U.S. v. Guzman-Padilla

• Citation: 573 F.3d 865
• Decision Date: 23 July 2009
• Docket Number: No. 08-50114.,No. 08-50118.,08-50114.,08-50118.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel GUZMAN-PADILLA, Defendant-Appellant, and Juan Vasquez-Rosales, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

573 F.3d 865

UNITED STATES of America, Plaintiff-Appellee, v. Daniel GUZMAN-PADILLA, Defendant-Appellant, and Juan Vasquez-Rosales, Defendant-Appellant.

No. 08-50114.

No. 08-50118.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 2009.

Filed July 23, 2009.

Karen P. Hewitt, U.S. Atty., and Mark R. Rehe, Asst. U.S. Atty., San Diego, CA, for Plaintiff-Appellee.

Shaun Khojayan (argued), San Diego, CA, for Defendant-Appellant Juan Vasquez-Rosales.

Janet C. Tung (briefed) and Ellis M. Johnston, III (argued), Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant Daniel Guzman-Padilla.

Appeals from the United States District Court for the Southern District of California, Irma E. Gonzales, Chief District Judge, Presiding. D.C. No. CR-07-695-IEG.

Before HARRY PREGERSON and DAVID R. THOMPSON, Circuit Judges, and JEREMY FOGEL,^* District Judge.

FOGEL, District Judge:

Daniel Guzman-Padilla ("Guzman") and Juan Vasquez-Rosales ("Vasquez") (collectively, "Appellants") appeal the district court's denial of their motions to suppress evidence discovered during a stop and search of their vehicle by U.S. Border Patrol agents on February 4, 2007 near the border between the United States and Mexico. Believing that Appellants' vehicle recently had crossed the border and was carrying contraband, Border Patrol Agent Marc Battaglini instructed that a controlled tire deflation device ("CTDD") be deployed in the vehicle's path. As intended, all four of the vehicle's tires were deflated within approximately a half-mile, and the vehicle pulled to the side of the highway.

In the district court, Appellants argued that suppression was required because the use of the CTDD converted the stop into an "arrest" for which the requisite probable cause was lacking, and because the unannounced use of the device amounted to excessive force. The government argued, and the district court agreed, that the stop was an investigative detention authorized under the rubric of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that it was conducted in a reasonable manner. The district court also rejected Guzman's request under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for production of the Border Patrol's Policy Manual governing the use of CTDDs, finding that the manual was immaterial to the question of Fourth Amendment reasonableness.

Vasquez entered a guilty plea while reserving his right to appeal the court's denial of his motion to suppress. Guzman was found guilty following a bench trial on stipulated facts. In these consolidated appeals, the parties renew the contentions they made in the district court, but the government also contends that the stop was justified under the border search doctrine. We agree that the stop of Appellants' vehicle was a valid seizure incident to an extended border search, and that the force used to effect the stop was not excessive. We therefore affirm.

BACKGROUND

Our decision today is informed to a significant degree by the unique geographic and topographical features of the southeast corner of Imperial County, California, where the events underlying these appeals occurred. Of particular importance are two valleys called the A-7 and the Buttercup. Each consists of a rugged floor lined by tall sand dunes, many of which themselves contain interior valleys or depressions. Both valleys run uninterrupted from Mexico to a public campsite on the United States side of the border, where they converge. From that point, a paved road leads to Interstate 8. Border Patrol Agent Battaglini, a member of the Smuggler Targeting Action Team ("STAT") who for six years has been deployed extensively in this part of the Imperial Sand Dunes, is intimately familiar with the local terrain. In his experience patrolling the area in a variety of transports ranging from all-terrain vehicles to Ford Expeditions such as the one driven by Appellants on the day in question, substantial vehicular modifications — such as elevated suspension systems or special "paddle tires" — are necessary to cross the dunes that abut either valley. Thus, "unmodified" four-wheel-drive vehicles are confined to the valley floor, which forms an unbroken conduit from Mexico to the United States. The valleys also converge in a manner that affords observers at the Buttercup Campground an unobstructed view of exiting dune traffic. As such, the location of the campground, which is less than two miles from the border, corresponds to a natural choke point for the interception of illicit goods or persons. The flow of such goods and persons is considerable: at the time of the events in question, Battaglini had been involved personally in the arrest of fifty to sixty drug or alien smugglers in the area.

At about 8:30 AM on February 4, 2007, Battaglini and fellow Border Patrol Agent Michael Harrington began their surveillance duty at the Buttercup Campground, training their sights on the outlets of the two valleys. Several times during the day, agents from the nearby Yuma Border Patrol Station drove into the A-7 Valley and reported no unusual vehicle sightings. The trickle of morning recreational traffic ebbed by early afternoon — likely because it was Super Bowl Sunday — and by mid-afternoon the dunes were empty. It was under these conditions that Appellants' white Ford Expedition emerged from the A-7 Valley at approximately 3:30 PM. When first sighted, the vehicle was approximately one and a half miles from the border. From a distance of about a half-mile, Battaglini made several observations. First, he considered the vehicle's speed — approximately twenty to twenty-five miles per hour — unusually fast for the terrain; he later testified that five miles per hour would be an appropriate speed to avoid "beating up" an ordinary four-wheel-drive vehicle. Second, he noticed that the vehicle bore no apparent modifications that would have permitted it to enter the valley from anywhere but its Mexican entrance to the south. Third, he observed that the vehicle lacked the orange safety flag and recreational permit required by the federal agency that manages the Imperial Dunes and was driving in a straight path uncharacteristic of recreational use.

Battaglini radioed nearby members of the STAT Unit and informed them of the approaching vehicle. Soon thereafter, the Expedition drove directly past the agents' unmarked patrol cars, affording the agents a view into its fully enclosed interior. Battaglini observed that the entire rear portion of the cabin was covered by a black tarp, something which he had seen exclusively in vehicles ultimately stopped for smuggling. He also noted that the vehicle bore Mexican license plates, a feature he considered rare in the Imperial Sand Dunes. Battaglini watched as the vehicle proceeded toward the highway, rolling through a stop sign, and, after passing the desired entrance ramp, reversing course in the middle of the road.

Collectively, Battaglini's observations caused him to feel certain that the vehicle was smuggling drugs, aliens, or other illicit goods, and he determined to stop it using a CTDD. The device consists of an accordion-like tray containing small, hollow steel tubes that puncture the tires of a passing vehicle and cause a gradual release of air. The vehicle then ordinarily may travel for approximately a quarter to a half of a mile before complete deflation occurs. Battaglini testified that the Border Patrol uses CTDDs in three instances: where a vehicle (1) has made a "confirmed illegal entry" from Mexico; (2) has been observed taking on or discharging narcotics or illegal aliens; or (3) fails to yield during an attempted stop, giving rise to pursuit. Battaglini also testified that the Border Patrol does not use CTDDs in the vicinity of bridges, hills, curves in the roadway, or metropolitan areas, or in the presence of heavy traffic. He testified that several agents typically coordinate with one another during deployment of a CTDD to keep other motor traffic away from both the suspect vehicle and the device. He explained that the Border Patrol uses CTDDs as a first resort because smugglers rarely yield to lights or sirens and frequently engage in desperate attempts to escape apprehension, including by crossing freeway medians, driving into oncoming traffic, and leading officers on high-speed pursuits. He testified that in multiple cases, the use of lights and sirens caused erratic behavior that resulted in the deaths of innocent bystanders.

Before authorizing deployment of the CTDD, Battaglini conferred with his supervisor by radio, confirming, based on the circumstances of its emergence from the A-7 Valley, that Appellants' vehicle had made an illegal entry. Battaglini and Harrington followed the vehicle for approximately ten miles before the device was deployed by another member of the STAT Unit. Presumably because it was the afternoon of Super Bowl Sunday, highway traffic was light, and the agents kept what little traffic there was away from the zone of deployment. The stretch of road where the device was deployed was open and flat, with no nearby structures, hills, or other hazards. After Appellants' vehicle passed over the spike strip, both agents activated their lights and sirens. The Expedition proceeded approximately a half-mile before its tires went flat and it pulled to the side of the road.

As Battaglini stepped out of his vehicle, the door of the Expedition swung open and Vasquez began to exit. At that moment, Battaglini encountered a strong odor of marijuana. He approached the vehicle with his weapon drawn and ordered Vasquez to remain inside. When he reached the vehicle, he removed Vasquez, handcuffed him, ordered him onto his knees, and patted him down. Agent Harrington restrained Guzman. The agents then discovered approximately 479.95 kilograms (1,058.1 pounds) of marijuana, which had an estimated retail value of...