454 F.3d 1142 (10th Cir. 2006), 05-2308, United States v. Carrizales-Toledo

Docket Nº:05-2308.
Citation:454 F.3d 1142
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose Roberto CARRIZALES-TOLEDO, Defendant-Appellant.
Case Date:July 20, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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454 F.3d 1142 (10th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jose Roberto CARRIZALES-TOLEDO, Defendant-Appellant.

No. 05-2308.

United States Court of Appeals, Tenth Circuit.

July 20, 2006

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[Copyrighted Material Omitted]

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Dennis J. Candelaria, Assistant Federal Public Defender, Las Cruces, NM, for the Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the brief), Las Cruces, NM, for the Plaintiff-Appellee.

Before O'BRIEN, McWILLIAMS, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Jose Roberto Carrizales-Toledo was apprehended near the Mexican border driving a pickup truck containing over 500 pounds of marijuana. During his initial detention, Mr. Carrizales-Toledo made self-incriminating statements to the border patrol agent before and after receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He entered a conditional plea of guilty to one count of possession with intent to distribute 100 or more kilograms of marijuana, reserving the right to appeal the district court's order denying his motion to suppress evidence of the marijuana and of his incriminating statements.

I. BACKGROUND

On the morning of December 30, 2004, United States Border Patrol Agent Bernardo Ramirez was patrolling in a marked Border Patrol unit in the vicinity of Hachita, New Mexico. Hachita is a rural area in the "bootheel" region of New Mexico, close to the border between the United States and Mexico. Agent Ramirez had worked in this remote area for four years. On this particular morning he was patrolling alone.

Just before 9:00 a.m., Agent Ramirez turned onto Peterson Ranch Road, a single-lane dirt road that extends through private land (the Peterson Ranch) from New Mexico Highway 81 to the Mexican border. Agent Ramirez had previously encountered smuggling loads in the area, and less than a week earlier some of his colleagues had intercepted and seized a 900-pound load of marijuana on the road. After traveling east on Peterson Ranch Road for approximately three miles, Agent Ramirez encountered the Peterson family, who were driving in the opposite direction. Agent Ramirez asked whether there would be any ranch personnel working further east on their property that day, and Mr. Peterson said there would not. The Petersons left and Agent Ramirez continued driving east toward the border.

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After driving another mile down the road, Agent Ramirez saw a gray Chevrolet pickup truck driving toward him on the Peterson Ranch Road. He was approximately 12 to 15 miles from the border between the United States and Mexico at that time. Although Agent Ramirez was familiar with the local residents and their vehicles, he did not recognize the oncoming truck or its driver.

According to Agent Ramirez, as the vehicle approached he pulled to the side of the road to allow the driver to pass. Instead of driving past him, however, the driver stopped, looked behind him, and started driving backwards in an erratic manner. At that point Agent Ramirez suspected the driver was involved in unlawful activity. He began following the truck but did not engage his emergency lights or siren. After Agent Ramirez trailed the vehicle for about 100 yards, the driver of the truck suddenly brought his vehicle to a halt. Agent Ramirez applied his brakes, skidded a short distance, and came to a stop with his front bumper touching the front bumper of the truck.

After his vehicle had come to a stop, Agent Ramirez looked up and saw that the driver of the truck had his hands in the air. Agent Ramirez then exited his vehicle, unholstered his firearm (but did not point it at the driver), yelled for the driver to keep his hands in the air, and began walking toward the passenger side of the truck. As Agent Ramirez approached the truck, he saw several square-shaped bundles wrapped in cellophane on the truck's passenger seat and floorboard area. He also saw a large blanket covering what appeared to be more bundles lying inside the extended cab of the truck. Based on his experience as a Border Patrol agent, he suspected that these bundles contained marijuana.

Upon reaching the passenger side of the truck, Agent Ramirez tried to open the passenger-side door but found that it was locked. The driver, later identified as Mr. Jose Roberto Carrizales-Toledo, used the electric-door locks to unlock the door. Agent Ramirez then opened the door and could immediately smell the marijuana inside the truck.

With the door open and Mr. Carrizales-Toledo's hands still in the air, Agent Ramirez asked the driver, in Spanish, "what he's doing." Motion Hearing Transcript ("Mot. Hr'g Tr.") 15. Mr. Carrizales-Toledo said he "was trying to get back to Mexico because he didn't want [the Agent] to catch him with all that stuff." Id. Agent Ramirez then asked him, "With what stuff?" Id. Mr. Carrizales-Toledo replied, "This stuff. The marijuana." Id.

At that point, Agent Ramirez walked to the other side of the truck, removed Mr. Carrizales-Toledo, placed him in handcuffs, and took him to his patrol car. Agent Ramirez put Mr. Carrizales-Toledo in the backseat and read him the Miranda warnings in Spanish. Mr. Carrizales-Toledo indicated that he understood his rights, and agreed to make a statement without a lawyer being present. Agent Ramirez then called for assistance.

After two or three additional Border Patrol agents had arrived at the scene, the agents began questioning Mr. Carrizales-Toledo again. During this second interrogation, Mr. Carrizales-Toledo told the Agents that he was trying to cross into the United States but did not have enough money to hire a smuggler. He claimed that an unidentified male offered him $700 to smuggle the marijuana across the border into the United States. Mr. Carrizales-Toledo was supposed to drive the truck, loaded with marijuana, to a gas station on the outskirts of Deming, New Mexico, where he would deliver the truck and its contents to an unknown individual. After hearing this confession, the Agents

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brought Mr. Carrizales-Toledo back to the Border Patrol station, where he signed a document saying that he had been given the Miranda warnings.

On April 21, 2005, a federal grand jury in the District of New Mexico returned an indictment charging Mr. Carrizales-Toledo with possession with intent to distribute 100 or more kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B). On May 3, 2005, Mr. Carrizales-Toledo filed a motion to suppress any statements and physical evidence seized as a result of his detention and arrest on December 30, 2004. The district court held an evidentiary hearing on the motion to suppress on May 17, 2005.

At the hearing, Agent Ramirez offered the preceding account of the circumstances surrounding their encounter. Mr. Carrizales-Toledo offered a different version of the events. For example, he claimed that he was the one who pulled to the side of the road, and that after his truck had stopped Agent Ramirez drove directly at him to block the truck's path. He also denied driving his truck in reverse after seeing the Border Patrol vehicle. The district court weighed the conflicting testimony of Agent Ramirez and Mr. Carrizales-Toledo, and found that Agent Ramirez's testimony was "more consistent, plausible, and credible." Order 7.

Based on Agent Ramirez's account of the events, the court held that the encounter between the agent and Mr. Carrizales-Toledo became a seizure within the meaning of the Fourth Amendment when the front bumper of the Border Patrol vehicle made contact with the front bumper of Mr. Carrizales-Toledo's truck, that Agent Ramirez had reasonable suspicion to conduct an investigative stop, and that the agent had probable cause to arrest Mr. Carrizales-Toledo. Consequently, the court denied Mr. Carrizales-Toledo's motion to suppress the evidence obtained in the search and seizure of his vehicle.

The court also denied the motion to suppress Mr. Carrizales-Toledo's self-incriminating statements, despite the lack of Miranda warnings before the defendant first admitted to having marijuana in the truck. It found that even if Mr. Carrizales-Toledo was in custody during the initial questioning, a reasonable officer in Agent Ramirez's situation would have been concerned over the possibility that there was a concealed weapon in the truck, and therefore the Agent's brief interrogation falls under the "public safety" exception to Miranda.

On June 6, 2005, Mr. Carrizales-Toledo entered a conditional plea of guilty to the Indictment, reserving the right to appeal the district court's order denying the suppression motion. The court entered judgment against Mr...

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