United States v. Osuna-Samaniego

208 F. App'x 554

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 29, 2006
• Docket: No. 06-30075
• Status: Published

Opinions

MEMORANDUM

*

Maximino Osuna-Samaniego (“Osuna”) appeals the district court’s denial of his motion to suppress and his 70-month prison sentence for possession with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court properly denied Osuna’s motion to suppress statements made during a traffic stop, evidence recovered as a result of the traffic stop, and statements made after the traffic stop. It is undisputed that Spokane County Sheriff Deputies Ballard Bates and Kirk A. Banks properly initiated the traffic stop because they had probable cause to believe Osuna violated Wash. Rev.Code § 46.61.145 by following another vehicle too closely. The deputies’ initial inquiries were reasonably related to the traffic stop. See United States v. Chavez-Valenzuela, 268 F.3d 719, 724 n. 4 (9th Cir.2001), amended by 279 F.3d 1062 (9th Cir.2002). The deputies justifiably expanded the scope of the traffic stop and detained Osuna to seek his consent to search the vehicle because: (1) Osuna drove a car registered to another person, (2) he could not remember the registered owner’s last name, (3) he came from a residence known for drug activity, and (4) Deputy Banks recognized the vehicle from a previous drug investigation.

Contrary to the dissent’s analysis, the Supreme Court directs us to look at the “ ‘totality of the circumstances’ of each case” and give due weight to the factual inferences drawn by the law enforcement officers and the district court. See United States v. Arvizu, 534 U.S. 266, 273-77, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (holding that the approach taken by the Ninth Circuit — evaluating and rejecting listed factors in isolation from each other — departed sharply from the teachings of numerous Supreme Court cases and failed to consider the “totality of the circumstances”) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Here, we believe that the factors taken together sufficed to form a “particularized and objective basis” for the deputies to suspect that Osuna engaged in wrongdoing, which justified expanding the scope of the initial traffic stop. Cortez, 449 U.S. at 417-18, 101 S.Ct. 690; see also United States v. Perez, 37 F.3d 510, 514 (9th Cir.1994) (affirming denial of motion to suppress based on similar suspicious factors).

The district court did not clearly error by finding that Osuna voluntarily consented to the search. Deputy Bates concluded that Osuna spoke English very well; Osuna understood Deputy Banks’s instructions that he could decline, stop, or limit the search at any time; and Osuna verbally consented to the search and signed the consent to search card. See United States v. Amano, 229 F.3d 801, 804-05 (9th Cir.2000) (providing factors for assessing the voluntariness of consent by a foreign national). Because the deputies legally stopped, detained, and searched Osuna’s vehicle, they could use the evidence seized from the vehicle to support probable cause to search Osuna’s residence, and they could lawfully question him about the evidence seized from the car and his residence.

Finally, the district court’s 70-month prison sentence is reasonable. Osuna agrees that the district court correctly calculated the Guidelines range, and the record demonstrates that the district court considered the factors set forth in 18 U.S.C. § 3553(a) before imposing a sentence at the low-end of the Guidelines range. See United States v. Marcial-Santiago, 447 F.3d 715, 717 (9th Cir.2006).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.