United States v. Samantha Velazquez ( 2018 )

NOT FOR PUBLICATION FILED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
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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,
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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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