U.S. v. Valenzuela

• Citation: 365 F.3d 892
• Decision Date: 21 April 2004
• Docket Number: No. 03-2210.,03-2210.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Luz Maria VALENZUELA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 892

365 F.3d 892

UNITED STATES of America, Plaintiff-Appellant, v. Luz Maria VALENZUELA, Defendant-Appellee.

No. 03-2210.

United States Court of Appeals, Tenth Circuit.

April 21, 2004.

Laura Fashing, Assistant United States Attorney, (David C. Iglesias, United States Attorney, with her on the brief), Albuquerque, NM, for Plaintiff-Appellant.

Rosanne Camunez, Las Cruces, NM, for Defendant-Appellee.

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge and HARTZ, Circuit Judge.

PAUL KELLY, JR., Circuit Judge.

The government appeals from an order of the district court granting Defendant-Appellee Luz Maria Valenzuela's motion to suppress statements made after her arrest. Ms. Valenzuela and a codefendant were indicted for conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B), and possession with intent to distribute 100 kilograms or more of marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. The district court held that Ms. Valenzuela was arrested without probable cause at roadside when she was handcuffed and brought to the border patrol station. Accordingly, the district suppressed her post-arrest statements. We have jurisdiction pursuant to 18 U.S.C. § 3731, and we affirm.

Background

On November 21, 2002, at about 9:00 a.m., Border Patrol Agent Eugene Lewis was driving southbound on New Mexico State Highway 11. Highway 11 is the main route for northbound traffic going through Deming, New Mexico to Interstate 10. About four miles south of Deming, Agent Lewis observed a white Chevrolet pickup truck driving northbound with an American flag displayed on the hood and an American flag screen on the rear window. The truck bore an Arizona license plate. A maroon Cadillac was traveling in the same direction two or three cars behind the pickup truck and also bore an Arizona license plate. The truck and Cadillac aroused Agent Lewis's suspicions because of several recent alien smuggling cases involving Arizona vehicles. Agent Lewis turned around to get a closer look at the two vehicles.

As Agent Lewis approached the Cadillac, he noticed it was covered in a fine layer of dust, as if it had recently been driven on a dirt road. Agent Lewis also noticed that there was something odd about the bumper holding the trim in place, and that the Cadillac was weighted down in the back.

As Agent Lewis passed the Cadillac, the driver slowed down so that he was now further behind the pickup truck. The driver appeared to grip the wheel tightly and looked straight ahead without looking at the agent or otherwise acknowledging the agent's presence. Agent Lewis radioed in a check on the vehicle's registration, a stolen vehicle check, and a 72-hour lane check. The 72-hour lane check revealed that the Cadillac had not crossed into the United States from Mexico within the preceding 72 hours; the registration check showed that the owner of the Cadillac was a female, but Agent Lewis had seen that the driver was a male.

Continuing on Highway 11, Agent Lewis passed the Cadillac and the two vehicles that were between the Cadillac and the pickup truck. As he passed the pickup truck, the Agent Lewis saw the driver's head was resting on his or her hand, and the hand was covering the left side of the driver's face so that Agent Lewis could not determine whether the driver was male or female.

Agent Lewis continued to drive towards Deming, where he pulled over to get a second look at the Cadillac. He again noticed that the Cadillac appeared to be weighted down in the back, and radioed Agent Richard Huerta to assist in stopping the Cadillac. Agent Lewis then pulled back onto Highway 11 to follow the Cadillac, but was unable to get directly behind it because of traffic.

Agent Lewis next saw the two vehicles in Deming, and noted that the Cadillac sometimes traveled directly behind the pickup truck. Agent Lewis lost sight of the vehicles where Highway 11 passes under Interstate 10. In total, the two vehicles went through two stop signs and three stop lights from the point where Agent Lewis first observed them on Highway 11 to where they entered Interstate 10, approximately seven miles later.

Because both vehicles had Arizona plates, Agent Lewis suspected that they were driving in tandem and would turn onto westbound Interstate 10 towards Arizona. About eight miles from the intersection of Highway 11 and Interstate 10, Agent Lewis spotted the Cadillac as it was changing lanes and passing other vehicles. Agent Lewis sped up, and as he approached the Cadillac, he also saw that the pickup truck was about a quarter mile behind the Cadillac. Several tractor trailers and other vehicles were between the Cadillac and the pickup truck.

Agent Lewis passed the pickup truck, and pulled in behind the Cadillac. The Cadillac, which had been traveling at about 80 miles per hour in a 75 mile per hour zone, then slowed down to about 50-60 miles per hour. The pickup truck then passed Agent Lewis and the Cadillac, at which point Agent Lewis radioed Agent Huerta to tell him to look for it. Agent Lewis activated his emergency equipment and stopped the Cadillac.

Agent Lewis approached the driver, Julio Armando Reynaga-Cortes, and questioned him about his citizenship. At first Mr. Renaga acted confused, but then he said that he was from Mexico. Upon Agent Lewis's request, Mr. Reynaga produced two Republic of Mexico passports. Mr. Reynaga was visibly nervous and unable to locate the Visas in the passports. Agent Lewis then asked to see what was in the trunk. At first, Mr. Reynaga asked why he wanted to know, but upon repeated requests, Mr. Reynaga opened the trunk. Inside were bundles of marijuana.

Mr. Reynaga said he did not know the vehicle had anything in the trunk, and that he had picked up the vehicle at the Fina gas station in Columbus. Mr. Reynaga did not indicate that he was traveling with the pickup truck, nor was he asked any questions about the pickup truck at that point.

Agent Lewis then radioed Agent Huerta, informed him that marijuana had been found in the Cadillac and that the two vehicles were traveling in tandem, and asked Agent Huerta to stop the pickup truck and see if he could transport the driver to the Deming border patrol station.

Agent Huerta accordingly stopped the truck and asked the driver, Ms. Valenzuela, to accompany him to the station; Ms. Valenzuela agreed. Agent Huerta, however, did not allow Ms. Valenzuela to follow him to the station in her own truck. Instead, he took her keys and driver's license, and another agent drove her vehicle to the station. Because no female agents were present to pat down Ms. Valenzuela for weapons, an agent placed her in handcuffs prior to transporting her to the station. Ms. Valenzuela was cooperative with Agent Huerta at all times. Up until the time Ms. Valenzuela agreed to go to the station, Agent Lewis did not inform her that he was going to handcuff her. When Ms. Valenzuela was handcuffed, Agent Huerta observed nothing that made him think she was carrying drugs in her vehicle, possessed a weapon, or was otherwise dangerous or violating the law.

At the border patrol station, Agent Huerta advised Ms. Valenzuela of her Miranda rights, and Ms. Valenzuela signed a form indicating her understanding and waiver of those rights. Agent Christine Britol questioned Valenzuela for about 40 to 45 minutes, during which time Ms. Valenzuela made several incriminating statements. Finally, Ms. Valenzuela invoked her right to an attorney.

After an evidentiary hearing, the district court found that Ms. Valenzuela was arrested at roadside at the time the handcuffs were placed upon her. The parties then submitted supplemental briefs on whether probable cause existed to arrest Ms. Valenzuela. In a written opinion, the district court then considered and rejected six factors claimed by the government to support probable cause: (1) both the Cadillac and the truck driven by Defendant Valenzuela bore Arizona license plates, (2) Defendant Valenzuela and the driver of the Cadillac drove near each other on two highways close to the border, (3) when Agent Lewis passed Ms. Valenzuela's truck, her left hand was covering her face, (4) after Agent Lewis pulled in behind the Cadillac, Ms. Valenzuela passed the Cadillac rather than remain nearby to render assistance, (5) the Cadillac was covered with dust while the pickup truck was not, and (6) approximately 250 pounds of marijuana were found in the Cadillac. In a nutshell, the district court found that the government simply had not shown a nexus between the Cadillac and the pickup truck at the time of the arrest. No objective evidence supported the government's contention that the Cadillac and the pickup truck were traveling in tandem.

Having lost the probable cause issue, the government then moved for reconsideration of the district court's finding that Ms. Valenzuela was arrested at the time she was handcuffed. The government also requested a supplemental hearing to develop facts as to when Ms. Valenzuela was arrested. The district court rightly viewed the request for another hearing as "a second bite at the apple." Aplt.App. at 104. It denied both requests, reasoning that the issue of when Ms. Valenzuela was arrested was plainly before the court, there having been two rounds of briefing. Further, the court held that a finding contrary to the original determination would be completely against the evidence developed at the suppression hearing.

Discussion

The government's only argument on appeal is that the border patrol agents had probable cause to arrest Ms. Valenzuela when they took her to the border patrol station for questioning. The government does not challenge the district court's finding that Ms. Valenzuela was arrested when she was handcuffed, nor the district court's denial of the government's request to reopen the matter.

In reviewing a district court's order to suppress evidence,...