PEOPLE v. OSCEGUERA (1988)

Following a jury trial, appellant Juan Lopez Osceguera was convicted of one count of robbery (Pen.Code, § 211) ¹ while personally using a firearm.  (§ 12022.5;  see also § 1203.06, subd. (a)(1).)   He was sentenced to a midterm of three years for the robbery, plus two years for the enhancement.   The court recommended that the five-year term be served in the California Youth Authority.  (Welf. & Inst.Code, § 1731.5, subd. (c).)

Appellant contends that his conviction must be reversed because (1) the border patrol officers who arrested him did not have a reasonably warranted suspicion that the vehicle in which he was riding contained aliens who were illegally in the country;  (2) a pretrial lineup was unduly suggestive;  and (3) state action deprived him of a material witness.   We disagree and therefore affirm the conviction.

I. FACTS

A. The Robbery

Except for the identity of the perpetrators, the facts surrounding the robbery are not in dispute.   Basically, at about 12:45 a.m. on March 6, 1986, Alvin Soper was working alone at an all-night service station in Cloverdale when two men entered the area in which the cash register was located.   One man carried a machete, which he held up to Soper's throat.   The other, later identified as appellant, was armed with a chrome revolver with a four- to six-inch barrel.   Referring to the cash register, they ordered Soper to “Open it.”   Soper complied.   The man with the machete lifted the till out of the cash register, and both men left the store.   The man with the gun backed out of the store while holding the gun pointed at Soper.

As soon as the two men departed, Soper called the Cloverdale police.   He said that each of the men appeared to be Mexican, and he described the man with the gun as about 20 years old, 5′7″ or 5′8″ in height, slender build, clean shaven, and wearing a green sweater over a blue shirt, blue jeans, and a camouflage-type cap.

B. The Stop

At approximately 5:30 p.m. the following day, March 7, 1986, appellant and two other men, Victor Manuel Barragan and Rafael Lopez Rallon, were stopped in their automobile by U.S. border patrol officers in southern Idaho on suspicion of being aliens illegally in this country.   Following their arrests on that charge, the three men were transported to a border patrol office.

At the border patrol office, one of the three men asked for clothing from the vehicle.   Responding to this request, the agents opened the trunk of the impounded vehicle to retrieve the clothing.   Inside, the officers observed the clothing and two long-rifle .22 shells.   Concerned that there might be weapons inside the trunk, one of the officers looked further and found a pistol, a machete, a .22 rifle with a broken stock, several rolls of coins, and some loose coins.   One of the rolls of coins had a Cloverdale, California address written on it.   Acting on a hunch, the border patrol agent called the Cloverdale Police Department and told them about the three men they had apprehended and the items the officers had found in the trunk.   The coins and other items in the car were linked to the Cloverdale robbery which had taken place the previous morning.

C.***

II. DISCUSSION

A. The Stop

Appellant first contends that his conviction must be reversed because the border patrol officers did not have a reasonably warranted suspicion that the vehicle in which he was riding contained aliens who were illegally in the country.

Preliminarily, the Attorney General asserts that appellant lacks standing to object to the evidence found in the vehicle trunk because the vehicle belonged to the driver, Rafael Rallon, and further, appellant denied ownership of anything in the trunk.   The Attorney General's procedural objection lacks merit.

 First, the issue of standing was not raised by the People in the trial court below.   The prosecution's failure to challenge appellant's standing in the trial court constitutes a waiver of this issue on appeal.  (People v. Lindsey (1986) 182 Cal.App.3d 772, 776–777, 227 Cal.Rptr. 550;  see Steagald v. United States (1981) 451 U.S. 204, 209, 101 S.Ct. 1642, 1646, 68 L.Ed.2d 38.)

 Second, the Attorney General misreads the thrust of appellant's contention.   The focus of appellant's argument is not the legality of the search of the trunk once the vehicle was impounded so much as the validity of the stop which preceded it.  “ ‘Regardless of whether defendant had a legitimate expectation of privacy in the contents of the automobile so as to challenge successfully the search thereof, as a passenger he can challenge the stopping of the vehicle since his personal liberty and freedom were intruded upon by that act.  [Citations]  The Fourth and Fourteenth Amendments of the U.S. Constitution forbid unreasonable searches and seizures, and it is clear that stopping an automobile and detaining its occupants constitutes a ‘seizure’ of those persons [Citations].  And, for the evidence seized as a result of that stop to be admissible, the stop must not have been unreasonable.'  (Italics in original.)”  (People v. Lionberger (1986) 185 Cal.App.3d Supp. 1, 5, 230 Cal.Rptr. 358, quoting People v. Kunath (1981) 99 Ill.App.3d 201, 54 Ill.Dec. 621, 425 N.E.2d 486.)   As appellant has standing to raise this issue, we turn to the merits.

In a series of cases during the past 15 years, the United States Supreme Court has set forth the standards governing the application of Fourth Amendment mandates to the enforcement of immigration laws.   Three categories of cases have been identified.

 First, at the borders or their functional equivalents (e.g., international airports), immigration agents need not have probable cause or reasonable suspicion in order to stop someone or to conduct a search.  (See Almeida–Sanchez v. United States (1973) 413 U.S. 266, 272–273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596.)

 Second, at permanent checkpoints, agents may make stops without probable cause or reasonable suspicion (United States v. Martinez–Fuerte (1976) 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116), but they must have probable cause in order to search (United States v. Ortiz (1975) 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623).

 Finally, there are cases involving roving patrols, in which immigration authorities may stop a vehicle if they reasonably suspect that the vehicle contains aliens who may be illegally in the country.  (United States v. Brignoni–Ponce (1975) 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607.)   Officers on roving patrol may search only on the basis of probable cause or consent.  (Almeida–Sanchez v. United States, supra, 413 U.S. at p. 273, 93 S.Ct. at p. 2539.)  Brignoni–Ponce provides the standards applicable in this case.

Before trial, a hearing was held on appellant's motion to suppress, challenging the initial vehicle stop.   U.S. border patrol agent David Offutt testified that the border patrol is the law enforcement arm of the Immigration and Naturalization Service within the Department of Justice.   Offutt had worked for the border patrol for nine and a half years, including three years in the Twin Falls, Idaho area.

 On March 7, 1986, Offutt and his partner, Agent Don Brinson, were on a roving patrol on a 45–mile stretch of Highway 93, running from north of Jackpot, Nevada to Twin Falls, Idaho.   That one stretch was known to Offutt as being “heavily used” by aliens travelling north in the springtime in search of farm work in Idaho.   Offutt estimated that his arrests of individuals determined to be illegal aliens on that road at that time of year was ‘in the hundreds.‘

At approximately 5:30 p.m. on that date, Offutt and Brinson were parked by the roadside when they observed a white 1965 Ford Falcon travelling north, bearing California license plates AOT 400.   Agent Offutt articulated several reasons why his attention was drawn to that car.  “The first was that it was occupied by three Hispanics;  second, it had out of State plates on it;  third, the vehicle is a profile car, it was an older car obviously in need of repair.”   He explained that in his experience in arresting illegal aliens, most were driving older model cars that could have been bought for a few hundred dollars as that was all they could afford.   In addition, Offutt considered the time of the year and the fact the car was travelling north.

The uniformed agents followed the Ford Falcon in their distinctively marked border patrol car.   While doing so, they noticed that the right front wheel of the Falcon was wobbling from side to side, causing the vehicle to weave.   They followed the car for three to four miles, during which time the vehicle appeared to slow down to approximately 30–35 miles per hour, despite being in a 55–mile per hour speed zone.   As they drew closer to the Falcon, Offutt noticed that its occupants “appeared to be nervous.   I call it the rabbit stare when they just stare straight ahead.   Everybody freezes.”

Based on all of the above information, the agents stopped the Falcon.   Appellant was one of the three persons inside.   Offutt testified that he asked one occupant if he was from Mexico, that person admitted to being in the United States illegally, and ultimately each of the occupants was placed under arrest for his illegal status.   The search of the trunk which revealed items linked to the Cloverdale robbery was conducted later, after the three were transported to the border patrol station in Twin Falls.

Congress has authorized officers and employees of the U.S. Immigration and Naturalization Service, without a warrant, “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States․” (8 U.S.C. § 1357(a)(1).)   Although one of the effects of the Supreme Court's decision in United States v. Brignoni–Ponce, supra, 422 U.S. 873, 95 S.Ct. 2574 was to limit the authority granted by that statute (id., at p. 884, 95 S.Ct. at p. 2582), the court recognized that “[t]here is no geographical limitation on this authority.”  (Id., at p. 877, 95 S.Ct. at p. 2578.)

In Brignoni–Ponce, the Supreme Court held that a roving patrol of the border patrol could not stop a vehicle near the Mexican border and question its occupants about their citizenship and immigration status, when the only ground for suspicion was that the occupants of the car appeared to be of Mexican ancestry.   In doing so, however, it set forth the rule that officers on roving patrol may stop vehicles “if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.”  (United States v. Brignoni–Ponce, supra, 422 U.S. at p. 884, 95 S.Ct. at p. 2582 fn. omitted.)

 In such circumstances, the officer may stop the car briefly and investigate the circumstances that provoke suspicion.   The officer may question the occupants about their citizenship and immigration status, and ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.  (United States v. Brignoni–Ponce, supra, 422 U.S. at pp. 881–882, 95 S.Ct. at 2580.)

The Supreme Court indicated that any number of factors may be considered.   These include the “characteristics of the area,” including its “proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic”;  the “driver's behavior,” such as “erratic driving or obvious attempts to evade officers”;  “the vehicle itself may justify suspicion”;  “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut”;  and such other factors as are meaningful to the officer “in light of his experience in detecting illegal entry and smuggling.”  (United States v. Brignoni–Ponce, supra, 422 U.S. at pp. 884–885, 95 S.Ct. at 2582.)   No single factor may justify the stop.  “Each case must turn on the totality of the particular circumstances.”  (Id., at p. 885, fn. 10, 95 S.Ct. at p. 2582, fn. 10.)

Citing a series of Fifth Circuit cases, appellant argues that a “vital element” of the Brignoni–Ponce standard is whether the agent had “reason to believe that the vehicle came from the border.”  (See, e.g., United States v. Lamas (5th Cir.1979) 608 F.2d 547, 549.)   That test has never been adopted within the Ninth Circuit, however.   In U.S. v. Magana (9th Cir.1986) 797 F.2d 777, for example, the Ninth Circuit found that a stop had been justified which took place on Interstate 5 north of Eugene, Oregon, some 1500 miles north of the Mexican border.   The court stated:  “Although Brignoni–Ponce does list several factors which may be taken into consideration in evaluating the officers' actions, [citation], the [Supreme] Court did not suggest that all these factors must be present or that other factors are irrelevant.”  (Id., at p. 780, emphasis in original.)   The test is whether the factors actually employed by the officers, under the totality of the circumstance, were sufficient to raise a reasonable suspicion for stopping the vehicle.  (Ibid.)

 The decisions of the lower federal courts, even on federal questions, are not binding on this court.  “However, they are persuasive and entitled to great weight.”  (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129.)   Although ordinarily, as between the decisions of the Ninth Circuit and that of the Fifth Circuit, no primacy inheres in the former (Debtor Reorganizers, Inc. v. State Bd. of Equalization (1976) 58 Cal.App.3d 691, 696, 130 Cal.Rptr. 64), in this case we must rule upon the propriety of federal activities conducted by federal agents within the geographical confines of the Ninth Circuit.   In this context, we defer to the rulings of the Ninth Circuit.

In the Ninth Circuit's Magana decision, the officers had relied on factors such as the characteristics of the vehicle, the fact that the occupants were all males of apparent Mexican ancestry, out-of-state license plates, the fact the driver turned away upon making eye contact with the agents, the fact the vehicle slowed down from 70 to 45 miles per hour when followed, and the fact that the vehicle was heading north on a main artery for the flow of aliens.  (U.S. v. Magana, supra, 797 F.2d at pp. 780–781.)   Looking to the totality of the circumstances articulated by Agent Offutt in this case, we conclude they are substantially similar to those relied on by the Ninth Circuit to justify the vehicle stop in Magana.   Those facts are sufficient to reasonably warrant suspicion that the Ford Falcon contained aliens who were illegally in the country.   As the stop was lawful, the evidence subsequently seized from the trunk of the car was admissible.

B.****

C. Deprivation of Material Witness

 Finally, appellant contends that state action deprived him of a material witness when the authorities released his co-arrestee, Victor Barragan, before his preliminary hearing, despite the fact that Barragan was known to the prosecution to be transient and illegally in the country.²  In support of his position, appellant relies on People v. Mejia (1976) 57 Cal.App.3d 574, 129 Cal.Rptr. 192 and Cordova v. Superior Court (1983) 148 Cal.App.3d 177, 195 Cal.Rptr. 758.

 To obtain relief under Mejia, a defendant must establish two elements:  first, that the unavailable witness was material;  and second, that the witness was made unavailable by state action.  (People v. Mejia, supra, 57 Cal.App.3d at p. 580, 129 Cal.Rptr. 192.)

At trial, appellant argued that Barragan was a material witness because “he could, if available, give evidence which would exonerate him.”   After holding an in camera hearing, the trial court agreed that Barragan was “definitely a material witness.”   The trial court nevertheless denied the motion because it did not believe the unavailability was caused by state action.

During a hearing on the motion to suppress, Stephany Joy, the deputy public defender who had represented appellant at his preliminary hearing, testified that she had received the case file four to five days before the preliminary hearing setting conference, scheduled for May 13, 1986.   On May 8 or 9, Joy called the prosecutor to discuss the case, including the status of charges against Barragan and Rallon.   During that conversation, Joy “was told that [the charge against] one person was going to be dismissed because that person had not been identified ․ [and] the other person had been deported;  therefore, there was nobody else in the case except [appellant].”

Joy testified further that she had appeared in court at the preliminary hearing setting conference on May 13 and, although appellant was there, neither codefendant appeared.   She recalled the prosecutor telling the court what she had been told a few days before, that the case against one defendant was being dismissed and that the other defendant had been deported.   Joy acknowledged that during the intervening period, she had done nothing to verify whether either codefendant had in fact been released from custody or had been deported.   She made no effort during that time to subpoena either person, nor was any effort made to arrange for a conditional examination.   It was stipulated at the hearing on the motion to suppress that neither codefendant was in fact released from the Sonoma County jail until 7:45 p.m. on May 13, 1986.

It is only where state action makes a material witness unavailable to the defense that dismissal is mandated by due process and defendant's constitutional right to a fair trial.  “The obligation of the People is to assure the preservation of the evidence and the opportunity for the defense to obtain the evidence.”  (Cordova v. Superior Court, supra, 148 Cal.App.3d at p. 185, 195 Cal.Rptr. 758, emphasis in original;  People v. Mejia, supra, 57 Cal.App.3d at p. 582, 129 Cal.Rptr. 192.)   In Mejia, the state authorities failed to notify the defendant that the witnesses were being turned over to federal authorities for immediate deportation so that he had no opportunity either to interview the witnesses or to subpoena them in the criminal proceedings pending against him.  (Id., at p. 581, 129 Cal.Rptr. 192.)   In Cordova, charges against the alien witnesses were dismissed and they, too, were turned over to federal authorities.   In that case, Cordova's attorney made a diligent effort to file a “Mejia motion” as soon as he became aware of what was happening.  (Cordova v. Superior Court, supra, 148 Cal.App.3d at p. 181, 195 Cal.Rptr. 758.)

In this case, the prosecution did make the defense generally aware that the charge against one defendant was being dismissed and the other person was being deported.   Unknown to either the prosecutor or the public defender was that each of the two others were still in custody in the county.   In Cordova, the court said that it did not intend “to entirely relieve a defendant of some duty of diligence to make a known alien witness available for trial.”   (Cordova v. Superior Court, supra, 148 Cal.App.3d at p. 186, 195 Cal.Rptr. 758.)   Had appellant's counsel in this case exercised any diligence whatsoever during the period between her initial conversation with the prosecutor on May 8 or 9, and the appearance in court on May 13, 1986, the true situation would have come to light and the material witness could have been made available for testifying at trial.   Unlike in Mejia and Cordova, appellant cannot excuse his inaction by a total lack of notice as to what was pending.  (See People v. Valencia (1987) 191 Cal.App.3d 1483, 1492–1494, 237 Cal.Rptr. 128.)

As the witness could have remained available had there been any diligence shown by defense counsel, the state was not responsible for Barragan's unavailability.   The trial court properly denied the motion to dismiss.

III. CONCLUSION

The judgment is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

2.   The original motion was also directed to the release of the third person arrested, Rafael Rallon.   He eventually was found and testified at trial, so as to him the issue became moot.

CHANNELL, Associate Justice.

ANDERSON, P.J., and SABRAW, J., concur.