Unpublished Disposition, 931 F.2d 898 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 931 F.2d 898 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Adan LOPEZ-NAVALLES, Defendant-Appellant.

No. 90-10094.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 1991.Decided May 1, 1991.

Before HUG, ALARCON and WIGGINS, Circuit Judges.


MEMORANDUM* 

Adan Lopez-Navalles appeals his conviction of possession with intent to distribute marijuana. He argues that the district court erred in refusing to dismiss an earlier indictment with prejudice, in refusing to suppress evidence discovered in a Terry stop, and in denying his objection to hearsay admitted during the trial. The district court had jurisdiction to try the federal crime charged, 18 U.S.C. § 3231, and this court has jurisdiction of Mr. Lopez-Navalles' timely appeal, 28 U.S.C. § 1291. We affirm the district court's holdings.

BACKGROUND

At approximately 8:50 p.m. on June 1, 1988, a sensor located less than a mile from the international border in Arizona was activated. About twenty minutes later, a second sensor about seven miles north of the first on a road that runs through Parker Canyon to Sonoita, Arizona was also activated. These sensors are placed to aid border patrol officers in detecting illegal border crossings. They are located on sparsely-populated, publicly-owned land; there are camping facilities at Parker Canyon Lake.

The Border Patrol Office alerted border patrol agents to the sensor activity, and the agents then positioned themselves thirteen miles north of Parker Canyon Lake to observe traffic coming from the road on which the sensors are located. The agents estimated their position to be about twenty-five to thirty minutes by car from the second sensor. Therefore, any vehicle that activated the second sensor would pass the agents around 9:35 p.m. The agents stopped the first vehicle that passed, a pick-up truck, because it was travelling faster than normal and arrived close to the appropriate time. Finding nothing suspicious, they allowed the truck to leave. The second vehicle to pass, a small pick-up truck, was not stopped because the agents could see that there was nothing in the truck bed.

The third vehicle, a pick-up truck driven by Mr. Lopez-Navalles, arrived a few minutes past 9:35 p.m. The license plates indicated that the truck was not locally registered. Also, the truck had two spare tires visible which one of the agents believed to be unusual. In other cases handled by his station, drugs had been concealed in spare tires. For these reasons, the agents stopped Mr. Lopez-Navalles. As they approached the truck, they noticed a tarp covering the bed and smelled marijuana. They arrested the appellant and impounded 429 pounds of marijuana found in the truck bed.

Appellant was charged with possession with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (vii). After the denial of a motion to dismiss the indictment and an unsuccessful interlocutory appeal, the case was not reset for trial. The district court eventually dismissed it without prejudice for Speedy Trial Act violations.

In September, 1989, Mr. Lopez-Navalles was reindicted on the same charge. He was convicted following a jury trial and sentenced to sixty months in prison. He appeals his conviction.

DISCUSSION

I. DISMISSAL OF THE EARLIER INDICTMENT WITHOUT PREJUDICE

This court reviews a district court decision to dismiss an indictment for Speedy Trial Act violations with or without prejudice for abuse of discretion. United States v. White, 864 F.2d 660, 660 (9th Cir. 1988). Congress clearly set out the factors to be considered when deciding to dismiss with or without prejudice:

[T]he court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.

18 U.S.C. § 3162(a) (2). The Supreme Court has said that "the administration of the Speedy Trial Act and the necessity for thorough appellate review require that a district court carefully express its decision ... in terms of the guidelines specified by Congress." United States v. Taylor, 487 U.S. 326, 343 (1988); see also White, 864 F.2d at 661 (remanding dismissal with prejudice for a more precise articulation of the district court's reasoning).

The district court considered the required factors and did not abuse its discretion in dismissing the indictment without prejudice. Possession with intent to distribute 429 pounds of marijuana is a serious offense with a minimum penalty of five years. 21 U.S.C. § 841(b) (1) (B) (vii). When the defendant moved to dismiss, only six days had passed beyond the seventy day deadline in the Speedy Trial Act. 18 U.S.C. § 3161(c) (1). Some of the delay was caused when the mandate was sent to a judge no longer assigned to the case. Also, although not included in the calculation of the elapsed time, the defendant had himself delayed the case over eight months with an interlocutory appeal that this court denied. Finally, the defendant did not present any evidence of prejudice by the delay in the preparation of his case.

We hold that the trial court did not abuse its discretion and affirm the dismissal of the earlier indictment without prejudice.

Whether the border patrol agents had reasonable suspicion to justify an investigatory stop of the truck driven by Mr. Lopez-Navalles is a question for de novo review. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989). This court has said before that

[a]n officer may make an investigatory stop if he is aware of specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that the particular person detained is engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 416-18 (1981).

Hernandez-Alvarado, 891 F.2d at 1416. Trained officers can make inferences based on their experience that support a stop, as long as they are reasoned inferences grounded in objective facts. Id. However, systematic or random stops on the chance that something illegal will be discovered are unconstitutional. United States v. Larios-Montes, 500 F.2d 941, 943 (9th Cir. 1974), cert. denied, 422 U.S. 1057 (1975).

In this case, the officers stopped Mr. Lopez-Navalles' vehicle for three reasons. One, something had activated two border sensors not long before the stop. Two, the pick-up truck had two spare tires capable of concealing contraband, and three, non-local traffic (the license plate showed that the truck was not registered locally) was not common in that sparsely-populated area at that time of night.

This court has recognized in earlier cases that electronic sensor devices are legitimate means for border patrol agents to extend their surveillance capability in remote border areas. United States v. Laird, 511 F.2d 1039, 1039 (9th Cir. 1975); United States v. Mora-Chavez, 496 F.2d 1181, 1182 (9th Cir.), cert. denied, 419 U.S. 878 (1974). The triggering of these devices alerts the agents that something weighing more than forty pounds has crossed the border. Although a large animal can set off the devices, the possibility that it was a car, a person, or a group of people crossing illegally is great enough to justify a stop of a vehicle in a remote area within a reasonable proximation of time and distance to the activated sensor. Laird, 511 F.2d at 1039; Mora-Chavez, 496 F.2d at 1182. In this case the two sensors were seven miles apart and had been activated within twenty minutes of each other, suggesting that they were activated by a travelling vehicle, not an animal or person on foot. Further, the agents carefully calculated the vehicle travelling time from the two sensors to the point where the agents positioned themselves to observe any traffic. They only considered stopping vehicles that arrived within the appropriate time frame.

Finally, because the area is not so remote that any traffic is unusual--indeed, three vehicles passed the positioned officers within several minutes--the officers were careful to stop only those vehicles that had some additional characteristics to suggest possible illegal activity. In the case of Mr. Lopez-Navalles' truck, these characteristics included a non-local license plate and two large spare tires of the kind that, in one of the agent's experience, had been used to conceal contraband.

All of these factors, taken together, justify the stop of Mr. Lopez-Navalles' vehicle to investigate possible illegal activity. See United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975) (factors that contribute to reasonable suspicion include proximity to border, usual traffic patterns, and aspects of the vehicle itself).

The appellant argues that the apprehending government agent's testimony that the Border Patrol Office radioed him to say that the sensors had been activated is inadmissible hearsay.1  It is not hearsay because it was not offered for the truth of the matter asserted in the statement--that the sensors had, indeed, been activated. The testimony was offered simply to show what was in the agent's mind when he stopped the vehicle; it was offered to show that because he believed the sensors had been activated in a remote area, together with other factors, he had reasonable suspicion to stop Mr. Lopez-Navalles' truck. United States v. Lopez-Navalles, No. CR-89-290-TUC-WDB, Transcript of Proceedings Vol. II at 16-27 (D. Ariz. November 13, 1989). The testimony is admissible.

CONCLUSION

The dismissal of the earlier indictment without prejudice, the denial of the motion to suppress evidence, and the admission of evidence that the agent believed the sensors had been activated are 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 9th Cir.R. 36-3

 1

Appellant also argues that evidence of sensor activity does not meet the Frye test of reliability. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The appellant offers no support for an argument that the sensors are scientifically unreliable. In the face of routine judicial acceptance of evidence of sensor activity in federal criminal trials, e.g. United States v. Pollack, 895 F.2d 686, 687 (10th Cir.), cert. denied, 111 S. Ct. 520 (1990); United States v. Ramirez-Ramirez, 875 F.2d 772, 773 (9th Cir. 1989); United States v. Galvan-Garcia, 872 F.2d 638, 639 (5th Cir.), cert. denied, 110 S. Ct. 164 (1989), we reject the appellant's assertion