United States v. Eduardo Durazo ( 2018 )

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                                                                           FILED
NOT FOR PUBLICATION
MAR 08 2018
UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                       No.    17-10116
Plaintiff-Appellee,                D.C. No.
4:15-cr-01868-JGZ-BPV-1
v.
EDUARDO VASQUEZ DURAZO, AKA                     MEMORANDUM*
Eduardo Vasquez-Durazo,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted February 12, 2018
San Francisco, California
Before: HAWKINS, BEA, and N.R. SMITH, Circuit Judges.
Eduardo Vasquez-Durazo (“Durazo”) appeals his conviction for conspiracy to
possess and possession with intent to distribute fifty kilograms of marijuana. On
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
appeal, Durazo claims error in denying his motion to suppress. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.1
Durazo’s stop was supported by reasonable suspicion. An officer possessed of
a reasonable suspicion “that criminal activity ‘may be afoot’” may conduct an
investigatory stop. United States v. Berber-Tinoco,

510 F.3d 1083

, 1087 (9th Cir.
2007) (quoting United States v. Sokolow,

490 U.S. 1

, 7 (1989)). In reviewing a
reasonable suspicion determination in the context of a Border Patrol search, we
consider the totality of the circumstances, including “1) characteristics of the area; 2)
proximity to the border; 3) usual patterns of traffic and time of day; 4) previous alien
or drug smuggling in the area; 5) behavior of the driver, including ‘obvious attempts
to evade officers’; 6) appearance or behavior of passengers; 7) model and appearance
of the vehicle; and, 8) officer experience.” United States v. Garcia-Barron,

116 F.3d 1305

, 1307 (9th Cir. 1997) (quoting United States v. Brignoni-Ponce,

422 U.S. 873

,
885 (1975)). Here, 1) Durazo was driving along a known smuggling route while the
Border Patrol checkpoint along that route was temporarily closed; 2) he had placed
upon him a Treasury Enforcement Communication System (“TECS”) alert due to his
1
The denial of a motion to suppress is reviewed de novo, but the factual
findings underlying the district court’s decision are reviewed for clear error. United
States v. McTiernan,

695 F.3d 882

, 887 (9th Cir. 2012) (citing United States v.
Caseres,

533 F.3d 1064

, 1067 (9th Cir. 2008)).
2
arrest three months prior for alien smuggling; 3) he appeared to be driving in tandem
with another vehicle that also had a TECS alert for drug smuggling; 4) both vehicles
were recently registered, which is often the case with vehicles involved in smuggling;
5) both vehicles were coming from a border town; and, 6) the other vehicle had
crossed the border only an hour earlier. When “filtered through the lens of [Agent
Jaramillo’s] training and experience” in smuggling interdiction, United States v.
Valdes-Vega,

738 F.3d 1074

, 1079 (9th Cir. 2013) (en banc) (citing

Brignoni-Ponce, 422 U.S. at 885

), these facts provided reasonable suspicion for the stop.
The search of the backseat was also proper. A warrantless search based on
valid consent is constitutional. See Schneckloth v. Bustamonte,

412 U.S. 218

, 222
(1973). Agent Jaramillo asked if he could “open the door and look in the back seat[,]”
and Durazo consented. Tilting the backseat forward did not exceed that consent. See
United States v. McWeeney,

454 F.3d 1030

, 1034 (9th Cir. 2006) (“[A]n officer does
not exceed the scope of a suspect’s consent by ‘searching’ when the officer asked only
if he or she could ‘look.’”). The search was therefore lawful.
Finally, the district court did not plainly err in failing to rule sua sponte that the
stop’s duration was unreasonable. Investigatory stops must be temporary and no
longer than necessary to effectuate the stop’s purpose. Florida v. Royer,

460 U.S. 491

, 500 (1983). During the five-minute-or-less stop, Agent Jaramillo diligently
3
pursued his smuggling suspicions. Thus, the district court did not plainly err. See
United States v. Torres-Sanchez,

83 F.3d 1123

, 1129 (9th Cir. 1996) (asking “whether
the officers ‘diligently pursued a means of investigation that was likely to confirm or
dispel their suspicions quickly’” (quoting United States v. Sharpe,

470 U.S. 675