United States v. Salvador Vasquez ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50275
Plaintiff-Appellee, D.C. No.
2:18-cr-00247-DOC-1
v.
SALVADOR VASQUEZ, AKA Clumsy, MEMORANDUM*
AKA Junior, AKA Lilone, AKA Vasquez
Salvador, AKA Vaszquez Salvador, AKA
Vazquez Salvador, AKA Clumsy Vasquez,
AKA Junior Vasquez, AKA Lil One
Vasquez, AKA Lilone Vasquez, AKA
Salvador Vazquez,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted May 14, 2021**
Pasadena, California
Before: R. NELSON and LEE, Circuit Judges, and STEIN,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sidney H. Stein, United States District Judge for the
Southern District of New York, sitting by designation.
Defendant Salvador Vasquez appeals the denial of his motion to suppress
evidence and statements following his conditional guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). He argues that officers
did not have reasonable suspicion to stop his vehicle, lacked probable cause to search
the vehicle, and did not read him Miranda warnings prior to questioning him. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review the district court’s reasonable suspicion and probable cause
determinations de novo, “reviewing findings of historical fact for clear error and
giving due weight to inferences drawn from those facts by resident judges and local
law enforcement officers.” United States v. Valdes-Vega, 738 F.3d 1074, 1077 (9th
Cir. 2013) (en banc) (cleaned up). And when reviewing factual findings for clear
error, we affirm unless the findings are “illogical, implausible, or without support in
the record.” United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010).
1. The officers had reasonable suspicion for the traffic stop based on a
possible violation of California Vehicle Code § 22502. See United States v. Lopez-
Soto, 205 F.3d 1101, 1104–05 (9th Cir. 2000) (holding that only reasonable
suspicion is required for a traffic stop). Section 22502 provides that vehicles stopped
on a roadway “shall be stopped or parked with the right-hand wheels of the vehicle
parallel to, and within 18 inches of, the right-hand curb.” Cal. Veh. Code § 22502(a).
It also states that vehicles may not “stop or park upon a roadway in a direction
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opposite to that in which traffic normally moves.” Id. § 22502(b)(2).
Several factors supported the officers’ reasonable suspicion to stop the van.
Photographs show that the van was protruding out into the road, did not have its
wheels adjacent to the curb, and had its front end angled towards oncoming traffic.
A gate blocked the van from pulling any further off the road, so it continued to
obstruct traffic. The officers observed the van for twenty to thirty seconds but never
saw anyone try to open the gate or reposition the van. Based on these factors, the
officers believed that a violation of § 22502 had occurred, and they initiated a stop
to warn or cite the driver. Considering the totality of the circumstances, the district
court did not clearly err in finding that the van was obstructing the roadway, and that
thus there was reasonable suspicion to support the traffic stop. See Valdes-Vega,
738 F.3d at 1077–78.
2. The officers had probable cause to search the van based on “the totality of
the circumstances known to [them] at the time of the search.” United States v. Ped,
943 F.3d 427, 431 (9th Cir. 2019) (cleaned up). Probable cause exists “where the
known facts and circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime will be found.” Ornelas
v. United States, 517 U.S. 690, 696 (1996) (citations omitted). Here, the district
court’s finding that the officers smelled burnt marijuana, combined with other
factors, supports probable cause for the vehicle search.
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First, the district court’s finding that the officers smelled burnt marijuana was
not “illogical, implausible, or without support in the record.” Spangle, 626 F.3d at
497. Rather, it was based on an assessment of the witnesses’ credibility — to which
this court gives deference, see United States v. Bontemps, 977 F.3d 909, 917 (9th
Cir. 2020) — and corroborating evidence. The officers consistently reported
smelling a strong odor of burnt marijuana emanating from the van. Evidence found
during the search of the van corroborates the officers’ testimony. This included 20-
30 vape pens, a text regarding marijuana vape cartridges, a vape charger, and $6,680
in cash that suggested possible drug transactions. The female passengers also
reported that another passenger had been vaping earlier that day. The district court
considered the defense’s opposing testimony but rejected it as “false” due to various
inconsistencies. Considering the evidence as a whole, the district court did not
clearly err in finding that the officers smelled burnt marijuana.
Second, Vasquez argues that, even if officers smelled burnt marijuana, that
cannot support probable cause due to California’s Proposition 64, which legalizes
some marijuana use. See Cal. Health & Safety Code § 11362.1(a)(1). It is true that
the smell of marijuana alone no longer provides a basis for probable cause. See
People v. Johnson, 50 Cal. App. 5th 620, 634 (Cal. Ct. App. 2020). But, when
combined with other factors, the smell of marijuana may still support probable cause
that a vehicle contains evidence of marijuana activity that remains unlawful under
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California law. 1 See, e.g., Cal. Veh. Code § 23152(f) (stating that it is unlawful to
drive under the influence of any drug); Cal. Health & Safety Code § 11054(d)(13)
(classifying marijuana as a controlled substance). Driving under the influence of
marijuana is a misdemeanor in California, see Cal. Veh. Code § 23536, and thus an
officer’s reasonable belief that a vehicle contains evidence of that offense will
support probable cause for a warrantless search, see Ornelas, 517 U.S. at 696.2
Here, several factors supported probable cause. The officers smelled burnt
marijuana coming from the van; the van was stopped in front of a building known
to be controlled by a gang, in an area known for drug use and drug trafficking; the
van was only partially pulled into a driveway, with its headlights and taillights on,
and all four occupants still inside; and the people surrounding the van dispersed
when the officers approached. From these facts, it was reasonable for the officers to
infer that a violation of California’s marijuana laws might have taken place, and that
evidence of such a violation would be found in the van. See United States v. Scott,
1
The government did not waive its argument on this issue, as it presented the
argument to the district court in its opposition to Vasquez’s motion to suppress. See
United States v. Scott, 705 F.3d 410, 415 (9th Cir. 2012).
2
Vasquez argues that an infraction, such as possessing an open container of
marijuana in a moving vehicle, see Cal Veh. Code § 23222, cannot support a
warrantless search under the automobile exception. We need not address this
argument, as driving under the influence of marijuana is a misdemeanor rather than
a civil infraction.
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705 F.3d 410, 417 (9th Cir. 2012). The van’s position suggested that it had recently
been in transit, and the smell of burnt — rather than fresh — marijuana supports an
inference that Vasquez may have been driving under the influence of marijuana.
Thus, under the totality of the circumstances, probable cause supported the search
of the van.
3. The district court did not clearly err in finding that Vasquez received
Miranda warnings prior to being questioned about the gun found in the van. The
district court specifically noted that this issue came “down to credibility,” and when
credibility is at issue, “we give special deference to the district court[] . . . and
generally cannot substitute our own judgment of the credibility of a witness for that
of the fact-finder.” Bontemps, 977 F.3d at 917 (cleaned up).
Vasquez and the officers dispute whether Miranda warnings were given, and
the only evidence before the district court was the testimony and declarations
presented at the suppression hearing. The officers testified, consistent with their
reports, that they read Vasquez and his companions Miranda warnings from a
department-issued card, whereas Vasquez and the van’s other occupants denied
receiving such warnings. The district court noted numerous inconsistencies and
implausible statements in the testimony of Karma Benward — the defense’s main
witness. Similar issues were not present in the officers’ statements; faced with
opposing accounts of the incident, the district court credited the officers’ testimony.
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Given the concerns about Benward’s testimony and the lack of evidence
contradicting the officers’ accounts, the district court did not clearly err in finding
that Miranda warnings were given.
AFFIRMED.
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