United States v. Jose Cortez-Luna

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 23, 2018
• Docket: 16-10529
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10529

Plaintiff-Appellee, D.C. No. 2:16-cr-00074-SRB-1 v.

JOSE ANGEL CORTEZ-LUNA, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 17-10002

Plaintiff-Appellee, D.C. No. 2:16-cr-00074-SRB-2 v.

ENRIQUE SERRATO-NAVARRO,

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Argued and Submitted January 9, 2018 San Francisco, California

Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants Jose Angel Cortez-Luna and Enrique Serrato-Navarro appeal

from the district court’s order denying their motion to suppress evidence of

methamphetamine discovered by Border Patrol agents during a search of a vehicle

Defendants had been driving. Defendants also challenge the district court’s

imposition of certain supervised release conditions as part of their sentences. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review a district court’s denial of a motion to suppress evidence de

novo, and the district court’s underlying factual findings for clear error. United

States v. Job, 871 F.3d 852, 859 (9th Cir. 2017) (citations omitted). Where, as here,

a defendant failed to object to conditions of supervised release at sentencing, we

review the imposition of those conditions for plain error. United States v. LaCoste,

821 F.3d 1187, 1190 (9th Cir. 2016) (citation omitted).

The district court did not err in denying Defendants’ motion to suppress. The

district court plausibly found that the initial encounter between Agent Gatewood

and Defendants, including Gatewood’s request to examine Defendants’

identification, was voluntary. See United States v. Drayton, 536 U.S. 194, 201

(2002) (explaining that a law enforcement officer may pose questions and ask for

identification without implicating any Fourth Amendment interest, so long as the

officer does not induce cooperation by coercion). The district court also properly

concluded that Defendants’ responses during their encounter with Agents

2 Gatewood and White, combined with the results of Agent Gatewood’s record

checks, gave rise to reasonable suspicion to seize Defendants at approximately

10:50 am, when Gatewood retained control of Defendants’ identification

documents. See United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.

1997) (“When a law enforcement official retains control of a person’s

identification papers . . . longer than necessary to ascertain that everything is in

order, and initiates further inquiry while holding on to the needed papers, a

reasonable person would not feel free to depart.”). Finally, once the agents seized

Defendants for Fourth Amendment purposes, the agents acted with reasonable

diligence in summoning a drug-sniffing dog from a nearby Border Patrol

checkpoint to conduct a search. Although the agent with the drug-sniffing dog took

15-20 minutes to arrive, the agents called for the dog no more than 10 minutes

after the investigative detention began. This was a reasonable course of action that

did not unnecessarily prolong Defendants’ detention. See United States v. Sharpe,

470 U.S. 675, 685 (1985) (explaining that “common sense and ordinary human

experience” must govern the inquiry into whether law enforcement officers

unreasonably prolonged an investigative detention).

We reject Defendants’ contention that Agent Gatewood was required to call

a drug-sniffing dog immediately upon seeing Defendants come to a stop at the end

of a single-lane access road. Although Agent Gatewood testified that certain things

3 seemed unusual about Defendants driving in that part of Arizona at the time in

question, it was entirely reasonable for Agent Gatewood to approach Defendants,

ask basic questions, and continue to run record checks before taking the more

serious step of calling a drug-sniffing dog. Reasonable diligence does not require

law enforcement officers to leverage every investigative tool at their disposal

immediately. Cf. id. at 686 (explaining that in the course of an investigative

detention, law enforcement agents must be permitted to “graduate their responses”

according to the demands of the situation) (citation omitted). Under the

circumstances presented here, Gatewood’s step-by-step investigative approach did

not violate Defendants’ Fourth Amendment rights.

Defendants’ reliance on United States v. $191,910.00 in U.S. Currency, 16

F.3d 1051 (9th Cir. 1994), superseded by statute on other grounds as stated in

United States v. $80,180.00 in U.S. Currency, 303 F.3d 1182, 1184 (9th Cir. 2002),

is misplaced. There, we held that law enforcement agents did not act with diligence

when, having suspected an individual of drug trafficking before the individual

boarded a flight, the agents failed to have a drug-sniffing dog at the airport when

the suspect landed. Id. at 1061. The instant case is materially different. Here, Agent

Gatewood did not suspect Defendants of drug trafficking prior to speaking with

them and running record checks, but rather approached them to see if there was

anything that would raise suspicion. We have acknowledged that in analogous

4 situations of “general surveillance,” where agents are “not awaiting any particular

suspect,” “it is much more reasonable for the government to summon [a drug-

sniffing] dog only after acquiring reasonable suspicion.” Id. at 1062 (citation

omitted). Given that Gatewood had no advance knowledge or suspicion of

Defendants as potential suspects, it was not unreasonable to delay calling for a

drug-sniffing dog.

The district court did not plainly err in imposing certain supervised release

conditions on Defendants. First, given that Defendants maintained their legal status

at the time of sentencing, the conditions imposed by the district court were

reasonably related to “deterrence, protection of the public, or rehabilitation.”

United States v. Watson, 582 F.3d 974, 982 (9th Cir. 2009). The district court was

not required to predict the precise trajectory and outcome of Defendants’

deportation proceedings before imposing standard conditions of supervised release.

Second, Defendants’ objection to two of the conditions as unconstitutionally vague

fails because neither condition speaks “in terms so vague that men of common

intelligence must necessarily guess at its meaning and differ as to its application.”

United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004) (quotation and citation

omitted).

AFFIRMED.