US v. Olafson

• Decision Date: 03 February 2000
• Docket Number: No. 99-50216.,99-50216.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Heather Ladon OLAFSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

213 F.3d 435

UNITED STATES of America, Plaintiff-Appellee, v. Heather Ladon OLAFSON, Defendant-Appellant.

No. 99-50216.

United States Court of Appeals, Ninth Circuit.

Submitted January 6, 2000¹

Filed February 3, 2000

Amended May 22, 2000

Charles T. McCutcheon, El Cajon, California, for the defendant-appellant.

David P. Curnow, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Before: HALL, TROTT, and W. FLETCHER, Circuit Judges.

ORDER

TROTT, Circuit Judge:

The opinion filed February 3, 2000 203 F.3d 560, is hereby amended as follows:

At slip opinion page 1166, first full paragraph 203 F.3d at 567, delete the following text on line 10:

"Moreover, the burden of proof in a Rule 15(a) motion rests with the movant to demonstrate the necessity of preserving a prospective witness's testimony with a deposition. United States v. Zuno-Arce, 44 F.3d 1420, 1424 (9th Cir. 1995)."

The word "Finally" shall be stricken from the next sentence, and the sentence shall read:

"In deciding whether to grant a Rule 15(a) motion, the district court must consider, among other factors, whether the deponent would be available at the proposed location for deposition and would be willing to testify. Id. at 1425."

At slip opinion page 1166, line 6 of the last full paragraph 203 F.3d at 567 insert between "discretion" and "in refusing":

in concluding that the government met its burden of proving "unavailability" and

At slip opinion pages 1166 and 1167 203 F.3d at 567, delete the following:

"Olafson did not meet her burden of demonstrating the necessity of taking the deposition, nor did she provide any explanation as to what evidence would be gained or clarified by obtaining further testimony from Gomez-Rivera. Finally,"

The next sentence shall begin with the word "Moreover,". The text shall read:

"Moreover, there was no indication that either Gomez-Rivera or Chavez-Martinez were willing to provide testimony at a deposition, or that they would cooperate in any way. The evidence in the record was to the contrary."

At slip opinion page 1167, line 10 203 F.3d at 567: place a period at the end of the word "limine," and delete the following:

"and her request for foreign depositions under Federal Rule of Criminal Procedure 15(a)."

At slip opinion 1167, first full paragraph, line 10 203 F.3d at 567, delete the following:

"The district court determined that a deposition was not necessary, and that the statement of Gomez-Rivera was reliable for the limited purpose for which it was to be used. This was not an abuse of discretion."

At slip opinion 1167, first full paragraph, line 10 203 F.3d at 567, the following shall be inserted:

"The district court determined that it was not reasonable to require the government to take the deposition of Gomez-Rivera, and that his statement was reliable for the limited purpose for which it was to be used. This was not an abuse of discretion."

With these amendments, the petition for rehearing, and the petition for rehearing en banc are DENIED.

OPINION

Heather Ladon Olafson ("Olafson") appeals her conviction for transporting illegal aliens in violation of 8 U.S.C. § 1324. Olafson entered a conditional guilty plea to the charge, which preserved her right to appeal the district court's denial of a motion to suppress, as well as its decision to admit hearsay statements from two material witnesses instead of ordering the government to take their depositions under Federal Rule of Criminal Procedure 15(a). This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

I

Olafson was arrested on August 4, 1998 in Jamul, California when Border Patrol Agent Johnson ("Agent Johnson") found six illegal aliens on the floor of a blue minivan Olafson was driving. The facts leading up to Olafson's arrest are as follows:

On the morning of August 4, 1998, Border Patrol Agent Lawrence Jay ("Agent Jay") was on "line-watch" duty near the United States/Mexico border when he was notified by a seismic device of a possible intrusion in the Deerhorn Valley area of East San Diego County. Agent Jay responded to the area and found fresh footprints on a main trail used by illegal aliens to enter the United States. He followed the footprints. From previous arrests, and from the fact that the particular trail led in only one direction, Agent Jay knew the footprints were headed toward 20855 Cinnamon Drive. Agent Jay also knew that Cinnamon Drive was an area where many illegal aliens stopped "to rest and drink water . . . and wait for their load vehicles."

As Agent Jay approached 20855 Cinnamon Drive, he heard people saying in Spanish, "hurry up, hurry up," and heard car doors slamming. He also saw that the trail of footprints he had been following shifted toward the driveway, and he believed "that some sort of loading was occurring." As he approached the top of a hill overlooking the area, Agent Jay saw a gold Chevrolet Blazer driving away from the 20855 Cinnamon Drive residence. He did not see any other vehicles leave. Agent Jay immediately notified Agent Johnson about what he had seen.

Agent Johnson was patrolling the area in a marked vehicle when he received Agent Jay's call regarding the activity on Cinnamon Drive. Agent Johnson knew the 20855 Cinnamon Drive location well, having personally tracked "ten or so" groups of aliens to the residence. Specifically, he participated in three alien smuggling apprehensions at the address and received several citizen tips about similar illegal activity going on at the home. In addition, Agent Johnson had seen the gold Blazer and a small, blue minivan parked on the property for months.

Agent Johnson set up surveillance on the gold Blazer at Four Corners, a nearby intersection. The Blazer arrived at the intersection after about ten minutes and, in front of it, separated by one other vehicle, was the blue minivan driven by Olafson. From his previous observations of the blue minivan parked at 20855 Cinnamon Drive, Agent Johnson connected it to the Blazer. He also testified that as the minivan drove along the road and negotiated a dip, it appeared heavily loaded. Believing that the minivan contained illegal aliens, he instructed another Border Patrol agent to stop and check the van. When the minivan was stopped, six illegal aliens were found lying on the floor. Olafson was arrested. Agent Johnson stopped the gold Blazer, which did not contain any illegal aliens, and arrested the driver, Celeste Arnold.

Of the six aliens seized from the minivan driven by Olafson, four were immediately returned to Mexico. The remaining two, Amadeo Chavez-Martinez and Cerilio Gomez-Rivera, were detained as material witnesses and both gave statements to the Border Patrol that they were Mexican citizens and had entered the United States illegally. Before Olafson's trial, however, Chavez-Martinez and Gomez-Rivera were inadvertently returned to Mexico by the United States Border Patrol.

Prior to trial, Olafson brought a motion to suppress all evidence from the vehicle stop on the ground that the Border Patrol agents lacked reasonable suspicion. Olafson also brought a motion in limine to exclude any use of the statements regarding Chavez-Martinez's and Gomez-Rivera's citizenship and alienage as inadmissible hearsay and requested that the court order the government to take their depositions because neither witness would be present at trial. The district court denied both motions as well as the request for depositions.

Following these adverse district court rulings, Olafson entered a conditional guilty plea to count three of the indictment for transporting illegal aliens within the United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (v)(II). The plea preserved Olafson's right to appeal the district court's denial of both her motion to suppress and her motion in limine, including the related request for depositions.

II

Olafson contends that the district court erred by denying her motion to suppress evidence seized as a result of the investigatory stop because the Border Patrol agents lacked reasonable suspicion to stop the blue minivan she was driving. This contention lacks merit.

The specific question of whether reasonable suspicion existed under given facts is a legal conclusion subject to de novo review. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). However, we "review findings of historical fact only for clear error and . . . give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id.

The Fourth Amendment prohibits an officer from stopping a vehicle without a reasonable or well-founded suspicion of criminal conduct at the time of the stop. United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir.1992), as amended, 997 F.2d 1306 (9th Cir.1993). Reasonable suspicion exists when an officer is aware of specific, articulable facts, which, together with objective and reasonable inferences, form a basis for suspecting that the particular person to be detained has committed or is about to commit a crime. United States v. Salinas, 940 F.2d 392, 394 (9th Cir.1991). The facts are to be interpreted in light of a trained officer's experience, and the totality of the circumstances must be taken into account. United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

The Supreme Court has set forth a nonexclusive list of factors upon which Border Patrol agents may rely in finding reasonable suspicion: "(1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including `obvious attempts to evade officers'; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and, (8) officer experience." United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir.1997) (quoting United States...