USA. v. Murillo, PLAINTIFF-APPELLEE

• Citation: 255 F.3d 1169
• Decision Date: 16 February 2001
• Docket Number: PLAINTIFF-APPELLEE,No. 00-10042,DEFENDANT-APPELLANT,00-10042
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. MARIANO MURILLO,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1169

255 F.3d 1169 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MARIANO MURILLO, DEFENDANT-APPELLANT.

No. 00-10042

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 16, 2001--San Francisco, California

Filed July 6, 2001

[Copyrighted Material Omitted]

Christopher P. Sonderby, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

John P. Balazs, Assistant Federal Public Defender, Sacramento, California, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, District Judge, Presiding. D.C. No. CR-98-00128-1-GEB

Before: Mary M. Schroeder, Chief Judge, J. Clifford Wallace and Richard C. Tallman, Circuit Judges.

Tallman, Circuit Judge

OPINION

Mariano Murillo appeals his conviction after a third jury trial for possession with intent to deliver methamphetamine and cocaine. Murillo challenges certain evidentiary rulings, the district court's refusal to compel discovery of unrelated case files in the government's possession, and the district court's refusal to grant a two-level reduction for a minor role in the offense. We have jurisdiction under 28 U.S.C.§§ 1291 and we affirm.

I.

Murillo was driving a rental car northbound on Interstate 5 in Colusa County, California, on the morning of February 22, 1998. California Highway Patrol Officer Allen Stallman observed Murillo driving in the right lane following a tractor-trailer rig too closely. Officer Stallman pulled into the fast lane of the divided highway and drove parallel to Murillo's car. Murillo was tightly gripping the steering wheel with both hands and looking straight ahead without acknowledging the presence of the marked police car. Stallman found this behavior unusual and backed off so that he could read the license plate and run a radio check to determine if the car was stolen.

After being notified a short time later by the CHP dispatcher that there were no outstanding wants or warrants on the vehicle, he pulled ahead of the truck, clearing the fast lane so that Murillo could get around the truck. Officer Stallman pulled off on the right-hand shoulder and observed Murillo pass him in the slow lane, still tailgating the truck. He caught up with Murillo and pulled him over with the intention of citing him for following too closely in violation of California Vehicle Code §§ 21703.

Officer Stallman approached Murillo's car on the right-hand shoulder next to the passenger door. He observed food wrappers on the floor which he believed indicated that the driver was on a long road trip. He asked Murillo to produce his driver's license and the registration for the car. When Murillo handed the officer the paperwork, Officer Stallman noticed that Murillo's hand trembled severely. The officer testified that he used nonconfrontational language and tried to calm Murillo by telling the motorist the reason for the stop, but the defendant's nervousness did not abate.

In examining the vehicle paperwork prior to issuance of the citation, Officer Stallman noted that the rental agreement had been signed at 8:00 p.m. the night before which meant that Murillo had driven most of the night from Santa Ana in southern California to Colusa County in northern California. The rental agreement indicated that the car was to be returned to Santa Ana in just two days. Officer Stallman testified that in his experience and based upon special training he had received in narcotics interdiction, a long distance, quick turn-around trip in a rental car was suspicious.

Officer Stallman explained that he was going to issue a citation. Murillo anxiously acknowledged the violation. The officer testified that the defendant's apparent eagerness to accept the traffic citation -and quickly end his encounter with the officer-- suggested to him that more serious criminal activity might be afoot.

While Officer Stallman was issuing the citation, he asked Murillo where he was going. Murillo said he was going to pick up his mother at his aunt's home in Yakima, Washington, but he did not know the address. He could not even describe the location of the residence. Officer Stallman found suspicious the defendant's inability to explain adequately his travel plans.

Because Murillo still seemed exceedingly nervous, the officer asked if he could check his pulse. Defendant consented and the officer determined that his heart was racing at 150 to 160 beats per minute. Officer Stallman testified that Murillo was one of the most nervous drivers he had ever encountered in ten years with the Highway Patrol. After this pulse check, Officer Stallman finished writing the citation and gave the ticket to Murillo to sign.

As a result of what he had observed, Officer Stallman testified that he wondered whether the defendant might be hiding something in the car, so he asked a series of questions to determine whether Murillo was carrying alcohol, weapons, or narcotics. Murillo looked directly at the Officer in denying that his car held alcohol or weapons. He looked down and away when asked about the presence of narcotics in his car. Officer Stallman repeated the same series of questions and Murillo twice gave the same suspicious response by looking away from the officer when asked whether there were drugs in the car.

Officer Stallman asked Murillo for his consent to search the rental car. Using a pre-printed consent to search form written in English and Spanish, Stallman explained the provisions of the form in English since his contact with defendant had confirmed that Murillo was capable of understanding and conversing in English. However, Officer Stallman directed Murillo's attention to the lower half of the consent form written in Spanish to ensure that Murillo knew his rights and what he was signing. Murillo then signed the consent form authorizing the search of his car.

Officer Stallman noticed during the search that two screws on the rear door panel appeared to have been recently removed. The defendant, who had been staring across the freeway during the first portion of the search, turned completely away when Officer Stallman inspected the rear doors of the rental car. By coincidence, a California Highway Patrol Canine Unit from the nearby Williams Area Office arrived to back up Officer Stallman. Based upon his observations concerning the screws on the rear door panel, Officer Stallman asked the canine officer to have his dog examine the interior and rear portions of the car. The dog alerted to the presence of narcotics in the right rear door panel both inside and outside the vehicle. At this point, Officer Stallman asked the defendant, who had been standing unfettered about twenty feet away outside the patrol car, to get into the rear of his police car while other officers removed the right rear door panel of the sedan. They discovered several packages of suspected narcotics which later analysis showed were 3.8 kilograms of methamphetamine and 2.5 kilograms of cocaine, valued at over one million dollars. Murillo was then placed in handcuffs and told that he was under arrest.

The rental car was moved to the nearby CHP Area Office. During an inventory search, Officer Stallman located a star-shaped wrench under the driver's seat that fit one of the four screws holding the rear door panel in place. Officer Stallman also later found a Phillips head drill bit in the defendant's right front pants pocket that fit the remaining three screws on the rear door panels. These tools were apparently never placed in evidence since they were returned to Murillo along with other property he possessed at the time of booking.

A grand jury indicted Murillo on March 20, 1998, on one count of possessing methamphetamine with intent to distribute and one count of possessing cocaine with intent to distribute. The defense challenged whether Officer Stallman exceeded the scope of the initial enforcement stop, whether the consent to search the car was voluntary, and whether Murillo was unlawfully seized under the Fourth Amendment before he gave consent. The district court held a lengthy suppression hearing and found based upon Officer Stallman's observations and questioning of Murillo that Officer Stallman had articulable suspicion that criminal activity was afoot sufficient to justify a further field detention and a broadened line of questioning. The district court also found that the written consent to search was knowing and voluntary.

Defendant's first two trials resulted in hung juries. After his third trial, a jury found Murillo guilty of both counts and the district court sentenced him to 188 months imprisonment. Murillo timely appeals.

II.

A. Evidence Rulings.

We review a district court's evidentiary rulings for abuse of discretion. See United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir. 1993). The denial of a motion to suppress evidence is reviewed de novo and the district court's factual findings are reviewed for clear error. United States v. Kemmish, 120 F.3d 937, 939 (9th Cir. 1997). The district court's determination that consent to search was voluntary is reviewed for clear error. United States v. Koshnevis, 979 F.2d 691, 694 (9th Cir. 1992).

1. Evidence Collected From the Warrantless Search.

It is undisputed that the initial roadside stop itself was reasonable because Murillo was following the truck too closely. We review whether the detention impermissibly exceeded the scope of the traffic stop and whether the written consent to search the car was voluntary.

a. Permissible Scope of the Traffic Stop.

During a traffic stop, a police officer is allowed to ask questions that are reasonably related in scope to the justification for his initiation of contact. See United States v. Baron, 94 F.3d 1312, 1319 (9th Cir. 1996). In order to broaden the scope of questioning, he must articulate suspicious factors that are particularized and objective. See id...