U.S. v. Santamaria-Hernandez

• Decision Date: 07 July 1992
• Docket Number: D,SANTAMARIA-HERNANDE,No. 91-50376,91-50376
• Citation: 968 F.2d 980
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Victor Manuelefendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 980

968 F.2d 980

UNITED STATES of America, Plaintiff-Appellant, v. Victor Manuel SANTAMARIA-HERNANDEZ, Defendant-Appellee.

No. 91-50376.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1992.

Decided July 7, 1992.

David P. Curnow, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellant.

Jeanne G. Knight, Asst. Federal Public Defender, San Diego, Cal., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: CANBY, REINHARDT and WIGGINS, Circuit Judges.

CANBY, Circuit Judge:

The government appeals the district court's order suppressing evidence obtained after the automobile of the defendant, Victor Manuel Santamaria-Hernandez, was stopped by border patrol agents. The pivotal issue is whether the "founded suspicion" essential to the stop of Santamaria's car may be based in part on events occurring after the border patrol car turned on its red lights and siren, but before Santamaria's car was actually stopped after a chase. The government argues that the Supreme Court decision of California v. Hodari D., --- U.S. ----, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), decided after the district court had ruled, allows founded suspicion to be based on events occurring during the chase. We agree, and accordingly we reverse.

FACTS

On October 28, 1990, a border patrol agent stationed atop a viewpoint overlooking the San Ysidro, California Port of Entry from Mexico received a radio message that suspected illegal aliens had crossed the border and were walking north along Interstate 5. Shortly thereafter, the agent saw a group of pedestrians cross Interstate 5 on foot on the United States side of the border. The agent lost sight of them when they neared a set of bushes behind a Burger King and a Union 82 market, and he did not see them again. The agent testified that he suspected that they were illegal aliens because, in his experience, all of those who cross Interstate 5 on foot are illegal aliens, and because they went to a A few minutes later, the agent saw a yellow Ford Maverick with a blue fender and a black top leave the parking lot of the Burger King and the Union 82 market. The car stopped for 20-30 seconds before entering the street, which the agent identified as a counter-surveillance tactic. The driver did not go north on Interstate 5, but instead went south toward Mexico and then turned around just before the border and proceeded north on Interstate 5. The agent testified that this circuitous route is a common counter-surveillance tactic used by smugglers of illegal aliens, who turn north only if they believe they are not being watched. The agent then notified other agents in the area that the car was proceeding north and that he suspected that it was transporting illegal aliens.

place well-known as a staging area for smuggling illegal aliens.

Two agents in a border patrol car spotted the vehicle in question and followed it. They could see two people in the vehicle (the driver and a front seat passenger) and noted that it was traveling 50-55 miles per hour. When the driver of the vehicle appeared to detect the border patrol car (before the latter activated its lights or siren), he accelerated, moved over to the left side of the freeway, and began weaving in and out of traffic. The agents then activated the emergency lights and siren.

At that point, the agent saw three heads "pop up" in the back seat of the Maverick, and the car speeded up to 70 to 80 miles per hour. It exited the freeway and immediately reentered heading south. The agents chased the Maverick for approximately five miles, finally stopping it at the San Ysidro Port of Entry, approximately 20 feet from the border to Mexico. After they stopped the car, the agents restrained Santamaria, the driver, and removed him from the Maverick.

A federal grand jury indicted Santamaria for transporting illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(B). The district court subsequently granted Santamaria's motion to suppress on the ground that the agents lacked founded suspicion to stop him at the time they activated their emergency lights and siren. The government now appeals that ruling.

DISCUSSION

I. When was Santamaria seized?

The district court's ruling that "seizure" occurred at the time the border patrol car turned on its lights and siren was based on our precedent at the time. We so held in United States v. Morrison, 546 F.2d 319, 320 (9th Cir.1976), and stated that "[t]he command [to halt] must be valid when given; its character is not changed by the motorist's response." Id. at 320. Thus, founded suspicion had to exist "at the time the officers initiate the stop." United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir.1985); accord United States v. Robert L., 874 F.2d 701, 703 (9th Cir.1989). The district court, relying on Robert L., did not consider any of the post-siren events in determining whether or not the police had a founded suspicion for the stop.

The government does not dispute the district court's reading of our cases but argues that the subsequent decision of the Supreme Court in Hodari D. changes the point at which seizure must be deemed to occur. The government's argument is compelling.

Hodari D. involved some youths who ran away from two approaching police officers. One of the youths (Hodari) ended up running directly toward another police officer; Hodari did not see the officer until he was almost upon him, at which time he tossed away what appeared to be a small rock, which turned out to be crack cocaine. A moment later, the officer tackled and handcuffed Hodari. Hodari D., 111 S.Ct. at 1549. The question before the Supreme Court was whether the crack cocaine should have been suppressed because, at the time the cocaine was dropped, Hodari had been "seized" within the meaning of the Fourth Amendment. ¹ As the Supreme The Court ruled that a seizure does not occur if, in response to a show of authority, the subject does not yield; in that event, the seizure occurs only when the police physically subdue the subject. Id. at 1550. "In sum, assuming that [the officer's] pursuit in the present case constituted a 'show of authority' enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tacked." Id. at 1552 (emphasis added).

Court noted, this question was relevant to the existence of founded suspicion, because the officer's seeing Hodari disposing of the crack cocaine could provide founded suspicion for the subsequent tackling. Id. at 1549.

Santamaria argues that Hodari D. should be limited to its facts, so that it would apply to this case only if Santamaria had tossed contraband or illegal aliens from his car. That argument ignores the main point of Hodari D.--that one who flees upon a show of authority is not seized until he or she is physically apprehended. It was the flight, not the discarding of the rock cocaine, that postponed the point of seizure in Hodari D. And it was flight that postponed the seizure of Santamaria.

Nor is there any reason to conclude that the reasoning of Hodari D. would not apply to automobile chases as well as foot chases. Indeed, the Supreme Court in Hodari D. relied in part on Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), which involved a twenty-mile automobile chase ending in a fatal crash into a police barricade. The Hodari D. opinion noted that in Brower, the Court "did not even consider the possibility that a seizure could have occurred during the course of the chase because ... that 'show of authority' did not produce his stop." Hodari D., 111 S.Ct. at 1552 (quoting Brower, 489 U.S. at 597, 109 S.Ct. at 1381).

It is clear, then, that Hodari D. governs this case if it is to be applied retroactively. In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d...