Opinion
D051597
4-16-2008
THE PEOPLE, Plaintiff and Respondent, v. RUBEN LOPEZ REYES, Defendant and Appellant.
NOT TO BE PUBLISHED
Following denial of his motion to suppress evidence (Pen. Code, § 1538.5), Ruben Lopes Reyes entered a negotiated no contest plea pursuant to People v. West (1970) 3 Cal.3d 595 to transporting marijuana (Health & Saf. Code, § 11360, subd. (a)). The court sentenced him to the three-year middle prison term. Reyes appeals the denial of his suppression motion, contending he was illegally detained. We reverse.
BACKGROUND
On March 5, 2007, at 3:15 p.m., United States Border Patrol agent James Bondanza was on Ogilby Road, south of the Interstate 8 freeway, in his marked vehicle. An unidentified driver approached him and related the following: A U-Haul truck was moving east on Interstate 8, and stopped on the side of the road near Brocks Research Road. Two individuals came from behind a bush and ran toward the U-Haul. The witness could not see whether they entered the U-Haul. Through his rearview mirror, the witness saw the U-Haul proceed east on Interstate 8.
It is about seven to 10 miles from Ogilby Road to Brocks Research Road.
Bondanza had never before received information from the witness and had no way to verify whether the tip was credible. Nevertheless, he believed the witness. Bondanza drove west on Interstate 8, looking for the U-Haul. After driving about two to three miles, he saw two U-Hauls proceeding east on Interstate 8, approximately one mile apart. Bondanza made a U-turn and followed the closest U-Haul, which was traveling at about 80 miles per hour. Bondanza chose this U-Haul to follow because it was the closer of the two.
Bondanza pulled in behind the U-Haul and, from a distance of a couple of car lengths, looked in its large drivers side mirror. The driver appeared nervous. He continuously looked in his rearview mirror at Bondanza, then back at the road, alternating rapidly back and forth. He slowed to about 45 miles per hour.
Bondanza stayed behind the U-Haul for one to two minutes. He then pulled up on the left side of the U-Haul and looked into the trucks cab at the driver for about one minute. The driver faced forward, stared straight ahead, and did not acknowledge Bondanzas presence. He looked at Bondanza from the corners of his eyes as if attempting to determine whether Bondanza was still there.
Bondanza pulled behind the U-Haul and activated his emergency lights. Bondanza intended to stop the U-Haul "[t]o see if [he] had a reasonable suspicion to pull him over [¶]. . . [¶] [f]or alien smuggling . . . ." Bondanzas experience taught him that a dramatic reduction in speed was consistent with alien and narcotics smuggling, as was looking nervously back and forth.
After the U-Haul stopped, Bondanza walked up to the drivers side door and identified himself. Before Bondanza could say anything else, the driver—Reyes—blurted out that he was helping a friend move and did not know what was in the back of the U-Haul. Reyess speech was very rapid and slurred and his hands were shaking. Bondanza asked if there was anyone else in the truck. Reyes said, "No." Bondanza asked for the name of the friend who was moving. Reyes stated he did not know.
Bondanza called for border patrol agent Jeffrey Hogan, who was a canine handler, and asked Reyes to step out of the U-Haul. Reyes complied. Bondanza asked for permission to search the back of the U-Haul. Reyes consented. Bondanza noticed a lock on the U-Hauls rear door and asked Reyes if he had the key. Reyes said, "No."
Agent Hogan arrived with his dog. The dog was trained to sniff vehicles exteriors to detect hiding humans and several types of contraband. The dog sniffed the U-Haul and "alerted."
Bondanza saw a set of keys on the middle console in the U-Hauls cab. He took the keys to Reyes and asked if they were his. Reyes said, "No." Bondanza inserted one of the keys in the lock in the rear door of the U-Haul. The door opened immediately. Inside were several very large cellophane-wrapped bundles—the wrapping usually used for loads of smuggled marijuana. Through the cellophane, Bondanza saw a leafy green substance. He arrested Reyes. Bondanza counted 235 bundles. He also found a handgun in the U-Haul.
DISCUSSION
Reyes contends the detention was not supported by a reasonable suspicion and was therefore invalid.
The appellate court reviewing the denial of a suppression motion must uphold all express and implied factual findings of the trial court if substantial evidence supports them, and independently measure them against the proper constitutional standard of reasonableness. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224.) Thus, we must view the facts in the light most favorable to respondent. (People v. Berkeley (1978) 88 Cal.App.3d 457, 459, fn. 1.)
"Border Patrol agents have no part in enforcing laws that regulate highway use . . . ." (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 883.) When on roving patrol, border patrol agents "may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." (Id. at p. 884). This assessment must be based upon the totality of the circumstances (Id. at p. 885, fn. 10; United States v. Cortez (1981) 449 U.S. 411, 414), and "must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." (Id. at p. 418.) Factors that may be taken into account include the characteristics of the area; the proximity to the border; information about recent illegal border crossings in the area; the usual traffic patterns on the particular road; the officers previous experience with alien traffic; the drivers behavior, such as erratic driving or obvious attempts to evade the officer; and aspects of the vehicle itself. (United States v. Brignoni-Ponce, supra, 422 U.S. at pp. 884-885.)
Bondanza was not cross-deputized by the Imperial County Sheriffs Department.
The deputy district attorney argued that the area where Bondanza made his U-turn was close to the international border, but there was no evidence to that effect.
Here, there was no evidence concerning any of these factors except Bondanzas testimony that Reyess apparent nervousness—which Bondanza observed for no more than three minutes—and a dramatic reduction in speed were consistent with alien and narcotics smuggling. The remaining basis of Bondanzas suspicion was the information he obtained from the unidentified driver. In order to constitute reasonable suspicion, an anonymous tip must "be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." (Florida v. J.L. (2000) 529 U.S. 266, 272.) Exigent circumstances, however, may justify a stop "despite the inability to corroborate the informants reliability." (People v. Wells (2006) 38 Cal.4th 1078, 1084 [anonymous, contemporaneous telephone tip of a possibly intoxicated driver "`weaving all over the roadway "]; People v. Dolly (2007) 40 Cal.4th 458 [anonymous 911 call contemporaneously reporting an assault with a firearm].)
Here, there were no exigent circumstances. Furthermore, the anonymous tip neither identified a determinate person nor described illegal activity. (Florida v. J.L., supra, 529 U.S. at p. 273, fn. *.) It did not describe the driver of the U-Haul by gender, race, age or any other characteristic; did not describe the persons seen running to the U-Haul; and did not provide details identifying the U-Haul itself, such as markings or license plate number. (Cf. People v. Wells, supra, 38 Cal.4th at p. 1081 ["an 80s model blue van"]; People v. Dolly, supra, 40 Cal.4th at p. 462 [a 911 call described "a light-skinned African-American male . . . [with] a bandage over his left hand, as though it had been broken . . . in the drivers seat of a gray Nissan Maxima;" a second 911 call two minutes later stated the vehicle "was black, not gray"].) Bondanza stopped the U-Haul Reyes was driving simply because it was closer than the other U-Haul. There was no evidence as to when the unidentified driver saw the U-Haul, how long after the drivers report Bondanza saw the U-Haul, whether there were any intervening freeway entrances and exits, or any other factor that might provide a reasonable basis for this choice. (Cf. People v. Dolly, supra, 40 Cal.4th at p. 468 [details of tip confirmed by police "within minutes"]; People v. Wells, supra, 38 Cal.4th at p. 1081 ["only one entry/exit ramp between [the officers] position and the reported location of the van"].)
The trial court erred by denying the suppression motion.
DISPOSITION
The judgment is reversed and the cause remanded to the trial court. Upon a motion to withdraw Reyess guilty plea within 30 days of the finality of this decision, the trial court is directed to vacate the guilty plea, reinstate all charges and allegations in the information and proceed in accordance with the views expressed in this opinion. If Reyes fails to make a timely motion or waives the right to withdraw his plea, the trial court is directed to reinstate the judgment.
We concur:
HUFFMAN, J.
AARON, J.