USA. v. Hernandez, PLAINTIFF-APPELLEE

• Decision Date: 28 August 2001
• Docket Number: PINELA-HERNANDE,PLAINTIFF-APPELLEE,No. 00-50371,DEFENDANT-APPELLANT,00-50371
• Citation: 262 F.3d 974
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,v. ALBERTO
• Court: U.S. Court of Appeals — Ninth Circuit

Page 974

262 F.3d 974 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. ALBERTO PINELA-HERNANDEZ, DEFENDANT-APPELLANT

No. 00-50371

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 11, 2001

Filed August 28, 2001

Counsel: Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney; and Edward C. Weiner, Office of the

United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California John S. Rhoades, District Judge, Presiding D.C. No. CR 99-02388-JSR

Before: Procter Hug, Jr., Susan P. Graber, and William A. Fletcher, Circuit Judges.

W. Fletcher, Circuit Judge:

OPINION

Alberto Pinela-Hernandez was convicted of conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§§§ 841(a)(1) and 846, and of possession of marijuana with intent to distribute, and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C. §§ 2. He was arrested after driving a car that was found to contain more than two hundred pounds of marijuana. Before trial, Pinela-Hernandez moved to suppress the evidence seized from the car. The district court denied the motion, and he was convicted on both counts. Pinela-Hernandez appeals, contending that the agents lacked probable cause to search his car. He also argues that he must be re-sentenced in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

We affirm the judgment of the district court.

I.

United States Customs Service agents received a tip that on July 23, 1999, a blue van bearing a load of cocaine would cross the border at Calexico from Mexico into California, and that the drop-off location was to be a 7-11 store in El Centro, California. On that date, customs agents spotted a vehicle matching this description at the Calexico port of entry and followed it. At the designated 7-11 store in El Centro, a new driver entered the van and the former driver left in a different car. The van was then driven to a residence at 405 State Street, El Centro. The van parked at that residence, stayed for a few minutes, then returned to Mexico. Agents did not see the van being unloaded at the State Street residence. A tape from a surveillance camera trained on the residence that afternoon also did not show the van being unloaded.

A burgundy Mercury Grand Marquis arrived at the State Street house later that afternoon. After it backed into the driveway, a black Nissan pulled in directly in front of it, blocking the surveillance camera's view of the Mercury. During the time the Mercury was parked at the house, two agents drove by separately. Agent Christensen testified that he saw that the trunk of the Mercury was open, and "several people [were] standing around it. And one subject[was] bent over the trunk." He testified that he did not see anything being put into the trunk. Agent Perez testified that he too saw that the Mercury's trunk was open and he "saw two people standing at the rear of the trunk." He did not see anything being put into the trunk.

About fifteen minutes after it arrived, the Nissan left. Then the Mercury left with two men in it, followed by an Oldsmobile. The agents followed the Mercury but lost it. They found the Mercury a short time later at a Burger King restaurant in the Valley Plaza Shopping Center and followed it as it left the shopping center. It appeared to the agents that the Mercury accelerated in an attempt to evade them when its occupants saw the agents following their car. The Mercury then drove at approximately seventy-five or eighty miles per hour on city streets circling the shopping center. The Mercury then reentered the Valley Plaza shopping center and parked near an office of the Social Security Administration. When the agents reached the car, it was empty, and Defendant Pinela-Hernandez, his wife, and their child were walking away. When the police approached, Pinela-Hernandez separated from his wife and child, and the two adults walked rapidly in different directions. One of the agents shouted to Pinela-Hernandez that they were police and motioned for him to come to their car. He did so, and they patted him down.

One of the agents looked into the back window of the Mercury and saw a large package with a distinctive wrapping partially covered by a blanket in the back of the car. Within minutes after Pinela-Hernandez was patted down, someone opened the trunk of the Mercury. It is not clear from the record who opened the trunk, but it appears to have been one of the agents. We assume for the purposes of our analysis that this is so. The trunk contained several large packages wrapped in the same fashion as the large package in the back of the car. One of the agents cut into one of the packages and discovered a "green leafy substance" inside. There were a total of 214.6 pounds of marijuana in the car and the trunk. After finding the marijuana in the Mercury, some agents went back to the 405 State Street residence, where they found 428.5 additional pounds of marijuana. Pinela-Hernandez unsuccessfully moved before trial to suppress the evidence seized from the Mercury.

The indictment charged Pinela-Hernandez with one count of conspiracy to possess approximately 292.32 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. §§§§ 841(a)(1) and 846; and one count of possession of 97.54 kilograms of marijuana with intent to distribute, and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C. §§ 2. At the close of evidence, the court instructed the jury that the government was not "required to prove that the amount or quantity of the marijuana was as charged in the indictment."

The jury convicted Pinela-Hernandez on both counts. At sentencing, the district court held that the government had met its burden of proving that Pinela-Hernandez had possessed the drugs found in the car, but not those found in the house. The court sentenced him to thirty-seven months' imprisonment, a significantly shorter term than recommended in the presentence report. Pinela-Hernadez did not object to the length of the sentence. Pinela now appeals both the denial of his motion to suppress and the length of his sentence.

II.

A district court's determination of probable cause presents mixed questions of law and fact, which we review de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). We review findings of historical fact for clear error and "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id. Because Pinela-Hernandez failed to object to his sentence below, we review his appeal of the sentence for plain error. United States v. Nordby, 225 F.3d 1053, 1060 (9th Cir. 2000).

III.

There was some confusion in the district court over the standard required for the agents' search of the car, and it is not entirely clear what standard the district court actually used. However, both sides agree that the search had to be supported by probable cause, not just reasonable suspicion. For the reasons that follow, we hold that there was probable cause to search the car and that the district court properly denied the motion to suppress.

The Supreme Court has held that police may conduct a warrantless search of a vehicle if they have probable cause to believe that it contains contraband. Carroll v. United States, 267 U.S. 132, 162 (1925); see also United States v. Ross, 456 U.S. 798, 799 (1982). This rule is known as the"automobile exception" to the general rule that the police must obtain a warrant before executing a search. California v. Carney, 471 U.S. 386, 390 (1985). The reasons for this exception are two-fold: the expectation of privacy in one's vehicle is less than in...