Unpublished Disposition, 912 F.2d 471 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 912 F.2d 471 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Jesus Manuel TORRES-SEPULVEDA, Defendant-Appellant.

No. 89-10195.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 16, 1990.Aug. 27, 1990.

Before TANG, NOONAN and RYMER, Circuit Judges.


MEMORANDUM* 

Jesus Manuel Torres-Sepulveda ("Torres-Sepulveda") appeals the district court's conviction and denial of his motions to suppress evidence. We affirm.

PROCEEDINGS BELOW

Torres-Sepulveda was indicted for importing marijuana into the United States in violation of 21 U.S.C. §§ 952(a), 960(a) (1), and 960(b) (2) (G), and for possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a) (1). He filed a motion to dismiss/suppress evidence and a motion to suppress statements made by him at the time of his arrest. Following an evidentiary hearing, the district court denied these motions without issuing any findings of fact or conclusions of law. Torres-Sepulveda proceeded to trial. A jury found him guilty as charged.

FACTS

On November 11, 1988, the U.S. Border Patrol office was alerted by electronic sensor activity that a person or vehicle had made an illegal entry into Nogales, Arizona from Mexico. Shortly thereafter, an unidentified woman called the Border Patrol office and reported seeing a tan or beige-colored van driving down the hill where the sensor is located. The same woman called ten minutes later to report seeing a second van, gray in color, on the same hill. This information was dispatched via radio to Border Patrol units in the field.

Border Patrol agents Sommer and Yerena testified that, after receiving the radio dispatch, they spotted on Highway I-19 a metallic blue van which, they believed, could possibly have been mistaken for gray. The agents, driving a marked Border Patrol vehicle, followed the van as it exited off Highway I-19 onto Mariposa Road. The van then turned into a Safeway parking lot and the driver parked it close to the entrance to the Safeway store. The driver, later identified as Torres-Sepulveda, exited the van and walked quickly toward the Safeway store. Agent Sommer testified that he pulled the patrol vehicle in behind the van just as Torres-Sepulveda was getting out of it. At no point did the agents activate a siren or red lights.

As Torres-Sepulveda walked toward the Safeway store, both agents exited the patrol vehicle. Agent Yerena started after Torres-Sepulveda. Agent Sommer went to the back of the van, peered into it through the rear window, and saw several large bundles wrapped in cellophane. Upon seeing the bundles, Agent Sommer said to agent Yerena, "1049," which was the code word for narcotics smuggling. Agent Yerena then ran after Torres-Sepulveda, who was just then entering the Safeway store. He caught up with Torres-Sepulveda inside the Safeway store and placed him under arrest. Agent Sommer meanwhile had opened the driver's side door of the van and immediately detected the odor of marijuana.

STANDARD OF REVIEW

Motions to suppress are generally reviewed de novo. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988). "Where no findings of fact were made or requested, we will uphold a trial court's denial of a motion to suppress if there is a reasonable view of the evidence that will sustain it." United States v. Harrington, 636 F.2d 1182, 1185 (9th Cir. 1980); see also United States v. Rabe, 848 F.2d 994, 997 (9th Cir. 1988). The evidence is viewed in the light most favorable to the government. Rabe, 848 F.2d at 997 (citing Harrington, 636 F.2d at 1185).

ANALYSIS

Torres-Sepulveda's main contention on appeal is that the agents did not have reasonable suspicion to stop his van, and thus they conducted an illegal search and seizure in violation of the Fourth Amendment. His argument is based on the premise that he was "seized" when the patrol vehicle pulled in behind his van in the Safeway parking lot. Because we reject Torres-Sepulveda's premise, we find it unnecessary to consider whether the agents then had reasonable suspicion to justify an investigatory stop.

The determination of whether or not the conduct of the agents amounted to a "seizure" is governed by the principles set out in Michigan v. Chesternut, 486 U.S. 567 (1988). There, the Supreme Court rejected the notion that "any 'investigatory pursuit' of a person undertaken by the police necessarily constitutes a seizure under the Fourth Amendment of the Constitution." Id. at 569. The test embraced in Chesternut "provides that the police can be said to have seized an individual 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Id. at 573 (quoting United States v. Mendenhall, 466 U.S. 544, 554 (1980)).

In the case before it, the Court concluded that driving a marked patrol car alongside a pedestrian who had begun to run when he saw the patrol car did not constitute a seizure because that police conduct "was not 'so intimidating' that respondent could reasonably have believed that he was not free to disregard the police presence and go about his business." Id. at 576. The Court found it significant that there was nothing in the record to indicate that "the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block the respondent's course or otherwise control the direction or speed of his movement." Id. at 575.

Applying Chesternut to the present case, we conclude that the agents' conduct in following the van and in pulling up behind it in the Safeway parking lot did not constitute a seizure. The agents did not activate a siren or red lights. Nor did they command Torres-Sepulveda to halt or display any weapons. Nor did they operate the patrol vehicle so as to block or control his freedom of movement--Torres-Sepulveda was already exiting the van by the time the patrol vehicle pulled in behind it. In sum, the agents' conduct involved here was not "so intimidating" that Torres-Sepulveda could reasonably conclude that he was not free to leave.

We further conclude that Torres-Sepulveda was not seized until he was placed under arrest by agent Yerena. By that time, agent Sommer had sighted the large, cellophane-wrapped bundles stacked inside the van. The government contends that the sighting of the bundles was permissible under the "plain view" doctrine and provided the agents with probable cause to arrest. We agree.

"Under the 'plain view' doctrine ... discovery of evidence does not constitute a 'search' within the meaning of the Fourth Amendment if an officer, standing in a place where he has a right to be, merely sees what is in plain view before him." United States v. Finnegan, 568 F.2d 637, 640 (9th Cir. 1977). Here, as the van was parked in a public place, agent Sommer had the right to stand next to it and "observe anything in plain view through the window." Id. Torres-Sepulveda argues that the applicability of the plain view doctrine is undercut in this case by the possibility that agent Sommer may have wiped some dust off the van's rear window before peering through it. We need not consider the merits of this argument, however, because the evidence, viewed in the light most favorable to the government, supports a finding that agent Sommer did not wipe any dust from the window (Agent Sommer testified that he may have wiped some dust from the window but did not recall doing so.).

The significance of the bundles was immediately apparent in light of agent Sommer's experience with the wide use of cellophane to package marijuana. We readily find that the sighting of the bundles provided the agents with probable cause to arrest Torres-Sepulveda for suspected drug trafficking. See United States v. Baron, 860 F.2d 911, 916 (9th Cir. 1988) ("Probable cause to support a warrantless arrest exists if, at the time of arrest, the police know sufficient facts to lead a prudent person to believe that the suspect has committed or is committing a crime"), cert. denied, 109 S. Ct. 1944 (1989). The sighting of the bundles also justifies agent Sommer's opening of the van door. See United States v. Bagley, 772 F.2d 482, 491 (9th Cir. 1985) (probable cause alone justifies a warrantless search of a vehicle parked in a public place), cert. denied, 475 U.S. 1023 (1986).

Based on the foregoing, the district court's judgment denying Torres-Sepulveda's motions to suppress is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

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