Filed 4/18/16 P. v. Santos-Garcia CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050941

         v.                                                            (Super. Ct. No. 13HF2920)

JULIO SANTOS-GARCIA,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Sheila F.
Hanson, Judge. Reversed.
                   William Paul Melcher, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Marilyn L.
George and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A border patrol agent pulled over defendant’s vehicle. The agent suspected
defendant was either smuggling contraband or was an illegal immigrant based on the
following facts: defendant’s vehicle slowed significantly upon seeing the agent’s
vehicle; when the agent drove in the lane next to defendant and peered into defendant’s
vehicle, defendant acted nervously; defendant was driving on Interstate 5, which is
frequently used by smugglers; and defendant’s vehicle had entered Mexico three days
earlier and had been sent to secondary inspection because the driver (not defendant) had a
prior drug possession offense, though no contraband was found in the vehicle. After
pulling defendant’s vehicle over, defendant consented to a search of the vehicle, which
turned up 47 pounds of methamphetamine. Defendant moved to suppress all evidence
found in the search, arguing the agent had no reasonable suspicion to detain defendant.
The court denied the motion.
              Defendant pleaded guilty to one count of possession of a controlled
substance for sale (Health & Saf. Code, § 11378; count 1), one count of sale or
transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count
2), and admitted an enhancement pursuant to Health & Safety Code section 11370.4,
subdivision (b)(4), that the substance in the charged offenses exceeded 20 kilograms by
weight. He was sentenced to the low term of two years in the Orange County Jail on
count 2, and 15 consecutive years on the enhancement. The court divided the sentence
pursuant to Penal Code section 1170, subdivision (h)(5), requiring only five years of
incarceration followed by 12 years of mandatory supervision.
              Defendant appealed, contending the court erred in denying the suppression
motion. The parties agree the consent was valid only to the extent the initial detention
was valid. We conclude the agent did not have reasonable suspicion to detain defendant.
Accordingly, we reverse the judgment.




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                                           FACTS


              At the outset of the hearing on the suppression motion, the parties
stipulated that defendant “was stopped, and that there was no search or arrest warrant in
this case . . . .” The only witness at the hearing was United States Border Patrol (Border
Patrol) Agent Edgar Sandoval.
              Agent Sandoval is a K-9 handler for the Border Patrol and the United States
Customs Border Protection who operates out of San Diego. He had served as a Border
Patrol agent for approximately 14 years.
              On September 25, 2013, Agent Sandoval was working in the area around
San Clemente and Camp Pendleton on Interstate 5. Agent Sandoval described the “I-5
corridor” as “a major artery” for smuggling. “It is one of the major arter[ies] that leads
from the United States-Mexico border to the interior of the United States. Through
intelligence and through other means that are gained on the field, and, you know, through
other agencies, it’s known that smugglers traffic that route, take that route to further their
narcotics, or whatever contraband they’re taking, into the interior of the United States.”
He had made several previous arrests for drug smuggling in that corridor.
              At approximately 11:00 a.m., Agent Sandoval had been assisting another
agent with a vehicle inspection. As he was leaving the shoulder heading northbound, he
had on his rear emergency lights, and was going slow in the number four lane so that he
could see vehicles passing him. Although he was driving an unmarked Ford F-150, his
rear emergency lights were red and blue “wig-wags” that make it obvious the vehicle is a
law enforcement vehicle.
              A blue GMC Suburban passed him in the number one lane and caught his
attention because it slowed abruptly. He pulled alongside it and paced it at 50 miles per
hour, which is below the speed limit. This caught Agent Sandoval’s attention because it
was “[n]ervous behavior. It’s commonly seen overcompensation for following the law to

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try to avoid attention by law enforcement personnel.” At that point Agent Sandoval
testified: “I want[ed] to make [it] evident . . . that I was looking at him or her. So I
lowered my window, and I was wearing . . . a police vest [and] a radio that goes over my
shoulder so it’s very obvious . . . that I’m law enforcement personnel, . . . and I wanted to
see his reaction to the fact I was looking at him, that he caught my attention.” Defendant
was driving the Suburban.
              When defendant noticed Agent Sandoval looking at him, his posture
became rigid, he changed his hand position on the wheel, and was generally tense. This
reaction was consistent with what Agent Sandoval had seen from drug smugglers in the
past. Also, defendant’s tense posture combined with the vehicle’s slow rate of speed
concerned Agent Sandoval because “[t]hose are indicators . . . something could be wrong,
something could be wrong with the vehicle, or something else was wrong. He was
obviously nervous about something so I wanted to find out what it was.”
              Agent Sandoval then slowed and pulled behind the suburban to run a record
check on the vehicle. Based on that search, Agent Sandoval discovered that the vehicle
had crossed the Mexico border approximately three days earlier. At the border check
point, the vehicle underwent a secondary inspection because the driver (not defendant)
had a previous arrest for possession of dangerous drugs. Agent Sandoval did not know
what the exact charge was. Nothing illegal was found in the vehicle.
              Agent Sandoval testified that after discovering that information: “I, once
again, pulled up next to him. And I made it very apparent that I was looking at him
again. At this time he did not look at my direction but he continued driving in the same
position that he was prior. He began to fidget with his glasses, and — he adjusted his
glasses the same way throughout the time that I was following him, I would say
approximately eight to nine times. And I recalled he had a coffee cup in the holder,
which he would fix his glasses, grab the coffee, drink the coffee, put the coffee down.
And he continued doing that straight, repetitive the whole time I was next to him.” At

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that point Agent Sandoval “felt that [he] wanted to effect a vehicle stop to conduct
inspection of the vehicle. Or the subjects in the vehicle — subject in the vehicle.” On
cross-examination he clarified, “I believe there was illegal [activity] actively being
conducted that’s why I made the stop. I was unsure of what was going on, but I believe
there was illegal activity taking place; had to be illegal immigration or smuggling.” So
he pulled defendant’s vehicle over.
              Agent Sandoval made contact with defendant and initially ran an
immigration inspection on him. Defendant had a “B1 B2 Visa . . . , which is . . . a
visitor’s passport.” Agent Sandoval asked defendant where he was going; defendant
responded, “It’s my friend’s car.” “I once again asked him where he was going, and he
hesitated. He was initially thinking, he was very, very nervous, avoiding eye contact, and
he told me he was going to the outlets.” Agent Sandoval asked where the outlets were;
defendant said San Juan Capistrano. Agent Sandoval was not familiar with any outlets in
San Juan Capistrano. Agent Sandoval asked if defendant had currency for the outlets;
defendant replied he did not but was going to pay with a card. Agent Sandoval asked if
he had any narcotics or anything illegal; defendant replied he did not. “Then I asked him
for consent to search the vehicle which he granted.” Agent Sandoval also asked
permission to use his dog, which defendant granted.
              Agent Sandoval then sent his dog into the vehicle and it “was in alert the
entire time. It appeared to be a lot of odor in the vehicle.” “And he came to stop in the
rear of the vehicle.” “We opened the back doors of the suburban and a fellow agent
noticed immediately this looks bul[k]y.” The agents picked up the material and
discovered a bundle that contained methamphetamine. They found a total of
approximately 47 and one-half pounds of methamphetamine.
              After Agent Sandoval’s testimony, the court denied defendant’s motion to
suppress the evidence found as a result of the search: “The court does look at all of the
factors in their totality. The fact that the abrupt sudden slow down of the vehicle

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occurred after passing an unmarked vehicle with police lights, that the speed was slower
than the speed of traffic, the repetitive nature of the adjusting the glasses and drinking the
coffee, which appears to be a pronounced display of behavior that could be consistent
with nervous behavior, coupled with the location of the driving, coupled with the fact that
the vehicle is known to have crossed the border three days prior with an individual that
was driving that had the prior drug activity, along with the location of the I-5 corridor, the
statement — leaves the court to believe there was specific articulable facts to justify the
detention.” The court went on to find that consent to search the vehicle was properly
obtained.


                                       DISCUSSION


              Defendant contends the court erred in denying his motion to suppress
evidence obtained from the search of the vehicle. A defendant is permitted to appeal a
court’s ruling on a suppression motion notwithstanding a subsequent guilty plea: “A
defendant may seek further review of the validity of a search or seizure on appeal from a
conviction in a criminal case notwithstanding the fact that the judgment of conviction is
predicated upon a plea of guilty. Review on appeal may be obtained by the defendant
provided that at some stage of the proceedings prior to conviction he or she has moved
for the return of property or the suppression of the evidence.” (Pen. Code, § 1538.5,
subd. (m).)
              “A warrantless search is presumed to be unreasonable, and the prosecution
bears the burden of demonstrating a legal justification for the search. [Citation.] ‘The
standard of appellate review of a trial court’s ruling on a motion to suppress is well
established. We defer to the trial court’s factual findings, express or implied, where
supported by substantial evidence. In determining whether, on the facts so found, the



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search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment.’” (People v. Redd (2010) 48 Cal.4th 691, 719.)
              “In California, issues relating to the suppression of evidence derived from
governmental searches and seizures are reviewed under federal constitutional standards.”
(People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8.) “The Fourth Amendment
protects against unreasonable searches and seizures. [Citations.] ‘A detention is
reasonable under the Fourth Amendment when the detaining officer can point to specific
articulable facts that, considered in light of the totality of the circumstances, provide
some objective manifestation that the person detained may be involved in criminal
activity.’ [Citation.] Ordinary traffic stops are treated as investigatory detentions for
which the officer must be able to articulate specific facts justifying the suspicion that a
crime is being committed.” (People v. Hernandez (2008) 45 Cal.4th 295, 299.)
“[O]fficers are not entitled to rely on mere hunches.” (Ibid.) However, officers may
“draw on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that ‘might well elude an
untrained person.’” (United States v. Arvizu (2002) 534 U.S. 266, 273.) “Although an
officer’s reliance on a mere ‘“hunch”’ is insufficient to justify a stop, [citation], the
likelihood of criminal activity need not rise to the level required for probable cause, and it
falls considerably short of satisfying a preponderance of the evidence standard [citation].”
(Id. at p. 274.) “[A] subjective suspicion is not required. The reasonable suspicion
necessary to justify a detention is measured solely by an objective standard.” (People v.
Lloyd (1992) 4 Cal.App.4th 724, 733.)
              Defendant contends that his consent to Agent Sandoval searching the
vehicle was valid only if the initial detention was valid; the People do not dispute the
point. Indeed, as our high court has said, “Where, as here, the prosecution relies on
consent to justify a warrantless search or seizure, it bears the ‘burden of proving that the
defendant’s manifestation of consent was the product of his free will and not a mere

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submission to an express or implied assertion of authority. [Citation.]’ [Citation.]
Consent that is the product of an illegal detention is not voluntary and is ineffective to
justify a search or seizure. [Citations.] Where an illegal detention occurs, unless
‘subsequent events adequately dispel the coercive taint of the initial illegality, i.e., where
there is no longer causality, the subsequent consent is’ ineffective.” (People v. Zamudio
(2008) 43 Cal.4th 327, 341.) The People do not contend that, assuming the detention was
illegal, the taint of that illegality was subsequently dispelled. Rather, the People simply
contend the initial detention was legal.
               Agent Sandoval essentially relied upon three articulable facts in detaining
defendant. First, defendant was nervous around a law enforcement officer. The abrupt
slowing, the changed posture, the fidgety behavior, all demonstrated that defendant was
nervous. Second, the vehicle was driving along Interstate 5, which drug smugglers
frequently use to smuggle drugs into the United States. Third, the car had previously
been stopped and searched at the border, with nothing being found, although the driver
had some form of drug possession arrest on his record. Notably, Agent Sandoval did not
state he detained defendant for a traffic violation, and the People do not argue that a
traffic violation justified the detention.
               It has been repeatedly held that nervous behavior, by itself, does not give
rise to reasonable suspicion that crime is afoot. “Nervousness in the presence of a police
officer does not furnish a reasonable basis for a detention . . . . [Citation.] As [the
California Supreme Court] has observed, ‘[t]o hold that police officers should in the
proper discharge of their duties detain and question . . . all those who act nervous at the
approach of officers would for practical purposes involve an abrogation of the rule
requiring substantial circumstances to justify the detention and questioning of persons on
the street.’” (People v. Loewen (1983) 35 Cal.3d 117, 125.) Agent Sandoval’s conduct
here — pulling alongside defendant’s vehicle twice and glaring at him — would make
most people nervous. “Failure to meet the border agent’s gaze, and kneading of the

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steering wheel, even if indicative of nervousness, does not provide a sufficient reason to
suspect defendant was in the country illegally or doing anything else illegal. [Citation.]
Anyone — undocumented aliens, legal resident aliens, or citizens alike — could easily be
apprehensive of a series of forced encounters with uniformed authority figures.” (People
v. Valenzuela (1994) 28 Cal.App.4th 817, 828.) As another court noted, “it is a common,
if not universal, practice for drivers and passengers alike to take note of a law
enforcement vehicle coming up behind them. In fact, the most law-abiding of citizens
frequently adjust their driving accordingly.” (United States v. Montero-Camargo (9th
Cir. 2000) 208 F.3d 1122, 1136.)
              On the other hand, nervousness can be a contributing factor in combination
with other circumstances to support reasonable suspicion. For example, in People v.
Letner and Tobin (2010) 50 Cal.4th 99 (Letner), the court held that nervous behavior,
such as the slow driving involved here, was relevant. In Letner the defendants were
pulled over based on the following facts: “When Officer Wightman first observed the
Ford Fairmont at the intersection of Main and Garden Streets, its exterior, unlike other
cars traveling in the area, was beaded with water, although it had stopped raining hours
before. A reasonable officer could suspect from this circumstance that the car had been
parked nearby until fairly recently. Officer Wightman knew that in the immediate area
were a number of car dealerships that had reported vehicle tamperings, burglaries, and
thefts in the preceding months. Indeed, the Ford dealership adjacent to that intersection
had reported the theft of a vehicle approximately one week earlier. It was midnight on a
Tuesday night, when relatively few persons are working or otherwise away from home
and hence when vehicle thefts from a car dealership more readily might be committed.
Officer Wightman, following the Fairmont in his marked patrol car, observed that after
the vehicle entered the highway (at that point a freeway), it accelerated to a speed of only
40 miles per hour, well below the speed limit, and traveled at that speed for
approximately one mile, that is, for more than one minute. In these circumstances, a

                                              9
reasonable officer might suspect the driver of the car was attempting to avoid contact
with the police.” (Id. at p. 147) In support of that conclusion, the Letner court quoted
federal decisions for propositions such as, “‘noticeable deceleration in the presence of a
patrol car can contribute to reasonable suspicion, even though drivers often slow when
they see law enforcement personnel’” (id. at p. 219), and “‘maintaining a noticeably slow
speed in the presence of a police officer may suggest nervousness . . . .’” (Id. at p. 220;
but see U.S. v. Hernandez-Alvarado (9th Cir. 1989) 891 F.2d 1414, 1419 [“[M]any law-
abiding motorists have two-way antennas installed on their cars, live near the Mexican
border, and reduce their speed on the freeway when being followed by a law enforcement
vehicle. Thus, these facts in combination do not constitute reasonable suspicion”].)
              The question, then, is what is the something extra in addition to nervous
behavior that created reasonable suspicion here? The People rely on two factors:
defendant’s presence on Interstate 5, and the fact that the vehicle had crossed the border
three days before. We conclude neither circumstance carries significant weight.
              To be sure, courts have held that a person’s presence in a high crime area is
a significant factor in a reasonable-suspicion analysis. “An area’s reputation for criminal
activity is an appropriate consideration in assessing whether an investigative detention is
reasonable under the Fourth Amendment.” (People v. Souza (1994) 9 Cal.4th 224, 240.)
This factor, however, has traditionally been treated with caution: “It has been repeatedly
held that the fact that the detainee happens to find himself or herself in a high-crime
neighborhood is, of itself, insufficient to support a reasonable suspicion for a peace
officer to stop that person.” (People v. Walker (2012) 210 Cal.App.4th 1372, 1391.)
“The ‘high crime area’ factor is not an ‘activity’ of an individual. Many citizens of this
state are forced to live in areas that have ‘high crime’ rates or they come to these areas to
shop, work, play, transact business, or visit relatives or friends. The spectrum of
legitimate human behavior occurs every day in so-called high crime areas. As a result,
[the California Supreme Court] has appraised this factor with caution and has been

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reluctant to conclude that a location’s crime rate transforms otherwise innocent-appearing
circumstances into circumstances justifying the seizure of an individual.” (People v.
Bower (1979) 24 Cal.3d 638, 645, superseded by statute on other grounds as stated in
People v. Lloyd, supra, 4 Cal.App.4th 724, 733.)
              There is no evidence here that Interstate 5 near San Clemente is a high
crime area. There was no evidence, for example, that drivers on Interstate 5 are more
likely to be involved in criminal activity than on other freeways. There was testimony
that drug smugglers frequently use Interstate 5 to transport drugs. But Interstate 5 is not
exactly a back alley — many people drive Interstate 5 near San Clemente every day, and
presumably the vast majority of them do so for lawful purposes. Defendant’s presence
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on Interstate 5, therefore, did not contribute to reasonable suspicion that crime was afoot.
              The second plus-factor the People suggest is that defendant’s vehicle had
crossed the Mexico border three days earlier and the vehicle had been searched because
the driver had some form of drug possession arrest on his record. But, although the
vehicle crossed the border and was searched, no contraband was found. That fact tends
to negate reasonable suspicion rather than support it. Further, the parties have not cited,
nor have we found, any case holding that a recent legal border crossing is a factor
contributing to reasonable suspicion that crime is afoot. We are not prepared to hold that
every nervous driver who recently crossed the border is subject to warrantless detentions.


1
              Defendant filed a request for judicial notice (and the People filed
opposition) requesting that this court take judicial notice that “in 2013, between 199,500
and 219,000 vehicles traveled on average on the northbound I-5 freeway at Avenida Pico
in San Clemente, California each day.” We deny that portion of the motion because the
source materials defendant provided do not appear to be relevant to that alleged fact (it
appears defense counsel included the wrong pages). However, we accept as common
knowledge that Interstate 5 in that area sees high daily vehicle traffic. Defendant also
requested we take judicial notice that “the distance between Avenida Pico in San
Clemente, California, and the international border at San Ysidro, California, is
approximately 75 miles.” We grant the motion as to that fact.

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              Nor is reasonable suspicion created by the fact that a prior driver of the
vehicle had an unspecified drug possession arrest (not conviction) at an unspecified time
in the past. Reasonable suspicion is judged by an objective standard, and thus any
subjective mistake Agent Sandoval may have made about defendant being the one with
the prior arrest is irrelevant. Moreover, the scant information Agent Sandoval had about
the prior arrest was not suggestive that crime was afoot when defendant was detained. If,
for example, the driver had a prior drug smuggling conviction, or other specific
intelligence had connected the driver with smuggling, this may have supported
reasonable suspicion. But given the dearth of information available to Agent Sandoval,
the driver’s record did not support reasonable suspicion.
              Agent Sandoval did not have reasonable suspicion to detain defendant. He
had a hunch. His hunch turned out to be correct, but the law is clear that “officers are not
entitled to rely on mere hunches.” (People v. Hernandez, supra, 45 Cal.4th at p. 299.)
Accordingly, the court erred in denying defendant’s motion to suppress.


                                      DISPOSITION


              The judgment is reversed.


                                                  IKOLA, J.

WE CONCUR:



ARONSON, ACTING P. J.



THOMPSON, J.



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