Unpublished Disposition, 859 F.2d 924 (9th Cir. 1987)

MEMORANDUM^* 

Agustin Valdez-Alarcon ("Valdez") appeals his conviction, following a conditional guilty plea, for possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (C). The district court denied Valdez's motion to suppress admission of the marijuana and incriminating statements. Valdez claims that the car he was driving was illegally stopped, that no probable cause existed to search the car's trunk, and that statements obtained from him violated Miranda. We have jurisdiction under 18 U.S.C. § 1291 and we affirm.

FACTS

On August 20, 1987, Border Patrol Agent Hector R. Garcia was conducting a surveillance of an abandoned house on Short Street, in Nogales, Arizona, a place well known for smuggling activities. Over the past 3 1/2 years, Agent Garcia had made numerous narcotics and illegal alien arrests in the vicinity of this house. He noticed several men leaving the house who acted as lookouts or "spotters" in the area. He recognized none of the men as residents of the area. Agent Garcia then noticed a brown Chevrolet Citation drive up and park near the house. One of the spotters signaled, and the car backed up to the house. The spotter then looked around, and waved for the car to proceed down Short Street. The car then drove north on Short Street and turned west at the corner of Short and "E" Streets. Agent Garcia continued to watch the activity and radioed a description of what he saw to other units which were standing by.

Agent James Miller heard the radio communications from Agent Garcia, and proceeded in his car to intercept the Chevrolet Citation. Agent Miller pulled the Citation over and asked the driver for identification. The driver, Valdez, produced an alien registration card. Agent Miller then requested that Valdez open the trunk of the car. Valdez placed the key in the trunk lock, then grabbed for his identification card and fled on foot, leaving the key in the lock. Agent Miller was unable to catch Valdez after a brief chase. He returned to the Citation, opened the trunk, and found the marijuana.

Valdez was caught by Officer Auriela Padilla, a City of Nogales police officer, shortly after he fled from Agent Miller. Officer Padilla advised Valdez of his constitutional rights in Spanish. Valdez indicated that he understood his rights. Officer Padilla then asked him why he was running and Valdez responded, "I already got caught." At this point, Valdez was turned over to the Border Patrol.

At the Border Patrol office, Agent Miller advised Valdez of his constitutional rights in Spanish. Valdez indicated that he understood his rights, but he was not questioned at that time. In Agent Miller's presence, Valdez executed a form I-214, an advice of rights form which included a paragraph entitled "waiver." This paragraph, in Spanish, states: "I am willing to make comments and answer questions. For the moment I do not require an attorney. I understand what I am doing. No one has made any promises or used any coercion in any way." Valdez signed his name under this portion of the form.

Sometime later, at the Border Patrol station, Special Agent Ernest Lowe of the Drug Enforcement Administration questioned Valdez. Agent Lowe introduced himself, and again advised Valdez of his rights in Spanish. Valdez indicated that he understood his rights and that he would tell the agent what had happened. When Agent Lowe asked who had sent him to pick up the load car, Valdez responded, "Chino Cinco." In response to additional questions by the agent, Valdez invoked his right to an attorney and the questioning ceased.

Valdez now appeals the district court's denial of his motion to suppress both the marijuana, and the two incriminating statements: "I already got caught," and "Chino Cinco."

ANALYSIS

We review the motion to suppress de novo. United States v. Joseph, 829 F.2d 724, 726 (9th Cir. 1987). The factual findings upon which the district court based its conclusions are reviewed under a clearly erroneous standard. Id., citing United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir. 1984) (en banc), cert. denied, 469 U.S. 824 (1984).

Valdez argues initially that there was insufficient articulable suspicion of criminal activity to justify the stop of the car he was driving. The government argues that Agent Garcia's observations provided a sound factual basis for the conclusion that criminal activity was afoot, and that the car driven by Valdez was involved in it. We agree with the government.

"An officer may make a brief investigatory stop of a moving vehicle if, under the totality of the circumstances, the officer is aware of articulable facts leading to a reasonable or founded suspicion that the person stopped is engaged in criminal activity." United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir. 1985).

Agent Garcia, an officer with 3 1/2 years law enforcement experience in the Short Street area of Nogales, Arizona, observed activity consistent with drug smuggling: the presence of a number of unfamiliar men at the burned-out and abandoned house which had been the site of a substantial number of drug and alien smuggling arrests, the placement of lookouts who acted as spotters up and down Short Street, and the activity of these spotters as they guided the Chevrolet and another car up to the house, one at a time. The totality of these circumstances, as viewed by Agent Garcia, an experienced Border Patrol officer familiar with the area, sufficiently established a founded suspicion that the car driven by Valdez was being used to transport contraband. United States v. Bates, 533 F.2d 466, 469 (9th Cir. 1976). The stop of the car was justified.

Law enforcement officers must have probable cause to believe that a vehicle contains seizable contraband before conducting a warrantless search. Carroll v. United States, 267 U.S. 132, 162 (1925). Valdez argues that Agent Miller had no probable cause to request him to open the car's trunk, or to search the car. The government argues that Valdez consented to the search, and that there was probable cause for the search. We do not reach the issue of consent because we find that Agent Miller had probable cause to search the trunk of the car.

In order to conduct a vehicle search without a warrant, officers must possess "facts and circumstances within their knowledge and of which they have reasonably trustworthy information ... sufficient in themselves to warrant a man of reasonable caution in the belief that [contraband] was being transported in the automobile which they stopped and searched." Carroll v. United States, 267 U.S. at 162. See also United States v. Patterson, 492 F.2d 995, 997 (9th Cir. 1974); United States v. Corral-Villavicencio, 753 F.2d 785, 789-90 (9th Cir. 1985).

The events which occurred subsequent to the stop of the car, coupled with the circumstances we have related which justified the stop, were sufficient to warrant a reasonable belief that the car driven by Valdez contained contraband and established probable cause for its search. United States v. Corral-Villavicencio, 753 F.2d at 789. After Valdez inserted his key into the trunk lock, he grabbed for his identification card and fled on foot. At that point, Agent Miller possessed "facts and circumstances ... sufficient in themselves to warrant a man of reasonable caution in a belief" that contraband was being transported in the car.

Valdez argues that, even assuming probable cause was established to search the vehicle when he fled, the officer had no right to ask him to open the trunk in the first place. This argument finds no support in the law. Agent Miller only requested access to the trunk. The law does not require probable cause to permit a law enforcement officer to ask for consent to search. The Supreme Court has noted that " [i]n situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by valid consent would be the only means of obtaining important and reliable evidence." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (footnote omitted).

In United States v. Alderdyce, this court thoroughly reviewed the law on waiver of Miranda rights.

Whether a waiver of rights is voluntary, knowing, and intelligent depends on the totality of circumstances, including the background, experience, and conduct of the defendant. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 1757-58, 60 L. Ed. 2d 286 (1979) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938). A signed waiver form is one factor to be considered. United States v. Binder, 769 F.2d 595, 599 (9th Cir. 1985); see also United States v. Nick, 604 F.2d 1199, 1201 (9th Cir. 1979). The prosecution has the burden of showing a valid waiver. There is a presumption against a waiver. Butler, 441 U.S. at 373, 99 S. Ct. at 1757.

United States v. Alderdyce, 787 F.2d at 1368. See also United States v. Binder, 769 F.2d 595, 599 (9th Cir. 1985).

The totality of circumstances in this case rebuts the presumption against a waiver. Valdez is a registered alien whose native language is Spanish. He was informed of his rights, in Spanish, on three separate occasions verbally, and once in writing. Each time, Valdez indicated he understood his rights. Valdez also signed a waiver form, printed in Spanish. There is no evidence of deceit, or improper interrogation practiced by any of the questioning agents. The district court's finding that Valdez knowingly and voluntarily waived his Miranda rights is not clearly erroneous.

AFFIRMED.