United States v. Salvador Vasquez

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2021
• Docket: 19-50275
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50275

Plaintiff-Appellee, D.C. No. 2:18-cr-00247-DOC-1 v.

SALVADOR VASQUEZ, AKA Clumsy, MEMORANDUM* AKA Junior, AKA Lilone, AKA Vasquez Salvador, AKA Vaszquez Salvador, AKA Vazquez Salvador, AKA Clumsy Vasquez, AKA Junior Vasquez, AKA Lil One Vasquez, AKA Lilone Vasquez, AKA Salvador Vazquez,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted May 14, 2021** Pasadena, California

Before: R. NELSON and LEE, Circuit Judges, and STEIN,*** District Judge.

* 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). *** The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. Defendant Salvador Vasquez appeals the denial of his motion to suppress

evidence and statements following his conditional guilty plea to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g). He argues that officers

did not have reasonable suspicion to stop his vehicle, lacked probable cause to search

the vehicle, and did not read him Miranda warnings prior to questioning him. We

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

We review the district court’s reasonable suspicion and probable cause

determinations de novo, “reviewing findings of historical fact for clear error and

giving due weight to inferences drawn from those facts by resident judges and local

law enforcement officers.” United States v. Valdes-Vega, 738 F.3d 1074, 1077 (9th

Cir. 2013) (en banc) (cleaned up). And when reviewing factual findings for clear

error, we affirm unless the findings are “illogical, implausible, or without support in

the record.” United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010).

1. The officers had reasonable suspicion for the traffic stop based on a

possible violation of California Vehicle Code § 22502. See United States v. Lopez-

Soto, 205 F.3d 1101, 1104–05 (9th Cir. 2000) (holding that only reasonable

suspicion is required for a traffic stop). Section 22502 provides that vehicles stopped

on a roadway “shall be stopped or parked with the right-hand wheels of the vehicle

parallel to, and within 18 inches of, the right-hand curb.” Cal. Veh. Code § 22502(a).

It also states that vehicles may not “stop or park upon a roadway in a direction

2 opposite to that in which traffic normally moves.” Id. § 22502(b)(2).

Several factors supported the officers’ reasonable suspicion to stop the van.

Photographs show that the van was protruding out into the road, did not have its

wheels adjacent to the curb, and had its front end angled towards oncoming traffic.

A gate blocked the van from pulling any further off the road, so it continued to

obstruct traffic. The officers observed the van for twenty to thirty seconds but never

saw anyone try to open the gate or reposition the van. Based on these factors, the

officers believed that a violation of § 22502 had occurred, and they initiated a stop

to warn or cite the driver. Considering the totality of the circumstances, the district

court did not clearly err in finding that the van was obstructing the roadway, and that

thus there was reasonable suspicion to support the traffic stop. See Valdes-Vega,

738 F.3d at 1077–78.

2. The officers had probable cause to search the van based on “the totality of

the circumstances known to [them] at the time of the search.” United States v. Ped,

943 F.3d 427, 431 (9th Cir. 2019) (cleaned up). Probable cause exists “where the

known facts and circumstances are sufficient to warrant a man of reasonable

prudence in the belief that contraband or evidence of a crime will be found.” Ornelas

v. United States, 517 U.S. 690, 696 (1996) (citations omitted). Here, the district

court’s finding that the officers smelled burnt marijuana, combined with other

factors, supports probable cause for the vehicle search.

3 First, the district court’s finding that the officers smelled burnt marijuana was

not “illogical, implausible, or without support in the record.” Spangle, 626 F.3d at

497. Rather, it was based on an assessment of the witnesses’ credibility — to which

this court gives deference, see United States v. Bontemps, 977 F.3d 909, 917 (9th

Cir. 2020) — and corroborating evidence. The officers consistently reported

smelling a strong odor of burnt marijuana emanating from the van. Evidence found

during the search of the van corroborates the officers’ testimony. This included 20-

30 vape pens, a text regarding marijuana vape cartridges, a vape charger, and $6,680

in cash that suggested possible drug transactions. The female passengers also

reported that another passenger had been vaping earlier that day. The district court

considered the defense’s opposing testimony but rejected it as “false” due to various

inconsistencies. Considering the evidence as a whole, the district court did not

clearly err in finding that the officers smelled burnt marijuana.

Second, Vasquez argues that, even if officers smelled burnt marijuana, that

cannot support probable cause due to California’s Proposition 64, which legalizes

some marijuana use. See Cal. Health & Safety Code § 11362.1(a)(1). It is true that

the smell of marijuana alone no longer provides a basis for probable cause. See

People v. Johnson, 50 Cal. App. 5th 620, 634 (Cal. Ct. App. 2020). But, when

combined with other factors, the smell of marijuana may still support probable cause

that a vehicle contains evidence of marijuana activity that remains unlawful under

4 California law. 1 See, e.g., Cal. Veh. Code § 23152(f) (stating that it is unlawful to

drive under the influence of any drug); Cal. Health & Safety Code § 11054(d)(13)

(classifying marijuana as a controlled substance). Driving under the influence of

marijuana is a misdemeanor in California, see Cal. Veh. Code § 23536, and thus an

officer’s reasonable belief that a vehicle contains evidence of that offense will

support probable cause for a warrantless search, see Ornelas, 517 U.S. at 696.2

Here, several factors supported probable cause. The officers smelled burnt

marijuana coming from the van; the van was stopped in front of a building known

to be controlled by a gang, in an area known for drug use and drug trafficking; the

van was only partially pulled into a driveway, with its headlights and taillights on,

and all four occupants still inside; and the people surrounding the van dispersed

when the officers approached. From these facts, it was reasonable for the officers to

infer that a violation of California’s marijuana laws might have taken place, and that

evidence of such a violation would be found in the van. See United States v. Scott,

1 The government did not waive its argument on this issue, as it presented the argument to the district court in its opposition to Vasquez’s motion to suppress. See United States v. Scott, 705 F.3d 410, 415 (9th Cir. 2012). 2 Vasquez argues that an infraction, such as possessing an open container of marijuana in a moving vehicle, see Cal Veh. Code § 23222, cannot support a warrantless search under the automobile exception. We need not address this argument, as driving under the influence of marijuana is a misdemeanor rather than a civil infraction.

5 705 F.3d 410, 417 (9th Cir. 2012). The van’s position suggested that it had recently

been in transit, and the smell of burnt — rather than fresh — marijuana supports an

inference that Vasquez may have been driving under the influence of marijuana.

Thus, under the totality of the circumstances, probable cause supported the search

of the van.

3. The district court did not clearly err in finding that Vasquez received

Miranda warnings prior to being questioned about the gun found in the van. The

district court specifically noted that this issue came “down to credibility,” and when

credibility is at issue, “we give special deference to the district court[] . . . and

generally cannot substitute our own judgment of the credibility of a witness for that

of the fact-finder.” Bontemps, 977 F.3d at 917 (cleaned up).

Vasquez and the officers dispute whether Miranda warnings were given, and

the only evidence before the district court was the testimony and declarations

presented at the suppression hearing. The officers testified, consistent with their

reports, that they read Vasquez and his companions Miranda warnings from a

department-issued card, whereas Vasquez and the van’s other occupants denied

receiving such warnings. The district court noted numerous inconsistencies and

implausible statements in the testimony of Karma Benward — the defense’s main

witness. Similar issues were not present in the officers’ statements; faced with

opposing accounts of the incident, the district court credited the officers’ testimony.

6 Given the concerns about Benward’s testimony and the lack of evidence

contradicting the officers’ accounts, the district court did not clearly err in finding

that Miranda warnings were given.

AFFIRMED.