U.S. v. Delgado

• Decision Date: 07 October 2008
• Docket Number: No. 07-50238.,07-50238.
• Citation: 545 F.3d 1195
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Modesto DELGADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

545 F.3d 1195

UNITED STATES of America, Plaintiff-Appellee, v. Modesto DELGADO, Defendant-Appellant.

No. 07-50238.

United States Court of Appeals, Ninth Circuit.

Submitted July 16, 2008.^*

Filed October 7, 2008.

Mary F. Prevost, San Diego, CA, for appellant Modesto Delgado.

Lawrence E. Spong, Assistant United States Attorney, San Diego, CA, for appellee United States.

Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-06-00636-H.

Before: BARRY G. SILVERMAN, JOHNNIE B. RAWLINSON, and MILAN D. SMITH, JR., Circuit Judges.

RAWLINSON, Circuit Judge:

Appellant Modesto Delgado (Delgado) was convicted of possession of cocaine with the intent to distribute based on cocaine found during a warrantless inspection of his commercial truck in Missouri. Delgado challenges the district court's denial of his motion to suppress. Delgado maintains that commercial trucking is not subject to warrantless inspections as a pervasively regulated industry under New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Delgado also asserts that the state trooper's search of Delgado's truck violated the Fourth Amendment by going beyond the proper regulatory scope of an administrative search.

Additionally, Delgado challenges the district court's denial of his motion for judgment of acquittal due to improper venue. Delgado posits that venue was improper in the Southern District of California because there was no evidence that the cocaine was placed in his truck in southern California, and the government impermissibly relied on his confession without introducing independent corroborating evidence to support its veracity.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court's judgment.

I. BACKGROUND

Delgado was charged in a two-count indictment with conspiracy to distribute cocaine and possession of cocaine with the intent to distribute.

Delgado filed a motion in limine to suppress the evidence found in his truck, premised on Fourth Amendment violations. During the suppression hearing, Officer Jerrold Brooks, "a commercial vehicle officer for the Missouri State Highway Patrol," testified that he was responsible for enforcing Missouri's commercial vehicle regulations. Officer Brooks observed that he had "limited police powers. The Missouri state troopers have full police powers and they enforce all the regulations." Officer Brooks could not make custodial arrests. Instead, it was his responsibility "[t]o make sure the drivers are qualified to drive the trucks, have the right credentials, driver's license, logs, hours of service, equipment ... [and to] make sure that all their equipment is up to safety standards." According to Officer Brooks, he has the authority pursuant to Missouri's Code to stop vehicles "without observing any traffic violations."

While "parked on the side of I-44," Officer Brooks saw a passing truck with a company name that he did not recognize. He did not notice "any violations of the vehicle code," or "anything illegal at that time." Officer Brooks testified that the unfamiliar company name was important because "[t]here's a lot of new companies that come up, and we have found that sometimes they don't always have the right credentials or permits ..." Officer Brooks stopped the truck because "[he] just didn't recognize the markings or didn't know who it was, and to the best of [his] knowledge,[he had] never stopped it before, so [he] stopped it to do an inspection."

After stopping the truck, Officer Brooks asked the truck's driver, Cesar Delgado (Cesar),¹ for his driver's license, registration permits, shipping papers, and log book. Cesar did not respond to Officer Brooks' questions regarding the truck's cargo. Instead, Delgado "stepped through the sleeper curtains ... and stated that they were hauling speakers." Delgado confirmed that he was the truck's owner and driver.

When reviewing Cesar's log books, Officer Brooks observed that Cesar "only had two days logged," although commercial truck drivers are "required to have the day that they're operating on and seven previous days of log to show ... what they've been doing in the past eight-day period." Cesar "only had the day that [Officer Brooks] stopped him on and the previous day." Cesar's log books violated the applicable regulations. Officer Brooks noticed additional discrepancies between Cesar's and Delgado's log books regarding the hours on-duty.

According to Officer Brooks, Cesar confirmed that he started the trip in Phoenix, Arizona, as reflected in Cesar's log books. However, Delgado's log books indicated that the load was picked up in Otay Mesa, California, and "[t]he shipping papers showed San Diego, California." Delgado's log book also reflected that Cesar was the co-driver in California. Officer Brooks testified that Delgado's log book "appeared to be in order." However, Officer Brooks was uncertain "how [Cesar] got to Phoenix, Arizona, since he lived in the same place that [Delgado] did."

Officer Brooks also discovered that Cesar had an invalid California driver's license, which violated Missouri's regulations and vehicle code.

Officer Brooks asked Cesar whether the truck contained the required fire extinguisher and reflective triangles. Cesar "got out [of the truck] and tried to open the side box to show [Officer Brooks] the fire extinguisher and triangles," but was unable to open the door. Delgado told Officer Brooks that "he could unlock that door from the inside.... And he stepped across and asked [Officer Brooks] to step back and shut the driver's door first." Officer Brooks found this unusual, because "[Officer Brooks] couldn't imagine why [Delgado] had to shut that door before he handed [Officer Brooks] ... the fire extinguisher and triangles."

When Delgado unlocked the side door, Officer Brooks "saw the fire extinguisher that was laying [sic] there and [he] leaned up there to see that it was charged." Delgado then "slammed or let the bunk down pretty hard," which Officer Brooks thought "was a little odd."

Officer Brooks testified that "this just didn't seem to appear to be a normal trucking operation." He contacted a state trooper because Officer Brooks "saw some indicators that [he] had seen in years past that [he had] been trained in that may be some suspicious activity ... and because Officer Brooks was not allowed to search or seize." Additionally, Officer Brooks "never did get an answer from [Cesar or Delgado] when definitely [Cesar] got in the truck." "It appeared to [Officer Brooks] that something ... was out of the ordinary. Something wasn't right. So, [he] called [the state trooper] to come and investigate."

Officer Brooks "showed [State Trooper Sergeant McMullin] the bills and the log books and something didn't match, and one driver said he got in in the Phoenix area, and the other one had left at the same address or the same town that both drivers stated on their log—or their driver's license ..." Officer Brooks also informed Sergeant McMullin of the three violations Officer Brooks had found. Finally, Officer Brooks informed Sergeant McMullin that Delgado's slamming down the bunk bed "was very suspicious. It was kind of out of the ordinary and it wasn't normal."

The three violations found by Officer Brooks were a light that was out; the incomplete entries in Cesar's log book; and Cesar's invalid driver's license. Officer Brooks concluded that the violations did not warrant a citation. However, having false log books was a misdemeanor in Missouri.

Sergeant Jack McMullin, a state trooper for the Missouri State Highway Patrol, testified that state troopers have "more authority in the sense of arrest" than commercial vehicle officers (CVOs). According to Sergeant McMullin, he is contacted by CVOs when there is suspected criminal activity.

Sergeant McMullin acknowledged that CVOs call him "because they suspect[ ] drug trafficking." However, Officer Brooks did not tell Sergeant McMullin "that he suspected that this was a drug courier truck." According to Sergeant McMullin, Officer Brooks and his partner contacted him "[d]ue to their concern about entries in the log book and responses they had got when asked questions about the entries in the log book." Sergeant McMullin was also made aware of Cesar's invalid driver's license. In addition, the log books were "indicators that led [them] to believe there was possible criminal activity." The CVOs relayed that Cesar and Delgado "were nervous." The CVOs never told Sergeant McMullin that they were not going to issue a citation.

After he spoke with Officer Brooks, Sergeant McMullin asked Delgado to exit the truck. Sergeant McMullin inquired about the discrepancies in the log books, and "the Phoenix deal." Delgado responded that "they were in Phoenix, but they were there just for a short while and that they remained in the truck. They didn't even get out." Sergeant McMullin did not "get an explanation that satisfactorily explained why there were discrepancies." Sergeant McMullin testified that his suspicions were based on "[t]he log book, the demeanor of the two individuals, the situation itself ..."

Sergeant McMullin received Delgado's consent to search the truck. While searching the truck, Sergeant McMullin found a suitcase containing "two empty duffle bags." Sergeant McMullin believed that the empty duffle bags were unusual because, in his experience, "these were used to bring drugs or money into the vehicle." Sergeant McMullin also "located a false wall at the front of the sleeper ..." Sergeant McMullin "lifted the lid [and] saw the drugs inside ..." Forty-two packages of cocaine, weighing a total of 41.99 kg., were seized.

Delgado denied giving Sergeant McMullin consent to search the truck. Delgado also testified that Cesar got into the truck at his house in Colton, California, not in Arizona.

Delgado was charged with conspiracy...