983 F.2d 1079 (9th Cir. 1992), 90-10455, U.S. v. Peinado-Leon

Docket Nº:90-10455.
Citation:983 F.2d 1079
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jorge Luis PEINADO-LEON, Defendant-Appellant.
Case Date:December 29, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1079

983 F.2d 1079 (9th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jorge Luis PEINADO-LEON, Defendant-Appellant.

No. 90-10455.

United States Court of Appeals, Ninth Circuit

December 29, 1992

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Jan. 13, 1992.

Appeal from the United States District Court for the District of Arizona, No. CR-90-00141-ACM; Alfredo C. Marquez, District Judge, Presiding.

D.Ariz. [Withdrawing and Superseding, 953 F.2d 1389 and 967 F.2d 594]

REHEARING DENIED; JUDGMENT REVERSED AND REMANDED.

Before SNEED, SCHROEDER and T.G. NELSON, Circuit Judges.

ORDER

The Government's Petition for Rehearing is DENIED and the Memorandum disposition filed February 5, 1992, and order filed July 8, 1992 are each withdrawn. The attached Memorandum disposition will be filed in its stead.

MEMORANDUM [*]

Jorge Luis Peinado-Leon (Peinado) appeals his conviction for possession with intent to distribute approximately 120 kilos of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii). Peinado alleges that the automobile search conducted by border patrol agents was unlawful and consequently the marijuana found pursuant to that search was inadmissible at trial.

On March 10, 1990, Peinado was approached by two border patrol agents as he returned to the yellow Ford LTD that he had parked in a restaurant parking lot. Earlier that afternoon one of the agents had seen the vehicle traveling very fast on a muddy road, known for drug trafficking. Prior to Peinado's return, the agents looked into the car and saw a clean jack and spare tire in the back seat. This aroused their suspicions because they had seen drug smugglers remove equipment typically stored in the trunk to make room for large quantities of drugs. As Peinado returned to the car, the border patrol agents introduced themselves and asked him where he was from. Peinado explained that he was from the area and that he worked for a man named "Pancho." Agent James Grasky then asked Peinado to open his trunk: "Please, I want you to open your trunk." Peinado responded by saying, "There is marijuana."

The district court determined that the search was not consensual, but nonetheless held that the search was justified because the Peinado's statement provided probable cause. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. We reverse.

I

INVESTIGATORY STOP

On appeal Peinado contends that the agents had no founded suspicion to stop and question him. This claim is without merit. A trial judge's finding of founded suspicion to stop based on specific, articulable facts is reviewed de novo. United States v. Carrillo, 902 F.2d 1405, 1410 (9th Cir.1990). We review de novo motions to suppress. United States v. Homick, 964 F.2d 899, 902 (9th Cir.1992).

Peinado was driving at a high rate of speed in a remote area on a muddy road that was a known route for drug and illegal alien trafficking. The border patrol agent observed this conduct and also found clean trunk equipment stored in the automobile's back seat. The agents' initial inquiry was brief, non-intrusive and occurred when Peinado approached his car in a public parking lot. Terry v. Ohio permits this sort of brief questioning to establish a person's identity and dispel reasonable suspicion of criminal activity. 392 U.S. 1, 21-22 (1968); see United States v. Jacobs, 715 F.2d 1343 (9th Cir.1983) (officer may make investigative stop of suspicious individual to maintain status quo while obtaining more information). Therefore, we conclude that the district court did not err in finding there was founded suspicion to stop Peinado.

II

SEARCH

Peinado also argues that even if there were founded suspicion for the initial stop, the trunk search was not based upon probable cause and therefore was unlawful. The district court rejected the Government's contention that the search was consensual, so probable cause was required. Whether a defendant voluntarily consented to a search depends upon the totality of circumstances and is a question of fact reviewed under the clearly erroneous standard. United States v. Kelley, 953 F.2d 562, 566 (9th Cir.1992).

After reviewing the record, we cannot conclude that the district court clearly erred in finding that the agent commanded Peinado to open the trunk, and therefore, that he did not consent to the search. Because Peinado did not consent to the search, we must consider whether Peinado's statement, "[t]here is marijuana," constituted probable cause for the agents' to search the trunk. See United States v. Dunn, 946 F.2d 615, 618-19 (9th Cir.) (officers may conduct warrantless search of automobile if they have probable cause),cert. denied, 112 S.Ct. 401 (1991). We hold that the statement did not provide probable cause for the search because both the statement and the marijuana were the fruit of an unlawful seizure.

The Fourth Amendment bars the use of any evidence obtained during an unlawful seizure, including verbal statements which constitute the fruit of that illegal seizure. Wong Sun v. United States, 371 U.S. 471, 485-86 (1963). Any evidence seized as a result of the illegally-obtained statements is also excluded under the Fourth Amendment. Id. at 487-88.

A person is seized "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." California v. Hodari D., 111 S.Ct. 1547, 1551 (1991) (internal quotations and citations omitted). We must determine whether a reasonable person in Peinado's situation would have believed he was free to leave the agents' presence when the command to open his trunk was given.

As Hodari D. points out, "[a]n arrest requires either physical force ...or, where that is absent, submission to the assertion of authority." Hodari D., 111 S.Ct. at 1551 (emphasis in original). Where a seizure is effected through a show of authority, as opposed to physical apprehension, the test is an objective one: "not whether the citizen perceived that he...

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