United States v. Ascension Alverez-Tejeda, AKA Chombi

491 F.3d 1013, 2007 U.S. App. LEXIS 13378, 2007 WL 1651268
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 8, 2007
Docket06-30289
StatusPublished
Cited by14 cases

This text of 491 F.3d 1013 (United States v. Ascension Alverez-Tejeda, AKA Chombi) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ascension Alverez-Tejeda, AKA Chombi, 491 F.3d 1013, 2007 U.S. App. LEXIS 13378, 2007 WL 1651268 (9th Cir. 2007).

Opinions

Opinion by Judge KOZINSKI; Concurrence by Judge FISHER.

KOZINSKI, Circuit Judge.

We consider the Fourth Amendment’s limits on the use of trickery and force in conducting seizures.

Facts

Ascension Alverez-Tejeda and his girlfriend drove up to a traffic light. As the light turned green, the car in front of them lurched forward, then stalled. Alverez-Tejeda managed to stop in time, but the truck behind him tapped his bumper. As Alverez^-Tejeda got out to inspect the damage, two officers pulled up in a police cruiser and arrested the truck driver for drunk driving. The officers got Alverez-Tejeda and his girlfriend to drive to a nearby parking lot, leave the keys in the car and get into the cruiser for processing. Just then, out of nowhere, someone snuck into their car and drove off with it. As the couple stood by in shock, the police jumped into their cruiser and chased after the car thief with sirens blaring. The police then returned to the parking lot, told the couple that the thief had gotten away and dropped them off at a local hotel.

The whole incident was staged. DEA agents learned that one of the leaders of a drug conspiracy was dealing drugs out of his car and deduced from several intercepted calls and direct surveillance that Alverez-Tejeda, one of the conspiracy’s subordinates, was using the leader’s car to transport illicit drugs. The agents decided to stage an accident/theft/chase in order to seize the drugs without tipping off the [1016]*1016conspirators. Every character in the incident, other than Alverez-Tejeda and his girlfriend, was either a DEA agent or a cooperating police officer.

Having seized the car through this ruse, the agents obtained a search warrant and discovered cocaine and methamphetamine inside, as well as property belonging to Alverez-Tejeda and his girlfriend. The government indicted Alverez-Tejeda but the district court found that the method of seizure violated the Fourth Amendment and suppressed the evidence obtained from the vehicle. The government filed an interlocutory appeal. See 18 U.S.C. § 3731.

Analysis

The parties agree that the DEA agents had the right to seize the car without a warrant: “If agents have probable cause to believe that a car is or has been used for carrying contraband, they may summarily seize it pursuant to the federal forfeiture statutes.” United States v. Johnson, 572 F.2d 227, 234 (9th Cir.1978) (internal quotation marks omitted); see also Florida v. White, 526 U.S. 559, 561, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999) (police may administratively seize a car without a warrant). The agents had probable cause to believe that the car had been “used for carrying contraband” because they had purchased drugs from inside it as part of their investigation. They also had probable cause to believe the car was carrying contraband on the day of the seizure based on several intercepted phone calls and direct surveillance. The only issue in doubt is whether their unorthodox method of seizing the car was constitutional.

An otherwise lawful seizure can violate the Fourth Amendment if it is executed in an unreasonable manner. See United States v. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). “To assess the reasonableness of th[e] con-ducida court] must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Id. at 125, 104 S.Ct. 1652 (internal quotation marks omitted). While agents have discretion to decide “how best to proceed” in conducting a covert operation, they must abide by the “general” protections of the Fourth Amendment. Dalia v. United States, 441 U.S. 238, 257, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979).

The benchmark for the Fourth Amendment is reasonableness, which requires us to weigh the government’s justification for its actions against the intrusion into the defendant’s interests. Jacobsen, 466 U.S. at 125, 104 S.Ct. 1652. The government here certainly had important reasons for employing this unusual procedure in seizing the car. First, the agents wanted to stop the drugs before they reached their ultimate destination — a patently important goal. Second, they wanted to protect the anonymity of the ongoing investigation — another vital objective. The Supreme Court has emphasized “the necessity for some undercover police activity,” Lewis v. United States, 385 U.S. 206, 208-09, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), and explained that “[ajrtifice and stratagem may be employed to catch those engaged in criminal enterprises!;] ... to reveal the criminal design; [or] to expose the illicit traffic, ... the illegal conspiracy, or other offenses,” id. at 209 n. 5, 87 S.Ct. 424 (quoting Sorrells v. United States, 287 U.S. 435, 441-42, 53 S.Ct. 210, 77 L.Ed. 413 (1932)) (first alteration in original). Protecting the secrecy of an ongoing investigation is a well-recognized consideration in the administrative seizure process. See 18 U.S.C. § 983(a)(l)(D)(v) (providing for an exten[1017]*1017sion not to exceed 60 days for notifying interested parties where more prompt notice would “seriously jeopardiz[e] an investigation”).

At the same time, the intrusion into Alverez-Tejeda’s Fourth Amendment interests was relatively mild. First, Alver-ez-Tejeda argues that the agents were unreasonable in using force to seize the car. While the police may not use excessive force in conducting a search or seizure, see, e.g., Winterrowd v. Nelson, 480 F.3d 1181, 1184, 1186 (9th Cir.2007), the force here was minimal. The district court found that the agent in the truck bumped the stationary car with “enough force ... so that the tap was felt by Defendant to the extent that it caused him to get out of his car and examine his bumper” (emphasis added), but the truck was moving at only 1 to 2 miles per hour and the tap caused no harm to the couple and left no scratch on the car. A tap is a use of force, to be sure, but it is hardly excessive. The staged collision involved just enough force to pull off the “drunk driver” ruse, without causing physical injury to the suspects.

This would be a different case if the government’s tactics created a serious risk of bodily injury or escalation of violence, which might well have outweighed the interest in protecting the investigation. The balance may well be different if the police simulated a car heist by running Alverez-Tejeda off of the road or staged a carjacking by holding him up at gunpoint. In this case, however, the use of force and potential for physical harm were within reasonable bounds.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kisliuk v. City of Fort Bragg
N.D. California, 2025
United States v. Robert Hamilton
131 F.4th 1087 (Ninth Circuit, 2025)
United States v. Vantiger
Ninth Circuit, 2024
United States v. Stefan Ramirez
976 F.3d 946 (Ninth Circuit, 2020)
Carole Saunders v. Richard Silva
473 F. App'x 769 (Ninth Circuit, 2012)
Ciampi v. City of Palo Alto
790 F. Supp. 2d 1077 (N.D. California, 2011)
Tuttelman v. City of San Jose
420 F. App'x 758 (Ninth Circuit, 2011)
Tate v. District of Columbia
627 F.3d 904 (D.C. Circuit, 2010)
United States v. Guzman-Padilla
573 F.3d 865 (Ninth Circuit, 2009)
Exendine v. Sammamish City
275 F. App'x 596 (Ninth Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
491 F.3d 1013, 2007 U.S. App. LEXIS 13378, 2007 WL 1651268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ascension-alverez-tejeda-aka-chombi-ca9-2007.