P. v. Guerrero
Filed 9/23/13 P. v. Guerrero CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FABIAN GUERRERO,
Defendant and Appellant.
D063263
(Super. Ct.
No. JCF27264)
APPEAL from
a judgment of the Superior Court
of
County, William D. Lehman, Judge. Affirmed.
Stephen M.
Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Stephanie H.
Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Following
the denial of his motion to suppress
evidence under Penal Code section 1538.5, Fabian Guerrero entered a plea of
no contest to possession of marijuana for sale (Health & Saf. Code,
§ 11359). The remaining counts were
dismissed. Guerrero was placed on
probation on certain terms and conditions.
Guerrero
appeals contending the trial court erred in denying his motion to suppress
evidence. We find the trial court
properly denied the motion to suppress and affirm the conviction.
STATEMENT
OF FACTS
The facts
we address here are taken from the evidentiary
hearing on the motion to suppress evidence.
On November 22, 2010, Guerrero and a
female passenger were stopped at a Border Patrol checkpoint on Highway 86 in Imperial
County. When Agent Anderson approached the car,
Guerrero immediately volunteered that they were U.S.
citizens. The agent noted that Guerrero
was seated in an unnatural position. He
was rigid, had an extremely tight grip on the steering wheel and appeared
fixated on looking at the side mirror of the car. Agent Christoffels and her dog were
approaching Guerrero's car from that side and could be seen by Guerrero in the
mirror.
Agent Anderson
asked Guerrero if the car was his.
Guerrero appeared distracted and hesitated before telling Anderson
that the car was his and that he had possessed it for three months. Guerrero could not remember where he
purchased the car.
Anderson
asked to see the passenger's passport.
The passenger had difficulty producing the passport because her hands
were shaking so badly.
About that
time, Agent Christoffels advised Agent Anderson that the dog had alerted on
Guerrero's car and asked Anderson
to send the car to the secondary inspection point.
Agent
Christoffels testified about her duties and training as a canine handler. She testified she had been a canine handler
for three years and that she had worked with this dog, Kelly, for the entire
time. She testified about her training
and repeated certification of both her and the dog during the past three years.
Christoffels
testified that when Guerrero stopped at the secondary position he and the
passenger got out of the car and sat on a bench. The agent asked Guerrero for permission to
search the car and to have the dog further sniff the car. Guerrero consented to the search.
Christoffels
searched the car for both humans and contraband as the dog had been trained to
alert to the presence of both. The
subsequent search revealed 114 pounds of marijuana hidden in a false container
in the dashboard and the gas tank as well as packages found in the spare tire.
After
hearing the evidence and argument of counsel the trial court found the
testimony of the agents to be credible.
The court found that Guerrero had voluntarily consented to the search of
the car. The court denied the motion to
suppress.
DISCUSSION
Guerrero
contends the trial court erred in denying his motion to suppress. Guerrero does not challenge the finding that
his consent to search was voluntary. His
contention is that the agents needed probable cause in order to send him to the
secondary position and that they did not have probable cause, thus he had been
unlawfully seized at the time of his consent.
The parties
disagree as to whether agents at a Border Patrol checkpoint need probable cause
to refer a vehicle to the secondary position for further inquiry and, if so,
whether the agents had the requisite probable cause.
First, as
we will demonstrate, this case must be resolved based on plainly applicable
U.S. Supreme Court precedent, particularly United
States v. Martinez-Fuerte (1976) 428 U.S. 543 (Martinez-Fuerte), which approved immigration checkpoints and held
that a referral to secondary for further brief questioning did not violate the
Fourth Amendment. Further, we note that
the parties incorrectly use the standard of probable cause to address what, on
this record is at most a temporary detention for further investigation of
possible criminal activity. (See United
States v. Brignoni-Ponce (1975)
422 U.S. 873, 882 (Brignoni-Ponce);
21.) To the extent that some further
justification was required for Agent Anderson to direct Guerrero to secondary,
it would only have to establish reasonable suspicion, based on articulable facts,
that criminal activity might be taking place.
(Martinez-Fuerte,
to send Guerrero to the secondary position.
Given the
briefing in this case, we think it appropriate to restate a summary of the
events leading up to the consent to search.
Guerrero
stopped at the primary point of an established Border Patrol checkpoint. The
initial stop and contact with Agent Anderson took only a minute. As Guerrero's car pulled up to the primary
station, Agent Christoffels and her dog approached the car. The dog had been trained to smell humans and
drugs. While Anderson was still talking
to Guerrero, Christoffels advised Anderson that the dog had alerted and requested
referral to secondary. Thus the question
presented is whether the combined observations of Anderson and Christoffels
amounted to sufficient, articulable facts to justify further detention. We answer the question based on this record,
concluding the agents had reasonable suspicion within the meaning of
v. Ohio, supra, 392 U.S. 1 to justify further detention.
A. Standard of Review
When we
review a decision on a motion to suppress evidence on Fourth Amendment grounds
we follow an established two-step process.
We first review the trial court's finding of the historical facts under
the substantial evidence standard of review.
Once the historical facts are established, we then exercise our
independent judgment to determine if the trial court correctly applied the law
to the facts. (People v. Leyba (1981) 29 Cal.3d 591, 596;
Cal.3d 1268, 1301.)
B. Analysis
In
the Border Patrol checkpoint permanently located at San Onofre in San Diego
County. The court expressly approved of
the process used at such checkpoints. At
such checkpoints all cars are briefly stopped at a primary station, when the
checkpoint is operating, in order for the agents to briefly question and
observe the occupants of the vehicle. If
the agent finds reason for further inquiry, the vehicle may be directed to a
secondary station "on the basis of criteria that would not sustain a
roving-patrol stop." (
885-887.)
The
standard for a roving patrol stop is reasonable suspicion, based upon
sufficient articulable facts from which the officer, in light of his or her
experience, would believe that criminal activity is taking place. (Brignoni-Ponce,
supra, 422 U.S. at pp. 884-887.)
Reasonable suspicion is that standard established in
officers have sufficient justification to conduct a detention (a seizure which
is less than an arrest) in order to investigate whether a crime is being
committed.
The parties
here argue at length as to whether Martinez-Fuerte,
supra, 428 U.S. 543 authorizes referring vehicles to secondary without any particularized
suspicion. We do not need to address
that constitutional issue since in this case the agents clearly had reasonable
suspicion to justify continued detention for investigation.
The record
demonstrates that the agents collectively had reasonable suspicion based upon
Guerrero's behavior, the passenger's extreme anxiety and the fact that Agent
Christoffels's dog had alerted on Guerrero's car. Taken together, the agents could suspect,
given their experience, that Guerrero's car contained either hidden human
beings or some form of illegal drugs.
In the
alternative, Guerrero argues, based on a single reference in the
cross-examination of Agent Anderson that the agents were not conducting an
immigration checkpoint, but rather an ordinary law enforcement effort to look
for evidence of crimes. The record does
not support such inference.
Agent
Anderson acknowledged that at the checkpoints he looks for indications of
immigration violations and violations of federal law. However, he made it clear he was carrying out
normal Border Patrol activities addressing possible illegal immigration. Further, the canine who alerted on the car
was trained to alert of humans present in a car as well as illegal substances.
Guerrero
relies on City of Indianapolis v. Edmond
(2000) 531 U.S. 32 (Edmond), to
support his contention the agents' actions in this case were unlawful. That case does not aid Guerrero's cause.
In
the city had established a program of checkpoints to look for drugs. The court recognized that checkpoints had
been allowed for immigration (Martinez
Fuerte, supra, 427 U.S. 543), and
drunk driving (Michigan
(1990) 496 U.S. 444). The court,
however, declined to authorize the use of checkpoints for general law
enforcement activity. (
Nothing in
this record supports the contention that the checkpoint in this case was being
used for general law enforcement purposes.
Here, Border Patrol agents were looking for
by the questioning of Guerrero at the time of the initial stop. Although the dog alert could have indicated
to the agents that illegal substances were in the car, it was also consistent
with indicating the presence of hidden human beings in the car, a classic
indication of illegal immigration activity.
Thus, we
conclude the principles of Edmond,
to this case.
C. The Dog
Finally,
Guerrero argues there was insufficient evidence of the reliability of the dog
sniff because Guerrero was only given the records of the dog, and dog handler's
certifications. He did not receive all
of the records of the dog's training.
Thus, he argues the dog alert did not provide the agents with probable
cause. There are several problems with
this contention.
First, the
agents did not need probable cause, but only needed reasonable suspicion within
the standard of Terry v. Ohio, supra, 392
U.S. 1. Further, the dog alert was only
a part of the totality of information that gave the agents justification for
further investigation.
The other
problem with this contention is that the Supreme Court has held that on a
motion to suppress evidence based in part on a dog sniff, a full, detailed
examination of the dog's history and training is not necessary, even for
probable cause. In Florida v. Harris (2013)
___ U.S. ___; 133 S.Ct. 1050, the court held requiring detailed examination of
a dog's history and training is not necessary and is actually contrary to the
commonsense process of evaluating the basis of probable cause. (Id.
at p. 1057.)
It has been
well established that a dog sniff is not a search. (United
States v. Place (1983) 462 U.S. 696, 707.)
Where there is a detention, but the dog sniff does not prolong an
otherwise reasonable detention, no Fourth Amendment violation occurs. In Illinois
v. Caballes (2005) 543 U.S. 405,
409-410, the police had lawfully stopped the defendant for a traffic
violation. A second officer, hearing of
the stop, promptly brought a dog to the scene.
The dog alerted on the car and a later search ensued. The court found allowing the dog to sniff an
otherwise lawfully stopped vehicle did not constitute an unlawful search.
In this
case it is undisputed that Guerrero's car was lawfully stopped at the primary
position at the checkpoint. Christoffels
and her dog immediately approached the stopped car and the dog alerted. Guerrero's detention was not unduly prolonged
nor was there an unlawful search of the car at that time.
It must be
remembered that the actual search was the result of a voluntary consent, which
is not challenged on its merits in this appeal.
Since the agents' actions leading up to the consent were lawful, there
is no basis for suppression of the evidence seized in the search.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON,
J.
IRION,
J.
