P. v. Gutierrez

Filed 2/7/08 P. v. Gutierrez CA4/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed.

Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Armando Gutierrez appeals the trial courts denial of his suppression motion. He contends the trial court should have suppressed all evidence obtained during a traffic stop, because he was detained without a reasonable suspicion of criminal activity.

FACTUAL AND PROCEDURAL HISTORY

On May 22, 2003, Oscar Casares, a border patrol agent, initiated a traffic stop of the vehicle defendant was driving because he suspected illegal alien smuggling. As he approached, he was unable to see inside the cargo area where illegal aliens could be hidden because it was covered by canvas. When he got close enough to speak to defendant through the open window on the drivers side, he detected the odor of what he believed to be marijuana coming from the vehicle.^[1] Because the rear cargo area of the vehicle was covered with a canvas, Agent Casares sought and obtained defendants consent to look inside the vehicle. When he opened the door, Agent Casares noticed an extremely strong odor of marijuana. In the cargo area, underneath the canvas, he found two large duffel bags and a white plastic bag. Agent Casares testified he had seen marijuana packaged inside duffel bags many times. Victor Altamirano, another border patrol agent who is a canine handler, arrived on the scene during the stop to assist. Agent Altamirano began an investigation of the vehicle with his dog. The marijuana weighed 222 pounds, was packaged in 58 bundles, and had an approximate street value of $177,000.

Citing the Fourth Amendment prohibition against unreasonable searches and seizures, defendant filed a motion to suppress evidence of the agents observations of the vehicle, defendants interactions with the agents, and the marijuana found inside the vehicle. Agent Casares and Agent Altamirano testified at the hearing on the motion on January 12, 2005. On January 21, 2005, the trial court denied defendants motion finding Agent Casares had sufficient cause to stop the vehicle to investigate whether it was involved in alien smuggling. Although the trial court also found there was probable cause to search the vehicle once Agent Casares smelled marijuana, defendant does not directly challenge this portion of the trial courts ruling.

On November 13, 2006, defendant pled guilty to a violation of Health and Safety Code section 11359, unlawful possession of marijuana for sale (count 1), and a violation of Health and Safety Code section 11360, subdivision (a), transportation of more than 38.5 grams of marijuana (count 2). Counsel stipulated to the transcript of the preliminary hearing as the factual basis for the guilty plea. On January 26, 2007, the trial court sentenced defendant to the upper term of three years on count 1 and the upper term of four years on count 2. However, the court suspended execution of the sentence on count 2 and placed defendant on formal probation for three years based on various terms and conditions. In addition, the court stayed the three-year sentence on count 1 pursuant to Penal Code section 654.

DISCUSSION

Defendant contends Agent Casares did not have reasonable suspicion of alien smuggling when he made the challenged traffic stop. He claims the vehicle he was driving was not suspicious because it did not have multiple occupants or occupants who appeared to be Mexican nationals; he did not attempt to evade the agent and his vehicle did not appear to be heavily loaded. Defendant also contends Agent Casares unreasonably relied on the proximity of his vehicle to a taxi traveling in front of him and another vehicle following behind him to conclude the three vehicles were suspiciously traveling in tandem.

The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

Consistent with the Fourth Amendment, roving patrols by border agents near the Mexican border have authority to stop and briefly detain vehicles when there is reasonable, articulable suspicion that a particular vehicle may contain aliens who are illegally in the country. (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 881.) In other words, investigatory stops of vehicles as part of the border patrols traffic-checking operations, which are calculated to prevent inland movement of illegal aliens and smugglers, may not simply be random, but may be justified on facts that do not constitute probable cause to arrest or to search for contraband or evidence of a crime. (Ibid.) In this regard, a border patrol agent has authority to question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause. (Id. at pp. 881-882.)

Factors relevant to determining whether there is reasonable suspicion for the border patrol to stop a vehicle include: (1) the characteristics of the area in which the vehicle is encountered; (2) the proximity of the vehicle to the border; (3) traffic patterns on the particular road and information about previous illegal border crossings in the area; (4) whether a certain kind of vehicle is frequently used to transport contraband or to conceal illegal aliens; (5) erratic driving or an obvious attempt to evade authorities; and (6) a heavily loaded vehicle or an unusual number of passengers. (United States v. Brignoni-Ponce, supra, 422 U.S. at pp. 884-885.) In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling. (Id. at p. 885, citing Terry v. Ohio (1968) 392 U.S. 1, 27.) [W]hen used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion. (United States v. Cortez (1981) 449 U.S. 411, 419.) In other words, conduct that may seem innocuous when viewed in isolation may properly be considered in arriving at a determination that reasonable suspicion exists. (U. S. v. Sokolow (1989) 490 U.S. 1, 9-10.) For example, vehicles driving together in tandem would not alone be sufficient to establish reasonable suspicion, but may be enough when combined with other facts. (See, e.g., United States v. Larios-Montes (9th Cir. 1974) 500 F.2d 941, 943-944.)

Contrary to defendants contentions, a combination of factors supported the agents decision to stop defendants vehicle to check for smuggling of illegal aliens. First, the testimony of the agents as a whole supported the trial courts factual finding that defendants vehicle was traveling in a known corridor for smuggling aliens. Second, Agent Casares had eight years of training and work experience with the border patrol in the detection of illegal immigrants. He was working closely by radio and exchanging information with Agent Altamirano, who had more than seven years of experience with the border patrol. Third, Agent Casares offered convincing testimony explaining a logical progression of his suspicion that the taxi traveling in front of defendants vehicle contained illegal immigrants, to reasonable suspicion that defendants vehicle might also be involved in alien smuggling.

Agent Casares testified he was traveling southbound on Highway 78 in a marked vehicle on his way from his station in Blythe to a patrol assignment near the border when he noticed a blue minivan taxi traveling northbound. It was unusual to see a taxi traveling that far north in an isolated area because there were no local taxi companies providing service at that time. Taxi services were located a significant distance away. Based on his experience and training, he was aware that illegal immigrants use taxis to come across [the border] when they dont have a smuggler doing their arrangements. Agent Casares had also detained taxis that far north of the border and found illegal immigrants traveling inside. In addition, a minivan is large enough to hide a number of illegal aliens and Agent Casares testified the minivan had dark tinted windows, which could be used to avoid detection by law enforcement. Because of the tinted windows, Agent Casares was only able to see silhouettes of people inside the taxi. Agent Casares also noticed the vehicles were traveling closely together.

Agent Casares testified he turned his vehicle around after observing the taxi traveling northbound followed closely by two other vehicles. He also made radio contact with Agent Altamirano, who was also traveling southbound in a separate, unmarked vehicle. Agent Casares asked Agent Altamirano to take a closer look at the taxi. Agent Altamirano then stopped on the side of the road to wait for the taxi to go by him. A couple minutes later, Agent Altamirano saw the taxi pass by with three or four people inside. Agent Altamirano also noticed the taxi was being closely followed or tailgated by two sport utility vehicles (SUVs)the red Isuzu Rodeo driven by defendant and then a black Ford Explorer. Because they were traveling so closely behind one another, Agent Altamirano concluded the three vehicles were traveling together in tandem.

Based on prior experiences, both agents were aware that two or more vehicles traveling closely together in tandem is indicative of alien smuggling. Both agents testified this is one of the countersurveillance driving methods used by smugglers to increase their success rates. If one vehicle is stopped by authorities, the others may have an opportunity to keep going and get away. With these reasons for suspicion in mind, Agent Altamirano followed the vehicles and attempted to pass the two SUVs. He wanted to get behind the taxi to run the license plate number and obtain relevant information about it. However, he had trouble doing so because the vehicles were traveling so closely together. He then contacted Agent Casares by radio to advise him of this additional cause for suspicion.

Finally, because Agent Altamirano ran the plates while he was preparing to initiate a traffic stop of the taxi, Agent Casares learned that the red Isuzu Rodeo was a rented vehicle. Based on prior experience, Agent Casares was aware alien smugglers like to use rental vehicles in case they are caught so they do not suffer a vehicle loss and they cannot be connected to the vehicle by direct ownership.

Defendant contends Agent Altamirano reported to Agent Casares prior to the stop that the occupants of the taxi had been cleared. As a result, he contends any suspicion of his vehicle had been eliminated prior to the stop. We disagree. It is clear from the record that Agent Altamirano eventually succeeded in effecting a traffic stop of the taxi to inquire about the status of the occupants and Agent Casares knew the taxi had been stopped. It is also clear the two agents were in direct contact with each other by radio and were exchanging information. However, it is unclear from the record exactly what, if anything, Agent Casares knew about the status of the occupants of the taxi before he stopped defendants vehicle. Nor is it clear from the record that a brief, investigatory stop of the taxi to question the occupants about their status would have been enough to eliminate all of the other reasons the agents were suspicious of alien smuggling. In an area known for alien smuggling, it was still unusual to see vehicles traveling in tandem despite a real good stretch for passing. The vehicles were large enough to carry a significant number of hidden occupants, and the cargo area of defendants vehicle was covered by canvas. Thus, the circumstances suggest it is possible the taxi was simply a countersurveillance measure taken to protect the payload by distracting attention from the red Isuzu Rodeo and the black Ford Explorer. In addition, Agent Altamirano testified he knew the border patrol checkpoints on the other two possible routes were open, making this particular highway an easy route to circumvent those checkpoints.

In sum, the totality of information available to Agent Casares when he stopped defendants vehicle was enough to constitute reasonable suspicion of alien smuggling. The trial courts factual findings in this regard are supported by substantial evidence. Based on our independent judgment, we conclude that the stop of defendants vehicle was reasonable under the Fourth Amendment. We therefore agree with the trial courts decision to deny defendants motion to suppress.

DISPOSITION

The judgment is affirmed.

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

MILLER

J.

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^[1] Agent Casares testified he had been cross-trained in narcotics trafficking, was familiar with the odor of marijuana, and had seized a significant amount of it on prior occasions.