hearing concerning suppression of the evi-

dence found as a result of Huff's stop of the tanker-truck, the

following exchange between the district judge and Huff

transpired:

THE COURT: You didn’t initially make the stop [of the

tanker-truck] in connection with any purported violation of

game laws?

WITNESS HUFF: No, sir.

THE COURT: Why did you say you stopped it?

WITNESS HUFF: Because the vehicle was coming out

of a pasture without any lights.

THE COURT: Okay.

WITNESS HUFF: I had prior knowledge that there had

been some stolen vehicles in that area. An 18-wheeler, for

example. And also one thing I didn’t say.

WITNESS HUFF: And one other thing | didn’t say, is

that I had been talking with CPO (Customs Patrol Officer)

Bill Matthews, say, about two days prior. We were dis-

cussing drug trafficking. He was discussing it with me and

telling me to be sure and keep my eyes out for any kind of

large vehicles, say, like 18-wheelers or anything; that they

were using these types of vehicles to haul marijuana in.

THE COURT: And that is what led you to stop this

vehicle?

WITNESS HUFF: Correct.

THE COURT: Okay. It had nothing to do with a game

law violation?

WITNESS HUFF: No, sir, it didn’t.

MR. MEDRANA [Attorney for the Government]: That

statement is included in your statement; is that correct?

WITNESS HUFF: That is correct.

16a

cause the stop of the tanker-truck and the arrest of

Mungia were in no way connected with actual or sus-

pected gaming law violations, the stop and arrest were

illegal.

Similarly, the stop and arrests of Garcia and Barrera

were unlawful. Huff was not investigating gaming law

violations when he stopped the vehicle in which Garcia

and Barrera were travelling. Rather, the trial court

found that in stopping the pickup truck, Huff relied on

his knowledge of the contents of the tanker-truck, and

the fact that the pickup truck travelled without lights

upon the same ranch road from which the tanker-truck

had recently emerged. Because the stop and arrests by

the game warden were not based on actual or suspected

gaming law violations, the stop and arrests were illegal.

Having found that defendants were illegally arrested,

it follows that the evidentiary fruits of those unlawful

arrests should not have been introduced at defendants’

trial. The Government contends, however, that even if

the arrests in this case were illegal, the fruits of these

arrests ought not be suppressed if game warden Huff

believed in good faith that he had general law enforce-

ment authority.

As we have stated, the legality of these arrests by a

Texas game warden is determined by state law. Ker v.

State of California, 374 U.S. 28, 37, 83 S.Ct. 1623,

1631, 10 L.Ed.2d 726 (1963); U.S. v. Di Re, 332 U.S.

581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210 (1947); U.S. v.

Ible, 630 F.2d 389, 392-393 (5th Cir. 1980); U.S. v.

Fossler, 597 F.2d 478, 482 n.3 (5th Cir. 1979); U.S. v.

Lipscomb, 435 F.2d 795, 798 (5th Cir. 1970), cert. de-

nied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331

(1971). Under Texas law, an arresting officer’s good

faith does not suffice to purge an unlawful arrest of its

illegality insofar as the exclusion of evidence is con-

cerned. Thus in Green v. State, 615 S.W.2d 700 (Tex.

Cr. App. 1980), cert. denied, __ U.S. , 102 S.Ct.

17a

490, 70 L.Ed.2d 258 (1981), the court excluded evidence

obtained as the fruit of an arrest made pursuant to an

invalid arrest warrant. The majority did not accept the

argument urged in dissent?® that the evidence should

be admissible by virtue of a good faith exception such

as that set forth in U.S. v. Williams.® It is not this

Court’s role to engraft a “good faith” exception onto

Texas jurisprudence. Thus in this case, where an arrest

was unlawful under Texas statutes, the game warden’s

good or bad faith can have no bearing on our decision to

exclude the illegally obtained evidence.

Conclusion

The district court erred in finding that the

warrantless arrests of defendants were authorized un-

der Texas law,?? and in failing to exclude the evidence

obtained by virtue of those unlawful arrests. Accord-

ingly, the convictions of appellants Mungia, Garcia and

Barrera are

REVERSED.

25 Green v. State, supra at 712.

26 622 F.2d 830, 840-47 (5th Cir. 1980) (en bane), cert. denied,

449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981).

27 Because we find that defendants’ arrests were illegal under

state law, we do not reach the question as to whether the dis-

trict court erred in finding that the arrests were supported by

probable cause; nor do we decide whether there was sufficient

evidence to sustain the convictions of appellants Garcia and

Barrera.

18a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 19

No. 81-2115

D.C. Docket No. CRIM-80-00568

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

versus

VICTOR DOMINGO GARCIA, RUBEN BARRERA-SAENZ

and ADAN MONTOLLA MUNGIA,

DEFENDANTS-APPELLANTS.

Appeal from the United States District Court for the

Southern District of Texas

Before BROWN, GOLDBERG and GEE, Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on ap-

peal from the Urited States District Court for the

Southern District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOPF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, reversed.

May 28, 1982

ISSUED AS MANDATE: DEC 30 1982

OP-JDT-9

19a

APPENDIX C

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

DECEMBER 20, 1982

No. 81-2115

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v~.

VicTOR DOMINGO GARCIA, RUBEN BARRERA-SAENZ

AND ADAN MONTOLLA MUNGIA,

DEFENDANTS-APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF TEXAS

ON PETITION FOR REHEARING

Before BROWN, GOLDBERG and GEE, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing, 676

F.2d 1086, filed in the above entitled and numbered

cause be and the same is hereby DENIED. See

Christopher v. State, No. 61, 679, slip op. at 3 (Tex.

Crim. App. Oct. 20, 1982) (en bane).

20a

APPENDIX D

RULING OF THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

ON DEFENDANTS’ MOTION

TO SUPPRESS EVIDENCE

January 7, 1981

MR. KAZEN: That is correct, Your Honor. We have

no witnesses.

MR. DUVALL: Same announcement.

THE COURT: Why didn’t you tell me this last Mon-

day and I wouldn’t have brought you here at 7:30. I did-

n’t anticipate you would be done for two or three hours.

MR. DUVALL: We didn’t know how long the Gov-

ernment was going to go.

THE COURT: There is some effort to my madness.

We needed this courtroom. All right, Gentlemen, let

me explain as would regard the motion of the defend-

ants in connection with the matter of whether or not a

Parks and Wildlife Service Deputy Game Warden has

the authority to arrest. I believe that the statute, that

is, 11.019 and 11.020, limits the authority of the deputy

game wardens. However, that authority is enlarged in

Article 2.12, in which they are given authority, and se-

quence thereto, to be considered as peace officers and

fully authorized to conduct themselves with any mat-

ters involving violations of law. That is is the ruling of

the court as would regard that issue.

As would regard what I consider to be the more deli-

cate issue of the arrest and subsequent search, I wish

to make the following findings in that regard, which

will later be reduced to writing for all purposes that

any side wish to use as far as this matter is concerned:

I am of the opinion that the evidence shows, to my

satisfaction, that the officer in question, that is, the

deputy game warden, had prior to this time information

regarding thefts of trucks involving 18-wheelers and

2la

the like. And that was the evidence. And had informa-

tion regarding activities involving narcotics traffic.

I further find that on the occasion in question there

was unusual conduct, in that the parcel of land in ques-

tion is one upon which there were no oil wells, no dairy

farms, and to the knowledge of the officer would not

have any reason to have any tank trucks.

I further find that the hour in question leads to the

conclusion there was unusual conduct, in that it was at

night; that the road in question was well known by the

officer, who has testified as being a very rough road,

and it would be very unusual for any vehicle of this

type to drive without lights on; that all of this, together

with the information that he had, as would regard the

area and what in my judgment constitutes unusual con-

duct, would constitute probable cause as would regard

Mungia. As would regard the other persens, my recol-

lection of the evidence is, that there was a strong odor

of marijuana, but those circumstances also dictate in

my judgement [sic] that probable cause existed.

And, hence, all motions to suppress are hereby ex-

pressly denied. Every defendant’s respective exception

will be preserved in full. Anything else at this time,

gentlemen?

MR. MEDRANO: Nothing further from the United

States, Your Honor. |

THE COURT: Anything else at this time?

MR. DUVALL: Nothing from Defendant Barrera.

* * KK *

THE COURT: All right. Now, Gentlemen, as would

regard the MOTION TO SUPPRESS, the court made

some findings of record as would regard Mr. Mungia,

and stated them in the record at the time I denied the

motion. The court failed of record, although he did ex-

pressly deny the motion as would regard the other de-

fendants, to make such findings. And I want the record

to show that the findings justified in the court’s mind

22a

probable cause as would regard the tank truck; that it

be made a part of the record as would regard the mat-

ter involving the pickup truck that came from the same

area; that in addition thereto, the court would add find-

ings as would regard the area in which the pickup truck

emerged from. The fact that it did not have lights and

the additional information that had been obtained by

the officer when he searched the tank truck, all of this,

in the court’s mind, constitute probable cause as would

regard the stop and the arrest of the persons in the

pickup truck which numbered three, two of whom are

in trial at this time: Victor Domingo Garcia and Ruben

Barrera-Saenz. Your exceptions to the court’s ruling

are preserved. Anything else at this time, Gentlemen?

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.