P. v. Oropeza
Filed 3/26/13 P. v. Oropeza 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
SERGIO OROPEZA,
Defendant and Appellant.
D061341
(Super. Ct.
No. SCD232801)
APPEAL from
a judgment of the Superior Court of
County, John S. Einhorn and Frederick Maguire, Judges. Affirmed.
INTRODUCTION
Sergio
Oropeza pleaded guilty to transportation of more than four kilograms of cocaine
not for personal use (Health & Saf. Code, §§ 11352, subd. (a), 11370.4,
subd. (a)(2); Pen. Code, § 1210, subd. (a)), one count of possession of more
than four kilograms of cocaine for sale (Health & Saf. Code, §§ 11351,
11370.4, subd. (a)(2)), one count of transportation of more than four kilograms
of methamphetamine not for personal use (Health & Saf. Code, §§ 11379,
subd. (a), 11370.4, subd. (b)(2); Pen. Code, § 1210, subd. (a)), and one count
of possession of more than four kilograms of methamphetamines for sale (Health
& Saf. Code, §§ 11378, 11370.4, subd. (b)(2)). The trial court sentenced him to five years
in prison.
Before
pleading guilty, Oropeza filed two motions
to suppress the evidence against him:
an initial motion under Penal Code section 1538.5, subdivision (a), and
a renewed motion under subdivision (i).
In the motions, he argued the officers who conducted the vehicle stop
leading to his arrest lacked reasonable suspicion for the stop. After considering the evidence of the
circumstances prompting the stop, the trial court determined the officers had
the requisite reasonable suspicion and denied the motions.
Oropeza
appeals, contending we must reverse his convictions because the trial court
erroneously denied his suppression motions.
We disagree and affirm the judgment.
BACKGROUND
On February 9, 2011, Border Patrol agents
Miguel Perez and Henry Ballo were in a marked patrol car conducting
anti-smuggling operations on Interstate 8 (I-8) near the Pine
Valley checkpoint. Perez had been a Border Patrol agent for
almost nine years and had been part of the agency's smuggling interdiction
group for three and a half years. His
training and experience included identification of driving behaviors indicative
of illegal smuggling activity.
On this
date, the checkpoint was closed due to the weather. Perez explained it is common for smugglers to
try to transport their contraband when a checkpoint is closed. Around 9:15
a.m., the agents saw a white minivan with a Mexico
license plate position itself close to another vehicle as if attempting to hide
from the agents' view. In addition, the
minivan maintained its speed and closed the gap with the vehicle in front of it
instead of slowing down as typically occurs when drivers encounter patrol
vehicles.
The agents
followed the minivan and drove alongside it, first on the left side then on the
right side, for 10 to 12 minutes at about 60 miles per hour. Oropeza was the minivan's only occupant. He drove with his head straight, his body
rigid, and his hands on the steering wheel in the 10:00
o'clock and 2:00 o'clock
positions. Although he appeared to
glance back and forth at the agents through the minivan's side and rearview
mirrors, he never made eye contact with the agents or otherwise acknowledged
their presence even though one of the agents attempted to make eye contact with
him and the other agent lifted himself up off his seat to peer inside the
minivan.
The
minivan's license plate was dangling almost halfway off, with one bolt secure
and the other wiggling back and forth as if it had been recently placed on the
vehicle. The license plate was recently
issued even though the minivan was an older model. Perez explained it is common for smugglers to
switch license plates and use recently issued license plates to avoid detection
when crossing the border.
The
minivan's interior was very clean and the dashboard appeared to have been
recently "wiped down." Perez
explained smugglers typically avoid leaving handprints or grease prints that
would make any work they had done to their vehicles' dashboards or backdoors
stand out. It also appeared Oropeza only
had the ignition key with him. Perez
explained smugglers are often only given one key to open and drive the vehicle. They will not have house keys or other
personal items in the car.
The agents
checked the Department of Homeland Security records and learned the minivan had
entered the country at 7:38 a.m. that
day through the Calexico port of entry.
From that information, Perez determined the minivan had not stopped
since its entry, which is a common pattern of drug smugglers.
The agents
pulled behind the minivan and slowed down to see how Oropeza reacted. While most drivers will go back to their
normal speed when a marked patrol car backs away, Oropeza continued maintaining
the same relatively slow speed without attempting to break away from the patrol
car.
The agents
then activated the emergency lights on their patrol car to signal Oropeza to
stop and pull over. Oropeza did not stop
and pull over immediately. Instead, he
slowed down, exited the interstate, turned right and drove several hundred
yards before coming to a complete stop.
The stop seemed prolonged to Perez.
He explained prolonged stops are indicative of smuggling activity
because "in their mind, they're refreshing their story as to where they're
going, their location, or what the reason for their visit or reason for [their]
destination."
After the
stop, the agents conducted a search of the vehicle and discovered a large
amount of cocaine and methamphetamine concealed in the dash. The agents also found a single socket wrench
behind the driver's seat, which was the right size to open the compartment
where the drugs were hidden.
DISCUSSION
"In
ruling on a motion to suppress, the
trial court must find the historical facts, select the rule of law, and apply
it to the facts in order to determine whether the law as applied has been
violated. [Citation.] We review the court's resolution of the
factual inquiry under the deferential substantial-evidence standard. [Citation.]
The ruling on whether the applicable law applies to the facts is a mixed
question of law and fact that is subject to independent
review." (People v. Hoyos (2007) 41 Cal.4th 872, 891, overruled on another
ground by People v. McKinnon (2011)
52 Cal.4th 610, 637-643.)
"The
Fourth Amendment prohibits 'unreasonable searches and seizures' by the
Government, and its protections extend to brief investigatory stops of persons
or vehicles that fall short of traditional arrest. [Citations.]
Because the 'balance between the public interest and the individual's
right to personal security,' [citation], tilts in favor of a standard less than
probable cause in such cases, the Fourth
Amendment is satisfied if the officer's action is supported by reasonable
suspicion to believe that criminal activity ' "may be afoot"
'." (United States v. Arvizu (2002) 534 U.S. 266, 273 (
When making
reasonable suspicion determinations, we "must look at the 'totality of the
circumstances' of each case to see whether the detaining officer has a
'particularized and objective basis' for suspecting legal wrongdoing. [Citation.]
This process allows officers to draw on their own experience and
specialized training to make inferences from and deductions about the
cumulative information available to them that 'might well elude an untrained
person.' " (Arvizu, supra, 534 U.S.
at p. 273.) "[C]ourts do not have
available empirical studies dealing with inferences drawn from suspicious
behavior, and we cannot reasonably demand scientific certainty from judges or
law enforcement officers where none exists.
Thus, the determination of reasonable suspicion must be based on
commonsense judgments and inferences about human behavior." (Illinois
v. Wardlow (2000) 528 U.S. 119, 124-125.)
Among the
factors we consider in assessing the propriety of vehicle stops in border areas
are: the location where the officer
encountered the vehicle; the location's proximity to the border; the typical
traffic patterns in the location; information about recent similar criminal
activity in the location; the driver's behavior, including any obvious evasion
attempts; and relevant aspects of the vehicle, such as its features,
appearance, and occupancy. (
422 U.S. 873, 884-885.) We may not
consider factors in isolation from one another.
(Arvizu, supra, 534 U.S. at p. 274.)
We also need not rule out the possibility of innocent conduct. (Id.
at p. 277.)
In this
case, the Border Patrol agents stopped Oropeza in an area of I-8 known for
smuggling activity. They knew there was
an increased probability smugglers would be on the interstate that day because
of the checkpoint closure. They noticed
Oropeza's minivan when he positioned it close to another vehicle as if
attempting to avoid their view. They
then drove their marked patrol vehicle alongside the minivan, first on the left
side then on the right side, for 10 to 12 minutes while one agent attempted to
make eye contact with Oropeza and the other agent lifted himself off of his
seat to peer inside. Although Oropeza
glanced back and forth at the agents through the minivan's side and rearview
mirrors, he never acknowledged or made eye contact with the officers. Instead, he kept his face forward, his body
rigid, and his hands at the 2:00 o'clock and 10:00 o'clock positions on the
steering wheel.
In
addition, although Oropeza's minivan was an older model, its license plate was
newly issued and dangled from one bolt as if hastily fastened. Oropeza also appeared to have only the
ignition key with him and the minivan's dashboard appeared to have been
recently wiped down. Moreover, once
Oropeza crossed the border, he drove continuously. Then, when the agents initiated the vehicle
stop, Oropeza did not pull over immediately.
He prolonged the stop by driving off the interstate, around a corner,
and several hundred yards before stopping.
Perez explained
why his training and experience with smuggling interdiction caused him to
suspect Oropeza of smuggling activity.
Perez's explanations were rational and, considering them and Oropeza's
actions collectively, we are satisfied the agents had the requisite reasonable
suspicion to stop Oropeza's minivan.
Implicitly
recognizing his conscious avoidance of the agents is one of the weightier
factors against his position, Oropeza argues and cites various authorities for
the proposition lack of eye contact may never be considered in determining the
existence of reasonable suspicion.
However, Oropeza's argument and authorities conflict with more recent
United States Supreme Court authority allowing situational assessment of this
factor. (See Arvizu, supra, 534 U.S.
at pp. 275-276 [A driver's slowing down, stiffening of posture, and failure to
acknowledge a sighted law enforcement officer may be unremarkable in one
situation and quite unusual in another.
An officer is entitled to assess the situation in light of his or her
specialized training and familiarity with the customs of an area's
inhabitants.].) In our view, Oropeza's
conscious avoidance of the agents was far closer to being "quite
unusual" than to being "unremarkable." Consequently, we conclude it was
appropriately considered in determining the existence of reasonable suspicion
in this case.
In addition
to challenging the absence of eye contact as a factor, Oropeza extensively
argues why each of the factors relied upon by the agents was consistent with
innocent, rather than suspicious conduct.
However, the United States Supreme Court has specifically disapproved of
a divide-and-conquer, factor-by-factor determination of reasonable suspicion in
favor of a totality of the circumstances approach. (Arvizu,
supra, 534 U.S. at p. 274.) The United States Supreme Court has also
specifically recognized a series of acts, each possibly innocent, may warrant
further investigation when considered collectively. (Id.
at pp. 274-275; Illinois v. Wardlow,
the totality of the circumstances, even conduct susceptible to an innocent
explanation may provide reasonable suspicion for a stop].) " '[T]he relevant inquiry is not
whether particular conduct is "innocent" or "guilty," but
the degree of suspicion that attaches to particular types of noncriminal acts.'
" (United States. v. Sokolow (1989) 490 U.S. 1, 10.)
While we do
not doubt a person driving from Mexico into the United States under identical
circumstances might not have any involvement with smuggling activity, the
question before us is whether the person could be reasonably suspected of
having such involvement for border patrol agents to conduct a constitutionally
permissible investigative detention.
Because the totality of the circumstances demonstrates the agents in
this case had a particularized and objective basis for suspecting Oropeza's
involvement in smuggling, we conclude the trial court properly denied Oropeza's
suppression motions.
DISPOSITION
The
judgment is affirmed.
McCONNELL,
P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
