Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. JCF20339, Jeffrey Bruce Jones, Judge.
BENKE, J.
Paul Cocio Ramos entered a plea of nolo contendere to transporting marijuana. He was granted three years' probation. Ramos appeals, arguing the trial court erred in denying his motion to suppress evidence made pursuant to Penal Code section 1538.5.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
A. Motion to Suppress
Appellant moved to suppress marijuana seized during a search of his person and his truck conducted by agents of the United States Border Patrol. He argued his contact with the agents was not a consensual one and he was detained at all times. He argued the agents had no reasonable suspicion to believe he was illegally in the United States and, thus, no cause to detain him for questioning. Even if there was reasonable cause to detain him, the reasonability of his detention ended when he told agents he was an American citizen. Any consent by appellant to the search of his vehicle was of no legal consequence because granted while he was unlawfully detained.
The prosecutor responded the agent's initial contact with appellant and his inquiry concerning appellant's citizenship was not a detention. Neither was there a detention when the agent asked permission to search appellant's truck and the search was consensual and, therefore, lawful.
B. Facts
The section 1538.5 hearing established the following: on July 11, 2007, at approximately 10:35 p.m. Supervising Border Patrol Agent Officer Terrence Glover, patrolling alone, stopped in his marked border patrol vehicle at a gas station in Ocotillo. Ocotillo is in Imperial County, three or four miles from the Mexican border. Glover was aware alien and drug smuggling occurred in the Ocotillo area. As Glover sat in his vehicle, he saw appellant leave the station's mini-mart and walk towards a truck bearing California license plates parked at the station. When appellant saw Glover, he turned around and walked back towards the mini-mart.
Glover approached appellant, asked him to stop and asked him his citizenship. Appellant stated he was an American citizen. Appellant identified himself as Paul Romero. Glover asked if the truck was his. Appellant replied it was his uncle's. Appellant told Glover his uncle's last name was Hernandez. Glover ran the truck's license number and discovered it was registered to a person with the last name of Vasquez. When Glover asked appellant to explain this discrepancy, he was unable to do so.
When Glover examined appellant's driver's license, the name listed was Paul Ramos. The record does not explain how Glover gained possession of appellant's driver's license. Glover ran a records check on appellant and discovered he had convictions for petty theft and narcotics violations. Glover asked appellant if he was on probation. Appellant stated he was. Glover asked if a condition of appellant's probation was a waiver of his Fourth Amendment rights. Appellant stated, "yes." As other agents arrived, Glover asked for and appellant granted permission to search the truck.
While the truck was being searched by another agent, appellant asked Glover if he could use the restroom. Glover stated he could, but for the safety of the agents he would first be patted down. As a result of the patdown, the agents found a wallet containing approximately $400, a pack of cigarettes and a lighter. When the pack of cigarettes was examined, two of the cigarettes appeared unusual and smelled like marijuana. Appellant was placed under arrest for possession of marijuana. The agents found nothing during their initial search of the truck. After appellant's arrest, the agents called for a K-9 unit. Using the dog, agents found brick-sized bundles of marijuana in the truck's spare tire.
C. Ruling
The trial court concluded appellant was not detained by Glover's inquiry concerning his citizenship. The court concluded that even if appellant did not feel free to leave when asked his citizenship, he would have felt free to leave when he told the agent he was an American citizen. Thus, at the point Glover began to inquire about the truck, appellant was not being detained. When Glover inquired about the truck, suspicion arose the truck might be stolen and the agent could attempt to resolve the matter. In addition, Glover could conclude appellant violated federal law by providing false information to a federal agent. The court found no evidence the officers lawfully seized the cigarette package from appellant during the patdown search. The trial court concluded that omission was irrelevant because the agents had probable cause to arrest appellant for providing false information and, thus, could search him subsequent to that arrest. Once the marijuana cigarettes were found, the further search of appellant's truck and the discovery of marijuana in the spare tire was justified.
DISCUSSION
Appellant argues that when Agent Glover asked him to stop, state his citizenship and inquired concerning his vehicle, he was being detained. He contends the detention was unlawful because there was no cause to believe he was in violation of any immigration law. He asserts border patrol agents have no authority to generally enforce the law. He argues given this initial illegality the later discovery of drugs on appellant's person and in his truck was unlawful, and the trial court erred in denying his motion to suppress.
A. Law
Many encounters between law enforcement officers and other persons are consensual, raise no constitutional issues and need not be justified. Such encounters are consensual when a reasonable person would feel free to disregard the officer and go about their business. An encounter is not consensual when an officer by means of physical force or show of authority in some manner restrains the individual's liberty. (Florida v. Bostick (1991) 501 U.S. 429, 434 [111 S.Ct. 2382].)
Whether any given encounter is consensual or an assertion of authority is fact specific. The mere asking of questions by an officer, requests for identification or a request the person submit to a search do not alone render the encounter nonconsensual. (People v. Franklin (1987) 192 Cal.App.3d 935, 941.) Some factors that are important in characterizing the encounter are the number of officers present, the display of a weapon, physical touching of the person by the officer, or the use of language or tone of voice that would communicate the person is not free to leave. (United States v. Mendenhall (1980) 446 U.S. 544, 554-555 [100 S.Ct. 1870].)
A detention is reasonable when the officer can point to specific articulable facts that in light of the totality of the circumstances provides some objective manifestation the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.)
After passage of the Homeland Security Act of 2002, the border patrol along with other federal agencies concerned with policing U.S. borders were brought within the Department of Homeland Security and were given wide-ranging law enforcement responsibilities, including the interdiction of illegal drug trafficking. (6 U.S.C. §§ 111(b); 202, 203, 251; see Tabbaa v. Chertoff (2007) 509 F.3d 89, 92-93.) Border patrol agents have always had the power to arrest for offense against the laws of the United States. (8 U.S.C. § 1357(a)(5).)
On an appeal from a motion to suppress evidence we defer to the court's factual findings, where supported by substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 924.) Relying on these facts we independently decide whether the challenged search and seizure was lawful. (People v. Hughes (2002) 27 Cal.4th 287, 327.)
B. Analysis
The initial encounter between Agent Glover and appellant was not a detention. The encounter occurred during the evening in a public location. Glover was alone, did not display a weapon or attempt to touch or physically restrain appellant. Given that Glover is a border patrol agent and was near the border, he, not unexpectedly, asked appellant what his citizenship was. When appellant responded he was an American, Glover asked if the truck was his. Appellant stated, "no," that it belonged to his uncle. Glover then ran the truck's license number. There is no indication this part of Glover's contact with appellant was lengthy or in any way threatening or oppressive. A reasonable person in appellant's position would not conclude he was being detained.
The nature of the encounter, however, changed when appellant gave Glover false information concerning who owned the truck he was driving. Appellant had turned away from him. When asked about the ownership of the truck, appellant gave erroneous information. It was reasonable for the agent to be concerned about why appellant might be attempting to hide and why he gave the agent false information about the truck. At that point, Glover had reasonable cause to believe appellant might be involved in criminal activity and could detain him to resolve the matter.
Contrary to the assertion of appellant, Agent Glover's authority and responsibility was not solely concerned with immigration. Glover had no idea why appellant was trying to avoid him and give him false information. As Glover continued to investigate, he discovered appellant gave him a false name, was convicted of narcotics offenses, was on probation and had a search condition. Given Ocotillo's proximity to the border and Glover's knowledge of alien and drug smuggling in the area, it was possible appellant was involved in illegal activity involving the border. There were numerous other possibilities. The point is that it was not only reasonable but incumbent on Glover to investigate those possibilities and determine what appellant had to hide.
Appellant did not argue below and does not argue on appeal, assuming the legality of his detention, there was anything unconstitutional or improper about the search of the truck or the discovery of marijuana. The trial court properly denied appellant's motion to suppress.
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.