United States v. Miguel Garibay

FILED
NOT FOR PUBLICATION DEC 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50378
Plaintiff - Appellee, D.C. No. 3:10-cr-02690-MMA-2
v.
MEMORANDUM *
MIGUEL ANGEL GARIBAY,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted December 5, 2012 **
Pasadena, California
Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.
Miguel Angel Garibay appeals his conviction following a conditional guilty
plea to charges related to possession of methamphetamine with the intent to
distribute, in violation of 21 U.S.C. § 841. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The Border Patrol Agents’ decision to detain Garibay was supported by
reasonable suspicion to believe that Garibay was engaged in criminal activity. See
United States v. Arvizu, 534 U.S. 266 (2002). Agent Ballow, whom the district
court found credible, testified that he relied on the following factors in deciding to
approach and stop Garibay: (1) the presence of Garibay’s vehicle in an area known
for drug smuggling, near the border, and at a gas station located at the last exit
before a Border Patrol checkpoint; (2) the vehicle’s clean and empty appearance,
with Mexican license plates; (3) the information from the records check, which
included numerous instances of the vehicle entering the United States and being
sent to secondary inspection, and at least once due to the nervous behavior of its
driver; (4) Garibay’s attempt to pay for an energy drink with a $100 bill and not
possessing any smaller bills; (5) Garibay’s answer of “no” to the question of
whether Garibay or the car had entered the United States recently; and (6) the
inconsistency between Garibay’s name and the name of the individual who had
driven the vehicle across the border hours earlier. These factors gave rise to a
reasonable suspicion to detain Garibay. United States v. Berber-Tinoco, 510 F.3d
1083, 1087 (9th Cir. 2007).
Further, Garibay’s 23 minute detention was not impermissibly long. The
Agents acted sufficiently diligently in searching Garibay’s vehicle to comply with
2
the Fourth Amendment. See United States v. Villasenor, 608 F.3d 467 (9th Cir.
2010) (45 minute wait for drug detection dog acceptable).
Finally, Garibay’s detention did not ripen into an arrest. Garibay was
detained for a short period of time and was free to sit in or stand by the car
throughout the detention. See United States v. Rousseau, 257 F.3d 925, 929 (9th
Cir. 2001) (evaluating length and intrusiveness of stop to determine whether it has
ripened into an arrest). We note that Garibay does not challenge the search of his
vehicle.
AFFIRMED.
3