Appeal from the United States District Court for the District of Arizona. D.C. No. CR-89-181-TUC-ACM. Alfredo C. Marquez, District Judge, Presiding.
Before: William C. Canby, Jr. and Alex Kozinski, Circuit Judges, and Wm. Flemming Nielsen,*fn* District Judge.
Gaylord James Miguel appeals his conviction for possession of marijuana with intent to distribute and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1); 841(b)(1)(B)(vii) and 846. Appellant argues that the district court erred in denying his motions to suppress because federal agents lacked probable cause to arrest him and the Miranda warnings read to him did not adequately inform him of his right to appointed counsel.
In the pre-dawn hours of April 23, 1989, electronic sensors monitored by the United States Border Patrol were activated along the Arizona/Mexico border. The sensors indicated that one or two vehicles were driving back and forth across the border in an area where there is no official border crossing station. Border Patrol agents Delores Pena and Isaac Kimzey responded by driving south on Indian Route 21 to investigate. A short time later Pena and Kimzey spotted a blue and white pickup truck with a camper shell towing a green and white pickup truck traveling north on Route 21. When the agents turned around to follow the trucks, the trucks stopped and four people jumped out and ran into the desert. After Pena discovered bundles of marijuana inside the blue pickup, she summoned agent James Gould, an expert tracker, to help pursue the suspects.
About an hour later, just after sunrise, Gould arrived and began following footprints left by the suspects. At one point, a single set of tracks diverged from the others and led Gould to codefendant Jose Albert Zepeda, who is Miguel's father.*fn1 Gould and other federal agents continued tracking the remaining three sets of prints to an area where two of the three split off. The trail led to two other suspects, codefendant Florentino Carrillo-Monteon and Miguel; the fourth suspect was never found. The officers found a loaded 9 mm pistol in the left back pocket of Miguel's pants.
Testimony at trial disclosed that early in the morning of April 23 Zepeda called Miguel, an auto mechanic, and asked him to drive to an area near the border to assist Zepeda, whose truck had broken down. A defense witness testified that Zepeda and his accomplices transferred marijuana from the disabled truck to Miguel's truck, but Miguel testified that he never saw the marijuana because it was dark and he was drunk and standing too far from the truck.
After his arrest, Miguel was taken to the Drug Enforcement Administration office in Tucson, where special agent Julius Anguiano of the U.S. Customs Service read Miguel his Miranda rights. Miguel waived his rights under Miranda and gave statements to Anguiano related to his activities with Zepeda on April 23. The post-arrest statements conflicted with Miguel's trial testimony and the prosecution used them to impeach Miguel's testimony.
Miguel claims the agents lacked probable cause to arrest him because the tracking procedure they employed was unreliable. The district court, however, heard testimony and concluded that the agents had probable cause. Implicit in its conclusion is the finding that the tracks the agents followed led from the abandoned trucks to Miguel.
We have no basis for disturbing the district court's finding and conclude, therefore, that it did not err in denying ...