United States v. Alverez-Tejeda ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant, No. 06-30289
v.
 D.C. No.
CR-05-00126-RHW
ASCENSION ALVEREZ-TEJEDA, aka;
Chombi, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Argued and Submitted
April 9, 2007—Seattle, Washington
Filed June 8, 2007
Before: Alex Kozinski, Raymond C. Fisher and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Kozinski;
Concurrence by Judge Fisher
7061
UNITED STATES v. ALVEREZ-TEJEDA 7063
COUNSEL
James A. McDevitt, United States Attorney, and Russell E.
Smoot, Assistant United States Attorney, Spokane, Washing-
ton, for the plaintiff-appellant.
7064 UNITED STATES v. ALVEREZ-TEJEDA
James E. Egan, Kennewick, Washington, for the defendant-
appellee.
OPINION
KOZINSKI, Circuit Judge:
We consider the Fourth Amendment’s limits on the use of
trickery and force in conducting seizures.
Facts
Ascension Alverez-Tejeda and his girlfriend drove up to a
traffic light. As the light turned green, the car in front of them
lurched forward, then stalled. Alverez-Tejeda managed to
stop in time, but the truck behind him tapped his bumper. As
Alverez-Tejeda got out to inspect the damage, two officers
pulled up in a police cruiser and arrested the truck driver for
drunk driving. The officers got Alverez-Tejeda and his girl-
friend to drive to a nearby parking lot, leave the keys in the
car and get into the cruiser for processing. Just then, out of
nowhere, someone snuck into their car and drove off with it.
As the couple stood by in shock, the police jumped into their
cruiser and chased after the car thief with sirens blaring. The
police then returned to the parking lot, told the couple that the
thief had gotten away and dropped them off at a local hotel.
The whole incident was staged. DEA agents learned that
one of the leaders of a drug conspiracy was dealing drugs out
of his car and deduced from several intercepted calls and
direct surveillance that Alverez-Tejeda, one of the conspira-
cy’s subordinates, was using the leader’s car to transport illicit
drugs. The agents decided to stage an accident/theft/chase in
order to seize the drugs without tipping off the conspirators.
Every character in the incident, other than Alverez-Tejeda and
his girlfriend, was either a DEA agent or a cooperating police
officer.
UNITED STATES v. ALVEREZ-TEJEDA 7065
Having seized the car through this ruse, the agents obtained
a search warrant and discovered cocaine and methamphet-
amine inside, as well as property belonging to Alverez-Tejeda
and his girlfriend. The government indicted Alverez-Tejeda
but the district court found that the method of seizure violated
the Fourth Amendment and suppressed the evidence obtained
from the vehicle. The government filed an interlocutory
appeal. See 18 U.S.C. § 3731.
Analysis
[1] The parties agree that the DEA agents had the right to
seize the car without a warrant: “If agents have probable
cause to believe that a car is or has been used for carrying
contraband, they may summarily seize it pursuant to the fed-
eral forfeiture statutes.” United States v. Johnson, 572 F.2d
227, 234 (9th Cir. 1978) (internal quotation marks omitted);
see also Florida v. White, 526 U.S. 559, 561 (1999) (police
may administratively seize a car without a warrant). The
agents had probable cause to believe that the car had been
“used for carrying contraband” because they had purchased
drugs from inside it as part of their investigation. They also
had probable cause to believe the car was carrying contraband
on the day of the seizure based on several intercepted phone
calls and direct surveillance. The only issue in doubt is
whether their unorthodox method of seizing the car was con-
stitutional.
[2] An otherwise lawful seizure can violate the Fourth
Amendment if it is executed in an unreasonable manner. See
United States v. Jacobsen, 466 U.S. 109, 124 (1984). “To
assess the reasonableness of th[e] conduct, [a court] must bal-
ance the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.” Id. at
125 (internal quotation marks omitted). While agents have
discretion to decide “how best to proceed” in conducting a
covert operation, they must abide by the “general” protections
7066 UNITED STATES v. ALVEREZ-TEJEDA
of the Fourth Amendment. Dalia v. United States, 441 U.S.
238, 257 (1979).
[3] The benchmark for the Fourth Amendment is reason-
ableness, which requires us to weigh the government’s justifi-
cation for its actions against the intrusion into the defendant’s
interests. Jacobsen, 466 U.S. at 125. The government here
certainly had important reasons for employing this unusual
procedure in seizing the car. First, the agents wanted to stop
the drugs before they reached their ultimate destination—a
patently important goal. Second, they wanted to protect the
anonymity of the ongoing investigation—another vital objec-
tive. The Supreme Court has emphasized “the necessity for
some undercover police activity,” Lewis v. United States, 385
U.S. 206, 208—09 (1966), and explained that “[a]rtifice and
stratagem may be employed to catch those engaged in crimi-
nal enterprises[;] . . . to reveal the criminal design; [or] to
expose the illicit traffic, . . . the illegal conspiracy, or other
offenses,” id. at 209 n.5 (quoting Sorrells v. United States,
287 U.S. 435, 441—42 (1932)) (first alteration in original).
Protecting the secrecy of an ongoing investigation is a well-
recognized consideration in the administrative seizure pro-
cess. See 18 U.S.C. § 983(a)(1)(D)(v) (providing for an exten-
sion not to exceed 60 days for notifying interested parties
where more prompt notice would “seriously jeopardiz[e] an
investigation”).
[4] At the same time, the intrusion into Alverez-Tejeda’s
Fourth Amendment interests was relatively mild. First,
Alverez-Tejeda argues that the agents were unreasonable in
using force to seize the car. While the police may not use
excessive force in conducting a search or seizure, see, e.g.,
Winterrowd v. Nelson, 480 F.3d 1181, 1184, 1186 (9th Cir.
2007), the force here was minimal. The district court found
that the agent in the truck bumped the stationary car with
“enough force . . . so that the tap was felt by Defendant to the
extent that it caused him to get out of his car and examine his
bumper” (emphasis added), but the truck was moving at only
UNITED STATES v. ALVEREZ-TEJEDA 7067
1 to 2 miles per hour and the tap caused no harm to the couple
and left no scratch on the car. A tap is a use of force, to be
sure, but it is hardly excessive. The staged collision involved
just enough force to pull off the “drunk driver” ruse, without
causing physical injury to the suspects.
This would be a different case if the government’s tactics
created a serious risk of bodily injury or escalation of vio-
lence, which might well have outweighed the interest in pro-
tecting the investigation. The balance may well be different if
the police simulated a car heist by running Alverez-Tejeda off
of the road or staged a car-jacking by holding him up at gun-
point. In this case, however, the use of force and potential for
physical harm were within reasonable bounds.
[5] Nor was there anything unreasonable in the agents’
choice of guile to seize the car, rather than taking it outright,
as they were entitled to do. While we don’t generally second-
guess the government’s use of stealth to ferret out criminal
activity, see Dalia, 441 U.S. at 257, we take a closer look
when agents identify themselves as government officials but
mislead suspects as to their purpose and authority. This is
because people “should be able to rely on [the] representa-
tions” of government officials. United States v. Bosse, 898
F.2d 113, 115 (9th Cir. 1990) (per curiam) (internal quotation
marks omitted). If people can’t trust the representations of
government officials, the phrase “I’m from the government
and I’m here to help” will become even more terrifying.
[6] This concern is at its zenith when government officials
lie in order to gain access to places and things they would oth-
erwise have no legal authority to reach. “We think it clearly
improper for a government agent to gain access to [property]
which would otherwise be unavailable to him by invoking the
private individual’s trust in his government . . . .” See id.
(internal quotation marks omitted) (emphasis added). This
consideration is not implicated by the agents’ actions here
because they already had the authority to seize the car and
7068 UNITED STATES v. ALVEREZ-TEJEDA
arrest Alverez-Tejeda; their lies didn’t have the effect of
expanding their ostensible authority beyond the scope of their
actual authority. The only consequence of their deceit was to
treat Alverez-Tejeda as a victim, rather than a criminal
suspect—driving him to a hotel rather than immediately drag-
ging him off to jail—and the only harm he suffered was being
misled and subjected to the fright that comes from being the
victim of a crime.1 We find that the agents’ actions in mis-
leading Alverez-Tejeda were reasonable in light of their vital
interest in seizing the drugs and not exposing their investiga-
tion.
[7] That the agents took some of Alverez-Tejeda’s property
that was in the car, including a camera, checkbook and cloth-
ing, didn’t make their actions unreasonable. They did return
the purse and cell phone, explaining that the thief had thrown
them out the window during the pursuit. Had they also
returned the rest of the property, they might have blown the
ruse. The delay in notifying Alverez-Tejeda that his property
had been seized, and giving him an opportunity to claim it,
was reasonable in light of the government’s important objec-
tive of protecting the secrecy of its investigation. See 18
U.S.C. § 983(a)(1)(D)(v).
[8] Finally, Alverez-Tejeda claims that the agents scared
his girlfriend, searched her in an overly invasive manner and
engaged in a potentially dangerous mock pursuit after taking
the car. While Alverez-Tejeda doesn’t argue that he has stand-
ing to assert the Fourth Amendment rights of his girlfriend or
the drivers on the road, we have speculated that “in extreme
cases where there is no apparent justification for oppressive
conduct,” a search that is “outrageous” or “shocking” in its
intrusion on third parties’ rights could be unconstitutional. See
United States v. Offices Known as 50 State Distrib. Co., 708
1
Doubtless, Alverez-Tejeda was more frightened about the fact that he
lost the boss’s car with the stash of drugs in it, but that fear arose from
the lawful seizure of the car, not the deceit.
UNITED STATES v. ALVEREZ-TEJEDA 7069
F.2d 1371, 1376 (9th Cir. 1983) (internal quotation marks and
citations omitted). Even if we were to accept this dictum,
nothing here comes close to satisfying this high standard. The
patdown of the girlfriend was a standard method of ensuring
officer safety, and there is no evidence that the mock car
chase endangered anyone.2
[9] In sum, we hold that the agents’ manner of executing
the seizure was constitutional.3
REVERSED and REMANDED.
FISHER, Circuit Judge, concurring:
I concur but also write separately to acknowledge the dis-
trict court’s concerns about the unorthodox manner in which
the seizure here was carried out. The staged collision, “theft”
of the car (and all of its contents), car chase and search of
Alverez-Tejeda’s apparently innocent companion had the
potential to spin out of control and exceed reasonable bounds.
Nonetheless, on the record before us I agree with my col-
leagues that the agents’ ruse stayed within bounds (even if
they pushed the envelope in some respects). Although we do
not sustain the district court’s thoughtful analysis, I do not
thereby mean to endorse this police action as a model for
future creative seizures.
2
For the same reasons, we decline Alverez-Tejeda’s request that we
order the district court to dismiss his indictment on the ground that the
government’s conduct was “so grossly shocking and so outrageous as to
violate the universal sense of justice.” See United States v. Barrera-
Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991) (internal quotation marks
omitted).
3
We thus have no occasion to consider whether exclusion of the evi-
dence would have been an appropriate remedy. See Hudson v. Michigan,
126 S. Ct. 2159, 2170 (2006) (unconstitutional manner of search or seizure
“does not necessarily trigger the exclusionary rule”).