United States District Court, S.D. California
ORDER DENYING DEFENDANT"S MOTION TO SUPPRESS EVIDENCE INTRODUCTION
GONZALO P. CURIEL, District Judge.
On July 3, 2014, Defendant Eduardo Garcia-Grimshaw ("Garcia" or "Defendant") was arrested following a traffic stop of his Nissan Sentra which was followed by a canine alert on the vehicle and the discovery of approximately 31 kilograms of methamphetamine concealed in the vehicle. Defendant is charged in a one-count information with possession of methamphetamine with intent to distribute. On October 15, 2014, Defendant filed a motion to suppress evidence challenging the traffic stop, canine sniff, search of his vehicle, seizure of his cell phone, his arrest, and his post-arrest statement. A hearing on the motion was conducted on October 31, 2014, November 12, 13 and 19, 2014 and December 2, 2014. Based on the papers filed, testimony of the witnesses called and the exhibits admitted, the Court DENIES the motion to suppress.
On the morning of July 3, 2014, Border Patrol Agent Kevin Caruthers was observing traffic from the northbound side of the I-15 freeway near Gopher Canyon Rd. in Fallbrook, CA. Agent Caruthers has been with the Border Patrol for 15 ½ years and has received specialized training in behavioral analysis and highway interdiction. Agent Caruthers was uniformed and operating a marked U.S. Border Patrol Tahoe and was traveling with his drug detecting canine "Lepra." Def. Mot. Ex. A at 1. The area is located 70 miles north of the border and is a "well-known and documented corridor used by illegal entrants and smugglers to transport their illicit cargo north into the interior of the United States." Id. Agent Caruthers had apprehended "numerous smuggling loads in recent months, many of which were intercepted along the I-15 smuggling corrider." Id.
On July 3rd at approximately 10:30 a.m., Garcia was driving north on I-15 in a silver Nissan Sentra, bearing California license plates. Agent Caruthers observed Garcia slow down causing the Nissan Sentra's nose to dip upon seeing Agent Caruthers parked on the side of the road. Id. Agent Caruthers described this as something the "majority of the motoring public" will do upon seeing a law enforcement vehicle. Id. However, Garcia did not speed back up upon approaching Agent Caruthers's car, which Agent Caruthers described as unusual. Id. In his experience, the majority of the motoring public will resume their previous speed after realizing the unit is a Border Patrol unit. Id. at 2.
Agent Caruthers also noticed Garcia was "sitting rigid [sic] and looking straight ahead, with both hands on the steering wheel." Id. Given these observations, Agent Caruthers entered the freeway to investigate further. When Agent Caruthers pulled alongside Garcia's car, Garcia placed one hand on the passenger seat and tapped his fingers on the headrest. Id.
As Agent Caruthers drove along side Garcia's vehicle, he noticed that Garcia's car was clean and free of any personal items. Agent Caruthers had previously seen clean cars associated with smuggling because the load car does not necessarily belong to the driver so none of the driver's personal items are in the car. Id.
Record checks by Agent Caruthers revealed that the vehicle was registered to Carmen Grimshaw-Rivas of San Diego. Id. In addition, Agent Caruthers learned that the same Nissan Sentra had crossed from Mexico into the United States on July 2, 2014 at 9:02 p.m. at the Port of Entry ("POE") at San Ysidro. Id. Available photos revealed that Garcia himself drove the Nissan Sentra into the United States on July 2nd. Id. Records checks also disclosed that Garcia had crossed into the United States thru the Otay Mesa POE pedestrian lanes that morning at 9:33 a.m. Id.
Agent Caruthers found the crossing pattern of Garcia very suspicious. In his experience, load vehicles cross through a POE and park until the following day so that the load vehicle can avoid detection by blending in with traffic during normal traffic hours. Id.
When Agent Caruthers passed Garcia's vehicle, Garcia slowed down from 65 miles per hour to around 55 miles per hour. Id. Agent Caruthers testified that the average rate of speed for traffic at that time and stretch of road was between 75 and 80 miles per hour. Agent Caruthers believed that Garcia was trying to distance himself from Agent Caruthers by driving at a much slower rate of speed. Id. Agent Caruthers slowed down and waited for Garcia to pass him and then pulled behind Garcia's Nissan. At this time, Garcia "abruptly changed lanes" and unsafely crossed three lanes of traffic to exit at Mission Road. Id.
Based on these facts, Agent Caruthers activated his emergency lights and stopped Garcia. Id. Agent Caruthers contacted Garcia and asked him in English where he was going and why he had abruptly exited the highway. Id. at 2-3; Govt. Resp. Ex. A at ¶¶ 6-7. Garcia responded that "he was looking for a restroom, " and "that he had to go really bad." Def. Mot. Ex. A at 3. Agent Caruthers then asked Garcia why he did not exit at the I-76 exit where a gas station is visible from the highway and there are signs for gas stations on the Freeway. Govt. Resp. Ex. 1 at ¶ 9. Garcia stated that he did not know there was a restroom at the exit. Id.
Garcia claims that he told Agent Caruthers that he spoke Spanish and spoke a little English. Def. Mot. Ex. D at 11. Meanwhile, Agent Caruthers stated that Garcia answered his questions with no hesitation, spoke to Agent Caruthers in English, and asked Agent Caruthers questions in English. Govt. Resp.Ex. 1 at ¶ 17. Agent Caruthers asked Garcia where he was going and Garcia explained to Agent Caruthers that he was on his way to Glendale for the July 4th holiday. Def. Mot. Ex. A at 3. Agent Caruthers questioned Mr. Garcia about his border crossings. Id. Garcia claimed it had been several days since he last crossed the border in the Nissan. Id.
A few minutes after the stop, Agent Caruthers asked Garcia for consent for a canine sniff and hand search of the outside and inside of his vehicle. Govt. Resp. Ex.
1 at ¶ 11. Agent Caruthers explained to Garcia that the canine was trained to detect drugs. In his declaration, Garcia states that he needed to use the restroom at the time and did not understand exactly what Agent Caruthers was saying. Def. Motion Ex. D at 12. Agent Caruthers testified that Garcia granted verbal consent. Garcia states that he was not advised that he could refuse the hand or canine search and believed that he had to allow the search. Id. Garcia who was not handcuffed or restrained, stepped out of the car and stood nearby while Agent Caruthers retrieved his drug detecting dog. Govt. Resp. Ex. 1 at ¶ 11. As Agent Caruthers walked Lepra towards Garcia's vehicle, Lepra immediately alerted to the rear passenger door which was the first part of the vehicle that she reached. Id. at ¶ 12. Afterwards, Agent Caruthers opened the rear door to the vehicle and Lepra almost immediately indicated to the presence of drugs near the back seat of the vehicle. Id. at ¶ 13.
Following the canine alert and indication, Agent Caruthers informed Garcia of the canine alert and asked if there was anything illegal in the vehicle to which Garcia replied "no." Def. Mot. Ex. A at 3. Agent Caruthers then asked Garcia if the vehicle could be moved to the Temecula checkpoint so that a search of the vehicle could be performed in a safe environment. Agent Caruthers stated that Garcia gave verbal consent. Id. Meanwhile, Garcia asserts that he was told that the inspection of his vehicle would continue at a point approximately five miles away. Def. Mot. Ex. D at 12. Agent R. Otero was called and responded as backup minutes later and Garcia followed Otero's vehicle to the checkpoint with Agent Caruthers following Garcia's vehicle.
At the checkpoint, Garcia's cell phone was taken from him and he was placed in the back seat of a locked law enforcement car. Id. at 13. Agent Caruthers testified that Garcia's cell phone was taken to prevent the destruction of evidence or photographing of law enforcement officers. A search of the vehicle revealed methamphetamine under the carpet, under the driver's seat, in the center console, in the four doors, and in the rear back seat of the Nissan Sentra. Garcia was advised of the drug seizures and was arrested at 11:15 a.m. and transported to the Murrieta Border Patrol station for processing. Garcia's declaration states that he was placed in a holding cell where Agent Perez asked Garcia for his cell phone password. Garcia asserts that while he was being fingerprinted Agent Perez was using his cell phone. Id. at 13.
At approximately 1:20 p.m., Garcia was provided and signed a consent form in the English language for a search of Garcia's cell phone. Def. Mot. Ex. B. At 2 p.m., Agent U. Perez provided Garcia with a written acknowledgment and waiver of his Miranda rights with a I-214 form in the Spanish language. Govt. Ex. 6. While Garcia explained that he was fluent in both Spanish and English, Garcia stated his preference to have the interview in the Spanish language. Garcia waived his Miranda rights and was interviewed by Agent U. Perez and Agent Otero in the Spanish language.
1. The Stop of Garcia was Supported by Reasonable Suspicion
The Fourth Amendment "applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). Accordingly, the Fourth Amendment requires that such seizures be, at a minimum, "reasonable." Id. An investigatory stop of a vehicle may be based upon a reasonable suspicion that criminal activity is afoot upon an evaluation of the totality of the circumstances. United States v. Arivizu, 534 U.S. 266 (2002). The evaluation precludes a "divide-and-conquer analysis" because even though each of the suspect's "acts was perhaps innocent in itself... taken together, they [may] warrant  further investigation." Id. at 274. The analysis 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 elude an untrained person. Id.
Under United States v. Brignoni-Ponce, 422 U.S. at 884, a non-exclusive list of factors a court may use in determining whether a stop and detention is lawful includes: (1) characteristics of the area where vehicle encountered; (2) proximity to border; (3) erratic or evasive driving; aspects of the vehicle; and (4) behavior of the driver. Such facts must be filtered through the lens of the agent's training and experience. Id. at 885.
The relevant factors in this case are as follows:
A. Area Where Vehicle Encountered
Agent Caruthers encountered Garcia at the I-15 corrider where 36 loads had been discovered between May 2013 and October 2014. Five of those seizures had been made by Agent Caruthers, including three seizures made by him earlier in 2014.
B. Proximity to the Border
Garcia was encountered on the I-15 corrider in an area approximately 70 ...