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United States v. Villasenor

June 10, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
JOSE ALBERTO VILLASENOR, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding D.C. No. 3:08-CR-02205-H-1.

The opinion of the court was delivered by: Bybee, Circuit Judge

FOR PUBLICATION

Argued and Submitted November 4, 2009 -- Pasadena, California.

Before: Thomas G. Nelson, Jay S. Bybee, and Milan D. Smith, Jr., Circuit Judges.

OPINION

We must decide whether a search conducted after a border crossing qualifies as a reasonable search under the extended border search doctrine. The district court granted the defendant's motion to suppress, ruling that the unusual factual scenario presented here did not fit within the rubric of the extended border search doctrine. We review the question of reasonable suspicion de novo, Ornelas v. United States, 517 U.S. 690, 699 (1996), and review the district court's findings of fact for clear error, United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007). On appeal, the government argues that we have recognized similar extended border searches as reasonable. We agree with the government and reverse the judgment of the district court.

I.

On June 17, 2008, Immigration and Customs Enforcement ("ICE") Agent Enrique Torregrosa helped ICE Agent Chad Worgen interview a person caught smuggling drugs through the Calexico West Port of Entry in Southern California. During their conversation, the smuggler admitted to being involved in a larger drug trafficking organization. He told the agents that in the near future he was to meet up with a white Toyota Tacoma, which would serve as a "load vehicle," and a white PT Cruiser, which would serve as a "scout vehicle." He was supposed to meet the cars on the California side of the border at either PepBoys or McDonald's, at which point he would be led to a separate drop-off location. The smuggler did more than just talk: he showed the agents a picture of the PT Cruiser on his cell phone, from which Agent Worgen was able to decipher a license plate number, 6CHU366. Agent Worgen later entered the license plate number in the Treasury Enforcement Communications System ("TECS"), a computer-based information system designed to identify individuals crossing the border who are suspected of violating federal law.

At some point the following morning, eighty-two year old Jose Villasenor drove a white PT Cruiser up to the Calexico West Port of Entry. The car's license plate, 6CHU366 (matching the one in the photo on the smuggler's cell phone), triggered an automatic referral to secondary inspection, where a narcotics detecting dog ("NDD") sniffed the car but failed to alert.*fn1

At 9:10 that morning, Agent Torregrosa was driving southbound on Imperial Avenue hoping to park at the Port of Entry. When he saw there was no parking available, he made a U-turn, and began heading north on Imperial. While stopped at a red light at Imperial and Second Avenue, Torregrosa suddenly realized that he had pulled up right behind a white PT Cruiser. Although he had not seen the car cross the border, he quickly deduced that it must have come from the Port of Entry.*fn2

After calling and confirming that Agent Worgen had entered the car's license plate number in TECS, Torregrosa decided to follow Villasenor.

Villasenor stopped at the next block at a FillCo gas station. He got out, talking on his cell phone, and walked to the corner of the gas station while looking south toward the Port of Entry. After two or three minutes on the corner, Villasenor turned around and went into the gas station's restroom. Shortly thereafter, he got in his car and left the gas station, never having filled up. All together, he was at the FillCo for approximately ten minutes and was talking on his cell phone the entire time.

Next, Villasenor went to an AM/PM gas station, about two miles from the FillCo. He got out, still on his cell phone, and walked around the Cruiser. Less than five minutes later, again without filling up, he got in his car and left. Villasenor then went to the DMV, about thirty minutes away. Villasenor exited his car and walked into the DMV.*fn3 He returned to his car two or three minutes later.

While surveilling Villasenor at the DMV, Torregrosa asked the local police department-the El Centro Police Department -to send a marked police car to conduct a traffic stop of Villasenor's car.*fn4 Sergeant John Seaman responded to the call, tailing Villasenor's car just as it was leaving the DMV. Before long, Seaman noticed a ten-inch rosary hanging from Villasenor's rearview mirror. Relying on California Vehicle Code ยง 26708(a)(2), which prohibits "driv[ing] any motor vehicle with any object ...


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