# Petition — United States v. Garcia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0650%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 462 U.S. 1127 ## Text FILLED 82-1549 MAR 19 1963 é( Lintiinb°1* 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 TD on 00s 00's06 b-s00 5s cata vet nt } ak l 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) IV 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 Vv 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. 3 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). 4 152-153). 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- 5 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 6 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). 7 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)) 8 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). 9 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. 10 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 11 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- 12 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. 13 (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. 14 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 15 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). 16 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- 17 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 18 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). 19 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. 20 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 21 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. 22 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. 23 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. 24 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 la 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. 2a 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 3a 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. 4a 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. 5a 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). 6a 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; 7a (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). 8a 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. 9a 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? --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0650%3A1. Public record. Not legal advice.