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United States of America v. Jesus Antonio Ramos Cervantes

May 16, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JESUS ANTONIO RAMOS CERVANTES, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding D.C. No. 2:09-cr-00358- JFW-1

The opinion of the court was delivered by: Pregerson, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted October 4, 2010-Pasadena, California

Before: Harry Pregerson, Dorothy W. Nelson, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Pregerson;

Dissent by Judge Ikuta

OPINION

Jesus Antonio Ramos Cervantes appeals the district court's denial of his motion to suppress evidence found in his vehicle. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

BACKGROUND

On March 25, 2009, Detective Todd Hankel of the Los Angeles Police Department and his team of narcotics detectives and officers were conducting surveillance of a suspected narcotics stash house in Pacoima, California. Around 1:20 P.M., Hankel observed an unidentified male arrive at, and enter, the suspected stash house. A few minutes later, the unidentified male left the suspected stash house with a large white box and placed the box inside his truck.

Detective Hankel learned from his police radio that the unidentified male drove to a nearby street and pulled over to the curb. Hankel heard over the police radio that the unidentified male got out of his truck with the white box, walked over to a white GMC Envoy, and handed the white box to a second unknown male who was later identified as Cervantes.

Twenty minutes later, Hankel heard over his radio that Cervantes drove his GMC Envoy to a nearby liquor store. Hankel observed Cervantes exiting the liquor store with a purchase, getting inside his GMC Envoy, and driving away.

Shortly thereafter, Hankel heard over his radio that Cervantes drove on Interstate 5 and exited at San Fernando Mission Road. At this point, Hankel observed Cervantes drive through a residential neighborhood. It was Hankel's belief that Cervantes did not take a direct route to his location. Hankel concluded that this was a "counter-surveillance" driving technique that indicated Cervantes was engaging in narcotics trafficking. At this point, according to Hankel, "probable cause existed to believe that Cervantes was engaging in drug trafficking and had a large quantity of narcotics in his possession." Hankel, however, did not attempt to stop Cervantes.

At approximately 2:00 P.M., Hankel heard over his police radio that Cervantes drove to a residence on Polk Street. Hankel drove by the residence and saw Cervantes's GMC Envoy parked on the street. Hankel heard over his radio that Cervantes remained inside the GMC Envoy for approximately five minutes, got out empty handed, and went inside an unknown residence.

At 5:30 P.M., Hankel heard over his police radio that Cervantes and an unknown male left the residence on Polk Street in a white BMW. Forty-five minutes later, Hankel heard that Cervantes and the unknown male returned in the white BMW to the residence on Polk Street. After about one hour, Cervantes returned to his GMC Envoy and went to the rear hatch area of the vehicle. A few minutes later, Hankel heard that Cervantes left the Polk Street residence in the GMC Envoy. At this point, Hankel asked a marked police unit to develop a lawful reason to conduct a traffic stop.

In response to Hankel's request, Officer Sanchez and Officer Colley stopped Cervantes's GMC Envoy after the vehicle failed to come to a complete stop behind the limit line at an intersection. Cervantes cleared the intersection and, according to Officer Colley, pulled to the curb appropriately when the officers stopped him. During the traffic stop, Sanchez and Colley asked Cervantes for his license, registration, and proof of insurance. Cervantes looked around, but was unable to locate any of the documents. Colley asked Cervantes to step out of the car and performed a pat down search for weapons. Cervantes told Officer Sanchez that he had been arrested previously for driving under the influence, his license had been taken away, and he was currently attending ...


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