USA v. Olafson, 99-50216

• Decision Date: 06 January 2000
• Docket Number: No. 99-50216,99-50216
• Citation: 203 F.3d 560
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HEATHER LADON OLAFSON, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 560

203 F.3d 560 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HEATHER LADON OLAFSON, Defendant-Appellant.

No. 99-50216

U.S. Court of Appeals for the Ninth Circuit

Submitted January 6, 2000¹

Filed February 3, 2000

[Copyrighted Material Omitted]

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

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

Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-98-02464-MLH

Before: Cynthia Holcomb Hall, Stephen S. Trott, and William A. Fletcher, Circuit Judges.

OPINION

TROTT, Circuit Judge:

Heather Ladon Olafson ("Olafson") appeals her conviction for transporting illegal aliens in violation of 8 U.S.C. S 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. S 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 GomezRivera, 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. SS 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 investigation 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 (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 (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 v. Brignoni-Ponce, 422 U.S. 873, 885 (1975)).

Here, after a pre-trial evidentiary hearing, the district court denied Olafson's motion and concluded that, based upon the totality of the circumstances, the Border Patrol agents had ample reasonable suspicion to stop Olafson's minivan. In addition, the court noted that it was "quite a strong case." The district court was correct. The testimony from Agent Jay and Agent Johnson was sufficient, under the factors set out in Garcia-Barron, to conclude that the agents had reasonable suspicion to stop the minivan.

Specifically, the following facts were available to the district court in making its determination: (1) Agent Jay was assigned to line-watch duties in Jamul, California, an area in close proximity to the Mexican border; (2) after a sensor was set off during Agent Jay's watch, he found fresh footprints on a trail notoriously traveled by alien smugglers; (3) Agent Jay followed the footprints to 20855 Cinnamon Drive, an area previously involved in alien smuggling activity; (4) when Agent Jay arrived at the 20855 Cinnamon Drive, he heard someone say "hurry up, hurry up," in Spanish; (5) Agent Jay heard vehicle doors slamming and saw a gold Chevrolet Blazer drive away from the house on Cinnamon Drive; (6) Agent Johnson recognized the Chevrolet Blazer and the blue minivan as being connected with the house on 20855 Cinnamon Drive and had seen the blue minivan parked in the driveway on the property for extended periods of time over the previous three to four months; (7) based upon Agent Johnson's experience and special training as a Border Patrol Agent, he believed that the gold Blazer and blue minivan were traveling together in tandem; and finally, (8) Agent Johnson observed that the minivan appeared to be weighted down from the way it handled a dip in the road.

When analyzed as a whole, these specific and articulable facts provided ample support for the Border Patrol agents' suspicion that the minivan driven by Olafson contained illegal aliens. The agents' general experience with the Cinnamon Drive location and their specific knowledge of the two vehicles provided compelling evidence that there was criminal activity underway.

Olafson argues that the district court erred because it should not have relied upon certain evidence from the pretrial hearing in determining whether the agents...