United States v. Cruz Cazarez-Carillo

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2024
• Docket: 22-50026
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50026

Plaintiff-Appellee, D.C. No. 3:21-cr-01279-LAB-1 v.

CRUZ MIGUEL CAZAREZ-CARILLO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted February 5, 2024** Pasadena, California

Before: WARDLAW, FRIEDLAND, and SUNG, Circuit Judges.

Cruz Miguel Cazarez-Carillo appeals the district court’s denial of his motion

to suppress. We affirm.

The district court found that Cazarez-Carillo pulled his tractor-trailer over of

his own accord and that Agent Braun then stopped and asked if he could conduct a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Panel search. The parties agree that at that point, Cazarez-Carillo consented to the

search. Based on its factual findings, the district court concluded that the entire

encounter was consensual, so Cazarez-Carillo’s Fourth Amendment rights were

not implicated. In the alternative, the district court held that, even if Agent Braun

had pulled Cazarez-Carillo over, that seizure would have been supported by

reasonable suspicion.

“We review a district court’s denial of a motion to suppress de novo.

Whether an encounter between a defendant and an officer constitutes a seizure is a

mixed question of law and fact that we review de novo. We review the trial court’s

factual findings, however, for clear error.” United States v. Ramirez, 976 F.3d 946,

951 (9th Cir. 2020) (quotation marks and citations omitted). We review the district

court’s credibility determinations for clear error. United States v. Vasquez, 858

F.2d 1387, 1391 (9th Cir. 1988).

The district court’s finding that Cazarez-Carillo pulled over his tractor-trailer

of his own accord before Agent Braun pulled in behind him was not clearly

erroneous. Agent Hatton, a radio dispatch officer, made a contemporaneous note

that Agent Braun was initiating a consensual encounter. The district court found

that Agents Braun and Hatton had no reason to make an inaccurate record and

found their testimony to be credible. The district court did not find credible

Cazarez-Carillo’s contrary testimony, in part because he had lied to agents after

Panel 2 being arrested, and in part because his testimony at the suppression hearing about

what had occurred the evening of the encounter was inconsistent and unpersuasive.

These credibility determinations were not clearly erroneous.

Taking as true that Agent Braun did not pull over Cazarez-Carillo, there was

no Fourth Amendment seizure. And Cazarez-Carillo does not contest that he

consented to a search of the tractor-trailer once Agent Braun approached. Cazarez-

Carillo’s Fourth Amendment rights were therefore not violated. In light of that

conclusion, we need not reach Cazarez-Carillo’s remaining arguments.

AFFIRMED.

Panel 3