US v. Buckner, 98-50369.

• Decision Date: 10 June 1999
• Docket Number: No. 98-50369.,98-50369.
• Citation: 179 F.3d 834
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James Lowell BUCKNER, Defendant, and Kendra Lynn Murry, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

179 F.3d 834

UNITED STATES of America, Plaintiff-Appellant, v. James Lowell BUCKNER, Defendant, and Kendra Lynn Murry, Defendant-Appellee.

No. 98-50369.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 2, 1999.

Submission Deferred February 5, 1999.

Resubmitted May 1, 1999.

Filed June 10, 1999.

Bruce R. Castetter, Assistant United States Attorney; Jeffrey A. Taylor, Assistant United States Attorney, San Diego, California, for the plaintiff-appellant.

Matthew C. Winter, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellee.

Before: BRUNETTI, MAGILL,¹ and McKEOWN, Circuit Judges.

MAGILL, Senior Circuit Judge:

The United States appeals the district court's decision granting Kendra Lynn Murry's motion to suppress her post-arrest statements. Border agents stopped the car in which Murry was riding as the sole passenger as it crossed the United States-Mexico border. Upon inspection, agents discovered thirty-seven pounds of marijuana hidden in the car. Agents arrested both the driver and Murry. After being arrested, Murry made several incriminating statements. Murry moved to suppress these statements, arguing that her arrest was unlawful and that the statements she made were obtained as the fruit of the unlawful arrest. The district court agreed with Murry and suppressed the statements. We reverse the district court's decision.

I.

On January 23, 1998, James Lowell Buckner, Murry's companion, drove a Chevrolet Sprint with California license plates from Mexico to the United States through the San Ysidro Port of Entry (Port) in San Diego, California. Murry was the sole passenger and was seated in the front passenger seat.

Border agents stopped the car at the Port for primary inspection. Buckner and Murry told Immigration and Naturalization Service (INS) inspector Tyrone Jeffries that they were United States citizens and were not bringing anything back into the country. Buckner also told Jeffries that the Chevrolet belonged to a friend. Jeffries then tapped the rear side panels on the car and noticed that the panels sounded and felt solid. At this point, Jeffries referred Buckner and Murry to the secondary inspection lot for further inspection.

At the secondary inspection lot, INS inspector Ed Drivdahl examined the car with a narcotics detector dog. The dog alerted to the odor of narcotics emanating from the rear quarter panels of the car. INS inspector Bernell Swinson then questioned Murry and Buckner. Buckner stated that he was on his way to Los Angeles, that the car belonged to his friend Leo Garcia, that he had not driven the car into Mexico, that a friend had driven him to Mexico to get the car, and that he had had the car that day only for a few hours. There is no evidence that Murry made any statements at this time.

Agents took Buckner and Murry to the security office and searched them. Buckner had $58 in cash and a driver's license listing an address near Los Angeles. Murry had no money and a California identification card listing a Los Angeles address. A motor vehicles check showed that the car was registered to a Leo Garcia of Los Angeles. Murry and Buckner remained in the security office while Inspector Swinson returned to the car to complete the inspection. He found thirty-seven pounds of marijuana hidden in the dashboard and rear quarter panels of the car.

Murry and Buckner were detained overnight due to the large number of seizures that night.² The next morning, agents arrested both Buckner and Murry. The agents advised Murry of her Miranda rights, which she waived. Upon interrogation, Murry made several admissions. She stated that she had initially agreed to drive a car loaded with drugs across the border into the U.S. for a friend named Melanie, but later changed her mind. Murry said that Melanie told her she would find someone else to drive the drugs, and that Melanie gave Murry the keys to another car, the Chevrolet Sprint. Although Melanie told Murry that the Chevrolet contained no drugs, Murry admitted she suspected it did contain drugs. Murry stated she brought Buckner along because she did not have a driver's license.

Murry was indicted by a federal grand jury on February 4, 1998, on one count each of conspiracy to import marijuana in violation of 21 U.S.C. §§ 952, 960, and 963; importation of marijuana in violation of 21 U.S.C. §§ 952 and 960 and 18 U.S.C. § 2; conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846; and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Murry moved to suppress her post-arrest statements, claiming that she was arrested without probable cause and that her statements were the fruit of the illegal arrest. The district court granted Murry's motion. It found that Murry's mere presence in the car, without any other indicia tying her to the drugs, was insufficient to support a finding of probable cause.

II.

Police may arrest a person without a warrant if the arrest is supported by probable cause. See United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir.1989). Whether police had probable cause to arrest is a mixed question of law and fact, which we review de novo. See United States v. Prieto-Villa, 910 F.2d 601, 604 (9th Cir.1990).

"Probable cause exists when, under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that the defendant had committed a crime." United States v. Garza, 980 F.2d 546, 550 (9th Cir.1992) (alteration in original) (citation and quotation marks omitted). In drug investigations, the court may consider the experience and expertise of the officers involved. See Hoyos, 892 F.2d at 1392-93. This experience and expertise may lead a trained narcotics officer to perceive meaning from conduct which would otherwise seem innocent to the untrained observer. See Brown v. Texas, 443 U.S. 47, 52 n. 2, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Hoyos, 892 F.2d at 1393.

In this case, the border agents were faced with the following facts in deciding whether to arrest Murry: Murry was a passenger in a car that contained thirty-seven pounds of marijuana hidden in the dashboard and rear panels; Buckner and Murry were entering the United States from Tijuana, Mexico, an area known as a drug source, at a port of entry through which drugs are routinely smuggled; neither Buckner nor Murry owned the car; and Buckner stated that he had picked up the car in Mexico, that he had had the car only for a few hours, and that an unnamed friend had taken him to Mexico to pick up the car.³

The district court concluded that these facts were insufficient to support a finding of probable cause to arrest Murry. It found that this case was governed by this Court's decision in United States v. Soyland, 3 F.3d 1312 (9th Cir.1993), and that Murry's mere presence as a passenger in the car, without some further indicia tying her to the drugs, was insufficient to support a finding of probable cause. The court rejected the government's contention that this Court's earlier decision in United States v. Heiden, 508 F.2d 898 (9th Cir. 1974), supported a finding of probable cause to arrest Murry. We conclude that the district court erred in its interpretation of Heiden and Soyland.

The government correctly argues that this case is governed by this Court's prior ruling in Heiden, in which we held that border agents had probable cause to arrest a passenger in a car transporting a large quantity of drugs across the U.S. border. Heiden, 508 F.2d at 901-02. In Heiden, Border Patrol agents stopped the car in which Heiden was the sole passenger because the agents suspected they were transporting illegal aliens. See id. at 900. The driver of the car was unable to produce a key to the trunk, and when asked to remove the back seat, the driver stated he did not know how. See id. As the agent and the driver removed the seat, the agent smelled marijuana. See id. Upon further inspection, agents discovered 110 pounds of marijuana in the trunk. See id. Both Heiden and the driver were arrested, and the officers discovered the missing trunk key in Heiden's sock. See id.

Heiden moved to suppress the key, claiming the agents lacked probable cause to arrest him. This Court, albeit without much discussion, found that the agents had probable cause to arrest Heiden. See id. at 901. We stated that the agents "reasonably believed that Heiden was involved in the transporting of 110 pounds of marijuana. The officers were not required to believe his explanation that he did not know about the marijuana." Id.⁴

We believe Murry's situation is analogous to the situation in Heiden. Murry, like Heiden, was the sole passenger in a car transporting a large quantity of drugs across the U.S. border. Those facts were sufficient to support a finding of probable cause to arrest Heiden. Therefore, Heiden dictates our conclusion that Murry's arrest was lawful and that her statements were lawfully obtained.

Notwithstanding this Court's decision in Heiden, Murry argues that her mere presence in the car does not support a finding of probable cause to arrest her. In support of her argument, Murry argues that the Supreme Court's decision in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), decided after Heiden, and this Court's more recent decision in Soyland, undermine our decision in Heiden. Both cases stand for the general proposition that a person's mere presence or "mere propinquity" to criminal activity alone does not support probable cause to search or arrest that person. Ybarra, 444 U.S. at 91, 100 S.Ct. 338; see Soyland, 3 F.3d at 1314. We conclude that the mere presence doctrine does not require suppressing Murry's statements in this case.

In Ybarra, police had information that a bartender named Greg was dealing heroin out of a bar. 444 U.S. at 88, 100 S.Ct. 338. Police...