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United States of America v. Antonio Guerrero

March 17, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
ANTONIO GUERRERO, FRANCISCO GARIN, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

Defendants Antonio Guerrero ("Guerrero") and Francisco Garin ("Garin") (collectively, "defendants") are charged in the indictment with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and criminal forfeiture. This matter is before the court on defendants' (1) motion to suppress evidence seized by law enforcement officers during the search of a car on December 15, 2009 in violation of the Fourth Amendment; and (2) motion to suppress any statements made by defendants after the traffic stop in violation of the Fifth Amendment privilege against self-incrimination.*fn1 The United States of America (the "government") opposes the motions. The court held an evidentiary hearing on December 3, 2010 and February 25, 2011. Having reviewed the file herein and heard the testimony of witnesses and arguments of counsel, the court DENIES defendants' motions to suppress.

BACKGROUND*fn2

On December 15, 2011, Officer Douglas Mertz ("Mertz"), an officer for the California Highway Patrol ("CHP") assigned to the Criminal Apprehension Program as a K-9 handler, was monitoring traffic on Interstate 5 after a rainstorm. At approximately 11:30 a.m., he and his partner, Officer Todd Newman ("Newman") were sitting in their respective patrol cars in the center divide area of the highway just north of the Glenn County line. Mertz was facing southbound and monitoring traffic traveling northbound.

The speed limit on that stretch of highway was 70 miles per hour. There was a break in traffic, and Mertz observed a vehicle traveling northbound in the number two lane at an estimated speed of 75 miles per hour. Mertz then activated his front radar antenna and captured the speed of the vehicle at 77 miles per hour.*fn3 As the car slowed down and passed, Mertz noticed that the front driver and rear back windows were tinted. He also noticed that there was some type of object hanging from the rearview mirror.

Mertz made a U-turn and caught up to the vehicle. He then pulled his patrol vehicle behind the car, activated the front emergency lights, and conducted an enforcement stop. Mertz testified that the primary purpose of the stop was for the speeding violation; however, he also had suspicions that the tint on the windows and the item hanging from the rearview mirror might be illegal.*fn4 The vehicle yielded to the right shoulder and stopped. Mertz pulled his patrol car behind the vehicle.

Mertz exited his patrol car and approached the vehicle on the right side; he made contact with the two occupants through the right open window. He explained that the reason for the stop was the tinted windows and the speeding violation. He then asked the driver, Guerrero, for his licence and the vehicle registration. Mertz noted that the registered owner was different than the name on the driver's license. He also noted that the address and the city on the license was different than the address and the city on the registration.

Mertz asked the driver to exit the vehicle so he could ask him questions regarding the discrepancies between the information on the driver's license and on the vehicle registration.*fn5

Guerrero exited the vehicle and stood near the right front of Mertz's patrol car. Mertz asked Guerrero who the owner of the vehicle was. Guerrero told him that he didn't know who the owner was and that the owner was a friend of the passenger.

Mertz then reapproached the vehicle and asked the passenger, Garin, who the owner of the vehicle was. Garin told him that he didn't know who the owner was and that the owner was a friend of the driver. Mertz then asked Garin where he was coming from, the purpose of this trip, and the duration of his trip. Garin responded that he and Guerrero had driven to Madera*fn6 to look for work, were unable to find work, had stayed in Madera for two days, and were on their way home. Mertz spoke to both Guerrero and Garin in English; they responded in both Spanish and English.

Mertz then reapproached Guerrero and asked him where he was coming from, the purpose of this trip, and the duration of his trip. Guerrero responded that he and Garin had driven to Madera to visit family, had stayed in Madera for eight days, and were on their way home. Mertz did not have any further conversations with either defendant; neither defendant made any further statements.

This exchange lasted approximately two or three minutes. Based upon the inconsistencies between the information on the driver's license and on the vehicle registration as well as the inconsistencies in the answer's given by Guerrero and Garin, Mertz suspected that one or both of the subjects were involved in some type of criminal activity. Mertz requested via radio that his partner, Newman, respond to the location of the traffic stop. He also contacted the CHP dispatch center and requested a registration check on the vehicle. It took Newman approximately two minutes to arrive at the scene, where Mertz briefed him about what had transpired since the traffic stop. Around the same time, Sergeant Greg Ross ("Ross"), who had been driving through the area and heard the dispatch on the radio, pulled behind Newman's car.

Mertz reapproached the vehicle and asked Garin to exit the vehicle. He then escorted both Garin and Guerrero to the rear portion of his patrol vehicle. Mertz testified that he escorted defendants to this location in preparation of getting his dog out of the car; he didn't want defendants standing right next to his dog for safety purposes. Newman stood next to defendants.

Mertz retrieved his dog on leash, walked to the vehicle, and began walking the dog around the vehicle in a counterclockwise direction from the right rear corner of the vehicle. As the dog reached the right rear wheel well, he showed a distinct change of behavior, which Mertz recognized as the sign of alert. As Mertz continued around the vehicle to the back trunk area, the dog again showed a distinct change of behavior in the left trunk seam area. Mertz then opened the passenger door of the vehicle, took his dog off the leash, and deployed the dog to the side of the vehicle. The dog jumped in the back seat and began to alert at the area where the seat reached the right quarter panel.*fn7 Mertz advised both ...

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