USA v. Garcia

• Decision Date: 07 March 2000
• Docket Number: No. 99-10001,99-10001
• Citation: 205 F.3d 1182
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESUS GABRIEL GARCIA, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1182

205 F.3d 1182 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESUS GABRIEL GARCIA, Defendant-Appellant.

No. 99-10001

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 6, 1999

Filed March 7, 2000

[Copyrighted Material Omitted] COUNSEL: John C. Lambrose, Assistant Federal Public Defender, Las Vegas, Nevada, for defendant-appellant.

Daniel Bogden, Assistant United States Attorney, Reno, Nevada, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Warner Hagen, District Judge, Presiding. D.C. No. CR-97-00115-DWH

Before: Mary M. Schroeder, Robert R. Beezer and Susan P. Graber, Circuit Judges.

Opinion by Judge Beezer

BEEZER, Circuit Judge:

Jesus Gabriel Garcia appeals the district court's denial of his motion to suppress evidence seized from a highway traffic stop and post-arrest statements made to police. Following the denial of his motion, Garcia entered a conditional plea of guilty to charges that he distributed, and conspired to possess with intent to distribute, controlled substances. We have jurisdiction pursuant to 28 U.S.C. S 1291, and we affirm.

I

On November 20, 1997, Nevada Highway Patrol Trooper Chris Greb observed a white Chevy Barretta with out-of-state plates that appeared to have an inoperative right tail light. The vehicle was traveling within the speed limit on a four-lane divided highway. Greb followed the vehicle and determined that the tail light was operative but dim. Greb continued to follow the vehicle and saw it "swerving slightly within its lane, not breaking the lane lines." According to Greb, this swerving indicated "a pattern of an intoxicated driver or tired driver."

Farther down the road, Greb saw the vehicle's left side tires cross into the number one lane and then cross back into the number two lane. A few hundred yards later, the driver activated the left turn signal and moved into the number one lane to pass a semi-truck that was in lane number two. As the vehicle passed the truck, Greb saw it swerve "over the center yellow line into the paved shoulder throwing dirt and debris up." The vehicle then "slightly jerked back into the number one lane" and continued to pass the truck.

Greb decided to pull the vehicle over based on its violation of Nevada Revised Statute 484.305¹ and his observation of "an erratic traffic pattern" that was consistent with an intoxicated or tired driver. After stopping the vehicle, Greb approached the driver and asked to see his license. The driver produced a Wyoming driver's license identifying him as Jacob Jones. When asked whether he owned the vehicle, Jones stated that it belonged to his girlfriend's mother. Greb then asked Jones to produce the registration documents, to get out, and to move to the rear of the vehicle in order to avoid the nearby traffic. Jones complied, handing Greb a registration form that listed the owner of the vehicle as Ed Clingan of Upton, Wyoming.

After explaining the nature of the traffic violation to Jones, Greb asked him "where he was coming and going from." Jones responded that he and his friend Jessie were traveling from Petaluma, California, where Jones had been to visit his mother, to Laramie, Wyoming, where they were going to see a University of Wyoming football game. Greb then walked to the front of the vehicle to compare the vehicle identification number ("VIN") on the registration with the VIN plate on the left front dashboard. While at the front of the vehicle, Greb asked the passenger the same questions that he had asked Jones. The passenger identified himself as Jessie Garcia and said that he and Jones were coming from California and were headed to Wyoming to attend a technical school.

Upon matching the VIN numbers, Greb returned to his vehicle and radioed the Nevada Highway Patrol ("NHP") to run a records check on Jones' driver's license and a warrants check on him. While waiting for NHP to respond, Greb followed up with Jones regarding the conflicting stories. Jones said that he and Garcia left Petaluma and traveled as far as Reno, Nevada, before he realized that he had forgotten a box in Petaluma. Jones stated that he doubled back to Petaluma, got the box, started the trip again, and stopped in Auburn, California for the night.

Faced with what he felt were now three different stories, Greb again approached Garcia, who remained in the passenger seat, and asked him to detail the trip. Garcia told Greb that Jones had picked him up in Stockton, California, and that they had spent the night in Auburn. Garcia denied having gone back to Petaluma or having forgotten anything for the trip. Greb then returned to his patrol car to monitor his radio.

At that point, Storey County Deputy Billy Leary observed the traffic stop and pulled over to assist Greb, although not requested to do so. Jones, who was still standing at the rear of the vehicle, asked if he could retrieve a jacket from the vehicle because he was cold. As Jones returned from the vehicle, the NHP notified Greb via radio that there was an active misdemeanor warrant out for Jones' arrest. Greb advised Jones of the warrant and placed him under arrest. Greb began to search Jones, but before he could finish, Leary advised him that he could see Garcia moving around in the vehicle. Leary asked Jones if there were any weapons in the vehicle. Jones said that there was a .9 millimeter handgun in the vehicle. Leary watched Jones while Greb and newly-arrived NHP Trooper Michael Girulani, who had been called as a backup, went to retrieve the handgun.

Greb and Girulani approached the passenger side of the vehicle and asked Garcia to step out. Garcia complained of having a runny nose and asked for a Kleenex box from the front passenger seat. Greb checked the tissue box for weapons and, finding none, handed the box to Garcia. Girulani retrieved the handgun from a red duffle bag in the back of the vehicle.

Once the handgun was located, Greb returned to Jones and resumed his search. Greb discovered a glass pipe in Jones' front pants pocket, which appeared to contain marijuana residue. Greb then asked Jones if there were any narcotics in the vehicle, to which Jones replied, "Not that I know of." Greb then put Jones in his patrol car and went to assist Leary, who had retrieved a jacket for Garcia at Garcia's request. Greb checked the jacket for weapons and discovered a small bindle of what he believed to be methamphetamine, plus a pack of burnt marijuana cigarettes. Jones stated that the jacket was his and acknowledged the presence of the narcotics inside.

Garcia was then asked to follow Leary back to the patrol cars. Garcia asked, "Can I take the Kleenex box, too?" Girulani picked up the Kleenex box and noticed that "it had a lot more weight to it than a normal Kleenex box would, " in fact, "two to three times more." He also saw that a small portion of plastic was sticking out of the box, protruding between a couple of pieces of Kleenex. Girulani looked in the box and saw a plastic baggie. He handed the box to Greb, who noticed that "the tissues were pointed up as if something was underneath the tissues" and that "the box was a little bit heavier than it was before." Inside the box, Greb found a bindle of methamphetamine and some marijuana. Garcia was arrested for possession of controlled substances and placed in Leary's patrol car.

Next, Greb had his certified drug-detection dog "Bear" walk around the vehicle. Bear alerted to the odor of narcotics in the trunk and the glove box. Greb placed Bear back in his patrol car and began a hand search of the vehicle. Because the trunk was packed full of items, including a large speaker box and some mechanical tools, Greb and Girulani went right to the glove box. After obtaining the key from Garcia, Greb opened the glove box and found a loaded clip for the.9 millimeter handgun. Greb also noticed that the glove box screws "looked as if they had been off." Greb removed the screws and looked up underneath the glove box. There, he saw a large bundle wrapped in gray duct tape that smelled strongly of marijuana. At that point, Greb called for a tow truck to transport the vehicle back to NHP headquarters, where he believed that a more safe and thorough search could be conducted.

Garcia, Jones, and the vehicle were transported to NHP headquarters in Reno. Greb and Girulani continued the hand search of the vehicle. The troopers unloaded the trunk of the vehicle and found a Fix-a-Flat can in the area where Bear had alerted. Greb unscrewed the can's false bottom and found several wrapped bundles that appeared to contain methamphetamine.

Both Jones and Garcia were advised of their Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966). Both waived their rights in writing and agreed to make oral and written statements inculpating themselves and each other. The government filed a five-count indictment and later a six-count superseding indictment. Jones and Garcia jointly moved to suppress the physical evidence and their statements.

After an evidentiary hearing, the district court denied the motion to suppress. Garcia then entered a conditional plea of guilty on count one,...