Unpublished Disposition, 902 F.2d 42 (9th Cir. 1988)

MEMORANDUM^** 

Armando Urrea appeals his conviction, following a conditional guilty plea, for possession with intent to distribute over 100 kilograms of marijuana. Urrea contends that the district court erred in refusing to suppress several bales of marijuana discovered in a van Urrea had been driving. Urrea argues that the police did not have founded suspicion to make what Urrea describes as an investigatory stop and also that no probable cause existed to support the warrantless search and seizure.

We have jurisdiction under 28 U.S.C. § 1291 and review de novo the denial of a motion to suppress evidence. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988). Whether founded suspicion justified an investigatory stop and a finding of probable cause supported a warrantless search and seizure are also specifically subject to de novo review. Id. (founded suspicion); United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989) (probable cause).

FACTS

On March 13, 1988, Park Service Ranger Phil Selleck was doing surveillance in Organ Pipe National Monument in cooperation with other federal law enforcement officials in an anti-drug smuggling project. He stopped Urrea, who was driving an empty van about 150 feet north of the United States-Mexico border in a remote, unsettled, desert area west of Lukeville, Arizona, for not having a park permit. Urrea told Selleck he was going to Quitobaquito Springs, about five miles west of the stop location. Selleck advised United States Customs Special Agent John Mallamo to keep an eye out for the van and reported Urrea's stated destination. Two agents who were sitting at Quitobaquito Springs until 11 a.m. later told Mallamo that they did not see Urrea there, nor did they remember passing him on their way back to Lukeville (about a 25 minute drive).

Mallamo saw the van arrive in Lukeville at about 12:45 p.m. After Urrea parked and entered a general store, Mallamo and another agent looked through the van's rear windows and saw a carpet-covered cargo. Mallamo followed the van as it left Lukeville. A registration check showed that Jose Valenzuela had purchased the van in Sonorita, Sonora, Mexico. United States Customs Agent Jim Cherry heard the registration report and recognized the name Jose Valenzuela and the van's license plates. He advised Mallamo that the van had been suspected as the intended recipient of 500 pounds of marijuana seized near Ajo, Arizona in November 1987. Cherry drove to the area where Selleck had stopped the van. After a search, he found tire and foot tracks indicating that several people had crossed the border and loaded something into a vehicle about four miles west of the point where Selleck had stopped the van. The tire tracks were of the same broad type as the van tires.

With this information, Mallamo followed the van from Lukeville toward Tucson. En route, Urrea stopped four times and made telephone calls. He finally drove to a convenience store in Tucson, where two persons in an automobile met him. One of the two, Enrique Cruz-Hernandez, drove the van away, while Urrea departed in the automobile with the other, German Dominguez-Elias.

Mallamo followed Cruz-Hernandez to a private residence in Tucson and parked in its driveway. After Cruz-Hernandez went into the house, Mallamo and another agent called him out of the house and arrested him. A pat-down search revealed a handgun but no van keys. Mallamo testified that he believed the keys were in the vehicle.

Mallamo then shined a flashlight through the van's rear windows, seeing the carpet-covered cargo but also noting an exposed two-inch strip of cellophane wrapping. He could see that the material inside the cellophane was "brownish-greenish" in color and "appeared to be like straw-type stuff." Mallamo often had seen marijuana wrapped this way and concluded the cargo was marijuana. He opened the unlocked door on the driver's side of the van, smelled marijuana, and searched the vehicle, finding several bales of marijuana. He advised the surveillance team following Urrea and Dominguez-Elias to stop their car and arrest them.

DISCUSSION

Urrea contends that the customs agents lacked founded suspicion to "stop" the van. Urrea has not met his initial burden of showing that a stop occurred. Because the customs agents waited until the driver had parked and exited the van before approaching it, they did not "stop" the van. We need make no "founded suspicion" inquiry.

Urrea argues that the van's warrantless search does not meet the criteria for the automobile exception to the warrant requirement. Law enforcement officials may search a vehicle if they have probable cause to believe it contains contraband or other evidence of illegal activity. California v. Carney, 471 U.S. 386, 392 (1985). Based on the facts recited above, Mallamo had probable cause to search the van. Indeed, he was commendably cautious in continuing his surveillance of the van until he had gained additional information.¹ 

The district court ordered Urrea to pay a special assessment under 18 U.S.C. § 3013. This court has found that such assessments violate the Constitution's origination clause. United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). We remand to the district court to vacate the special assessment.

CONCLUSION

The district court did not err in admitting the marijuana into evidence. The conviction is AFFIRMED. The order to pay the special assessment is REVERSED and REMANDED.