U.S. v. Hernandez

• Citation: 314 F.3d 430
• Decision Date: 30 December 2002
• Docket Number: No. 02-50155.,02-50155.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Benito HERNANDEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

314 F.3d 430

UNITED STATES of America, Plaintiff-Appellee, v. Benito HERNANDEZ, Defendant-Appellant.

No. 02-50155.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2002.

Filed December 30, 2002.

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Todd W. Burns, Federal Public Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Bruce R. Castetter, Assistant United States Attorney, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; M. James Lorenz, District Judge, Presiding. D.C. No. CR-01-02712-MJL.

Before: CANBY, GOULD and BERZON, Circuit Judges.

GOULD, Circuit Judge.

In this case, we must decide whether the defendant Hernandez's presence in the rear seat of a vehicle containing commercial quantities of illegal drugs, in conjunction with all the other circumstances known to the arresting officers, created probable cause to arrest him.

I

On August 21, 2001, Benito Hernandez was sitting in the rear seat of his uncle's Ford Windstar Minivan when the vehicle entered the United States from Mexico. Hernandez's uncle and aunt respectively sat in the front driver seat and front passenger seat of the minivan. At the primary inspection area, a narcotics detector dog alerted to the presence of narcotics in the minivan. After the dog alert, Senior Customs Inspector Edwin Smura obtained a declaration from the driver, checked the legal status of the occupants, and asked the driver where he was going in the United States and where he was coming from in Mexico. While conducting this questioning, Inspector Smura noted that, "[the van's passengers] all seemed very nervous; very stiff, no eye contact, and [Jose Diaz, the driver,] seemed very slow to answer questions."

After this questioning, Inspector Smura used a density meter to check the vehicle and obtained a very high reading on the driver's side of the van. Next, Smura asked the driver, Jose Diaz, to step out of the van. Smura searched the inside of the driver's door and saw clear plastic wrapped packages that he believed contained illegal drugs.

The three occupants of the minivan were then handcuffed and escorted to a secondary security office where the handcuffs were removed. The occupants were required to wait on a bench. About five to ten minutes after the three occupants were taken to the security office, the contents of the packages were confirmed to be marijuana, which was later determined to weigh 44.20 kilograms (97.24 pounds). At this point all three occupants of the minivan, including Hernandez, were again handcuffed, and Hernandez was advised of his Miranda rights. Hernandez chose to make a statement and admitted that he was being paid $500 to act as "window dressing" to facilitate the smuggling of the marijuana by giving the impression of an innocent family returning from vacation.

On December 12, 2001, Hernandez pled guilty to one count of importing marijuana in violation of 21 U.S.C. §§ 952 and 960 and 18 U.S.C. § 2 pursuant to a conditional plea agreement that preserved his right to appeal the court's denial of (1) his motion to suppress; and (2) his motions related to Apprendi. On May 5, 2002, the district court sentenced Hernandez to one month imprisonment, and three months residence in a halfway house during the beginning of his three year term of supervised release. This appeal follows.

II

"The task of guarding our country's border is one laden with immense responsibility."¹ United States v. Bravo, 295 F.3d 1002, 1005 (9th Cir.2002). Border agents serve as our first line of defense in preventing people intent on violating our laws from coming into our country. But in doing so, these border agents have a related duty to protect the basic rights of individuals who legally cross into our country. To effectuate the dual goals required of our border agents, we have allowed border agents to search both persons and objects that arrive at our borders "without any articulable level of suspicion, so long as the search is routine." See United States v. Okafor, 285 F.3d 842, 845 (9th Cir.2002). But we have maintained the requirement that police, and here border agents, need probable cause to make a warrantless arrest of an individual. See United States v. Del Vizo, 918 F.2d 821, 825(9th Cir.1990). Whether border agents have probable cause to arrest an individual is a mixed question of law and fact. United States v. Buckner, 179 F.3d 834, 837 (9th Cir.1999). Probable cause exists if, under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that the individual had committed a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Bailey v. Newland, 263 F.3d 1022, 1031 (9th Cir.2001). We conclude that border agents had probable cause to arrest Hernandez.²

Hernandez argues that his "mere presence" as a rear seat passenger in a van carrying drugs across the border is not enough to establish probable cause to arrest him. At issue here is not whether Hernandez's mere presence in the minivan supported his arrest but whether his presence, his relationship to others in the vehicle, his behavior at the border and his proximity to a large amount of illegal drugs in the minivan gave officers sufficient probable cause to arrest him.

We begin by determining the point at which Hernandez was arrested. The standard for determining whether a person is under arrest is not simply whether a person believes that he is free to leave, see United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), but rather whether a reasonable person would believe that he or she is being subjected to more than "temporary detention occasioned by border-crossing formalities." United States v. Butler, 249 F.3d 1094, 1100(9th Cir.2001).

Hernandez claims that he was arrested when the officers placed handcuffs on him and escorted him to the secondary security office. The government argues that Hernandez was arrested not when the officers temporarily placed handcuffs on Hernandez to escort him to the security office but instead when handcuffs were placed on Hernandez in the security office following the positive identification of marijuana in the minivan.

In Bravo, we held that the defendant was not under arrest while border agents searched his car even though Bravo was temporarily handcuffed while he was escorted to a secondary office and then uncuffed and allowed to sit on a bench while his vehicle was being searched. 295 F.3d at 1011. These facts parallel the situation here. Hernandez was removed from the minivan, temporarily placed in handcuffs while he was taken to a secondary office, and then left uncuffed in the secondary office until it was confirmed that the packages in the door of the minivan contained marijuana. We hold, under Bravo, that Hernandez was arrested by border agents in the security office after the agents positively identified the marijuana in the minivan, not while Hernandez was temporarily handcuffed by border agents while being escorted from his uncle's minivan to the security office.

Turning to whether probable cause existed to arrest Hernandez, we examine the situation the border officers were presented with at the time of Hernandez's arrest. Hernandez was sitting in the rear seat of a Ford Windstar minivan—a vehicle known by officers to be commonly used for drug trafficking. The questioning officer learned that Hernandez was not a mere casual hitchhiker, but was a relative of the driver and front-seat passenger. The officers removed a portion of the door of the minivan and discovered clear bags that appeared to contain commercial quantities of illegal drugs. When the customs inspector interviewed the driver of the minivan, Hernandez acted suspiciously, seemed very nervous and stiff and tried to avoid eye contact with the inspector. The border agents also saw that the purported drugs were within arm's reach of Hernandez. The purported drugs were confirmed to be marijuana, in a sizable amount beyond that for individual use.³

Applying United States v. Heiden, 508 F.2d 898, 901-902 (9th Cir.1974), we hold that Hernandez's presence as a rear seat passenger in a vehicle containing commercial quantities of illegal drugs, together with his suspicious behavior, his relationship to the other occupants of the vehicle, and his proximity to those illegal drugs, gave border agents probable cause to arrest him. In Heiden, border agents stopped a car suspected of transporting illegal aliens. Id. at 900. The driver of the car was unable to produce a key to the trunk, and when asked to remove the back seat, the driver said he did not know how. Id. When the agent and the driver removed the seat, the agent smelled marijuana. Id. Upon further inspection, agents discovered 110 pounds of marijuana in the trunk. Id. Heiden and the driver were arrested, and the officers later discovered the missing trunk key in Heiden's sock. Id. Heiden sought to suppress evidence of the missing key, claiming the officers lacked probable cause to arrest him. Id. Heiden held that border agents have probable cause to arrest a passenger in a motor vehicle when border agents have a reasonable belief that the passenger is involved in transporting a commercial quantity of illegal drugs.⁴ Id. Although Hernandez was not the sole passenger in the vehicle and was a rear-seat rather than front-seat passenger, we conclude under our reasoning in Heiden that border agents here had a reasonable belief that Hernandez was involved in the transportation of a commercial quantity of illegal drugs because of his presence in the rear seat of the minivan, his suspicious unresponsive behavior at the border, his relationship to the...