United States v. Samantha Velazquez

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 10, 2018
• Docket: 16-50323
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50323

Plaintiff-Appellee, D.C. No. 3:15-cr-02910-LAB-1 v.

SAMANTHA CHRISTINE VELAZQUEZ, MEMORANDUM*

Defendant-Appellant.

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

Argued and Submitted April 9, 2018 Pasadena, California

Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.

Samantha Velazquez appeals her convictions and sentence for importing

methamphetamine and cocaine in violation of 21 U.S.C. §§ 952 and 960. On

November 4, 2015, U.S. Customs and Border Protection officers arrested

Velazquez at the San Ysidro, California Port of Entry (Port of Entry) after they

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Irene M. Keeley, United States District Judge for the Northern District of West Virginia, sitting by designation. discovered methamphetamine and cocaine hidden in her car. Velazquez challenges

the district court’s denial of two motions to suppress and its admission of evidence

in contravention of a prior in limine ruling. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

1. “We review de novo the district court’s ruling on a motion to suppress and

for clear error the district court’s underlying findings of fact.” United States v.

Gorman, 859 F.3d 706, 714 (9th Cir. 2017) (quoting United States v. Evans, 786

F.3d 779, 784 (9th Cir. 2015)). We may affirm a correct decision on any basis

supported by the record. See United States v. Wash., 641 F.2d 1368, 1371 (9th Cir.

1981).

First, because we find that the independent source doctrine applies, the

district court properly denied Velazquez’s motion to suppress an audio recording

discovered when Homeland Security Investigations (HSI) agents downloaded the

contents of her cell phone with a Cellebrite device at the Port of Entry. Under the

independent source doctrine, “evidence initially discovered during, or as a

consequence of an unlawful search, but later obtained independently from

activities untainted by the initial illegality,” may be admitted. Murray v. United

States, 487 U.S. 533, 537 (1988). Here, almost three months after the arrest,

Special Agent Gayton obtained a warrant to search Velazquez’s cell phone, along

with two other cell phones that Velazquez had in her possession at the time of

2 16-50323 arrest. Agent Gayton had probable cause for the warrant and would have sought

the warrant absent any tainted evidence of the audio recording on Velazquez’s cell

phone because, given the drugs found in Velazquez’s car, there was reason to

believe that the cell phone had been used to traffic drugs. See United States v.

Washington, 700 Fed. App’x 619, 621 (9th Cir. 2017) (citing United States v.

Duran-Orozco, 192 F.3d 1277, 1281 (9th Cir. 1999)). Thus, the audio recording

was “separately discovered through an independent source.” Gorman, 859 F.3d at

718.

Second, the district court properly denied Velazquez’s motion to suppress

pre-Miranda statements about her job at 7-Eleven made during an interview with

border patrol agents following her arrest. The agents were not required to secure a

Miranda waiver under the routine booking question exception. See Pennsylvania v.

Muniz, 496 U.S. 582, 601 (1990); United States v. Williams, 842 F.3d 1143, 1147

(9th Cir. 2016). The agents’ questions about Velazquez’s job at 7-Eleven were

necessary to secure biographical data for a Drug Enforcement Administration

Personal History Report. Further, Velazquez’s employment history was not related

to an element of importing methamphetamine and cocaine. See United States v.

Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983). The agents therefore had no

reason to believe that routine questions about Velazquez’s occupation were

“reasonably likely to elicit an incriminating response.” United States v. Zapien,

3 16-50323 861 F.3d 971, 975 (9th Cir. 2017) (per curium) (internal quotation marks and

citation omitted).

2. We review a district court’s decision to alter an in limine ruling for an

abuse of discretion. See United States v. Bensimon, 172 F.3d 1121, 1125, 1127 (9th

Cir. 1999). At trial, the district court contradicted its prior in limine ruling by

admitting audio and video recordings of Velazquez’s three previous border

crossings for impeachment purposes. The district court acted well within its

discretion in doing so. See Ohler v. United States, 529 U.S. 753, 758 n.3 (2000)

(providing that a trial judge “may always change his mind [regarding an in limine

ruling] during the course of a trial”). The district court’s ruling was not final, as the

court expressly advised that it would “wait and see” if Velazquez testified, and

Velazquez was “not entitled to a definitive [in limine] ruling.” Bensimon, 172 F.3d

at 1127. Moreover, the testimony of Velazquez’s former supervisor put

Velazquez’s credibility at issue and that new information warranted the admission

of the recordings. Id.

AFFIRMED.

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