UNITED STATES OF AMERICA v. LAURA HERNANDEZ PENA (2022)

ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS IN PART AND RESERVING DECISION IN PART

Pending before the Court is Defendant Laura Hernandez-Pena's motion to suppress. (ECF No. 26). The Court held evidentiary hearings on September 9 and 15, 2022, and the Court heard oral argument on September 29, 2022.¹ For the reasons discussed below, Defendant's motion will be granted in part.

I. BACKGROUND 2

On February 4, 2022, at about 12:30 p.m., Special Agents Alex Ortiz and Riaan Roberts went to a Starbucks about three miles from the Mexico-United States border. The Starbucks was in a strip mall, which had a parking lot. The agents approached the Starbucks, realized it was closed, and were talking about what they would do next when Reyna Rodriguez walked up to the store. Agent Ortiz told her that the Starbucks was closed.

Rodriguez smiled politely and went back to her car (a red Mini Cooper) in the parking lot. The agents also returned to their vehicle, which was an unmarked government vehicle. The agents were in plain clothes. As they were sitting in their car, the agents saw Rodriguez get a battery charger from her car. Rodriguez held the charger with one hand at chest level. She was holding it at that height so the wires would not drag on the ground.

At the same time, Defendant Laura Hernandez-Pena exited a gray Toyota and walked toward Rodriguez. Rodriguez walked about six feet and met Hernandez-Pena. Rodriguez and Hernandez-Pena interacted for about 20 seconds, and Rodriguez gave Hernandez-Pena the charger. Hernandez-Pena took it back to her car and placed it in the trunk. The agents thought that the charger appeared lighter than normal, as the women were able to carry and lift it easily. The agents recalled a bulletin they had seen and thought this could be a drug exchange.

Before February 4, 2022, the agents had read a bulletin explaining that border agents found drugs inside “a battery jumper, projector, and a power surge protector in the trunk of [a] vehicle.” Agent Roberts had been involved in at least five previous cases involving battery jumpers being used to conceal drugs. Agent Ortiz had never seen a battery charger used to hide drugs before and had never seized a battery charger.

The agents went to Hernandez-Pena's car as she started to back out of her parking spot. She backed out about three or four feet but then stopped because the agents were approaching her car. Agent Ortiz walked around the front of her car to the driver's side, and Agent Roberts walked from behind her car to the driver's side. Hernandez-Pena asked the agents, “what's going on.” Agent Ortiz asked her what she put in the trunk of her car, and then Agent Roberts identified himself as a law enforcement officer and displayed his badge.

If Hernandez-Pena wanted to back out and turn the front of her car to the left, she likely would have hit one of the agents. If she stepped out of the car, she would have been surrounded by two cars and the two agents. Rodriguez then approached the back of Hernandez-Pena's car, and Agent Ortiz went to speak with her to prevent her from approaching Agent Roberts from behind.

Agent Roberts told Hernandez-Pena that battery chargers from Mexico are dangerous and tended to explode. Hernandez-Pena became very nervous. Her respiratory rate increased, her eyes started darting around, and her hands started trembling. Agent Roberts asked to inspect the charger, but Hernandez-Pena said no because she needed to leave for a meeting. Instead, Hernandez-Pena offered to give Agent Roberts the charger. At that point, Agent Roberts told Hernandez-Pena that she was being detained and that she would need to wait for a K9 unit to arrive.

About the same time, Agent Ortiz and Rodriguez went to her car to speak there. Rodriguez told Agent Ortiz that she was hired to review products, including the charger, and had a clipboard with a survey of a product filled out. Agent Ortiz told Agent Roberts what Rodriguez had said. Rodriguez then started backing out of her parking spot, but Agent Ortiz ordered her to stop, turn off her car, and exit her car.

The agents called the K9 unit, which took about thirty minutes to arrive. When the unit arrived, Hernandez-Pena consented to a search of her car. The dog altered to the presence of narcotics in the chargers in the trunk of the car. The narcotics tested positive for methamphetamine hydrochloride. Agent Ortiz then read Rodriguez her rights and arrested her. Agent Roberts arrested Hernandez-Pena.

The battery pack Rodriguez gave to Hernandez-Pena was a Duralast BP-DL900, which normally weighs about 10 pounds. It contained about 7 pounds of methamphetamine.

II. LEGAL STANDARDS

A law enforcement officer “can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion must be based on “more than an inchoate and unparticularized suspicion or hunch.” Id. (quoting Terry, 392 U.S. at 27 (quotation marks omitted)). In other words, “the Fourth Amendment imposes [a] minimal level of objective justification to validate [a] detention or seizure.” INS v. Delgado, 466 U.S. 210, 217 (1984); accord United States v. Cortez, 449 U.S. 411, 417 (1981) (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”). That is because the Fourth Amendment upholds “the individual's right to personal security free from arbitrary interference by law officers.” Brown v. Texas, 443 U.S. 47, 50 (1979) (citation omitted). As such, courts must “assure that an individual's [right] of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” Id. at 51.

Courts analyzing whether there is reasonable suspicion supporting a seizure look at “the totality of the circumstances – the whole picture.” Cortez, 449 U.S. at 417. Law enforcement officers may draw on their experience when assessing a situation, and courts must recognize how the facts would appear to a law enforcement officer. Id. at 418.

“For purposes of the Fourth Amendment, a seizure occurs when an officer, through some form of physical force or show of authority, restrains the liberty of a citizen” such that “a reasonable person would have believed that he was not free to leave.” United States v. Summers, 268 F.3d 683, 686 (9th Cir. 2001) (citation omitted). Five factors to consider when deciding whether a reasonable person would feel free to leave “are: (1) the number of officers; (2) whether weapons were displayed; (3) whether the encounter occurred in a public or non-public setting; (4) whether the officer's ․ manner [implied] that compliance [was required]; and (5) whether the officers advised the detainee of his right to terminate the encounter.” United States v. Washington, 387 F.3d 1060, 1068 (9th Cir. 2004).

III. DISCUSSION

The agents lacked reasonable suspicion to seize Hernandez-Pena.³ First, the agents' suspicion based on how Rodriguez and Hernandez-Pena carried the charger is unpersuasive and entitled to little weight. The parties have stipulated that battery chargers can weigh 4.4 pounds, 6.8 pounds, 8.9 pounds, and 10 pounds. (ECF No. 57). It is thus unpersuasive to argue that it is suspicious for an adult to carry a battery charger with one hand at chest-level.

This is especially so, as when the agents observed the charger from about 20 feet away, they did not know what kind of charger they were looking at. They had an inadequate basis to judge how easily Rodriguez and Hernandez-Pena should have been carrying the charger. By suspecting foul play based on how easily the charger was carried, the agents were making uninformed assumptions. Confirming the unreliability of this “too-light-to-be-real” suspicion, the battery charger with the narcotics weighed about the same amount as a normal charger. The agents' conclusion about the weight of the charger is entitled to little weight in the reasonable suspicion calculus.

Second, Hernandez-Pena's nervousness is entitled to no weight because (a) she was seized before she became nervous and (b) she became nervous when Agent Roberts told her that the charger could explode.

The Court finds that Hernandez-Pena was seized when Agent Roberts partially restricted Hernandez-Pena's movement, identified himself as a law enforcement officer, displayed his badge, and demanded to know what was in her trunk. At that point, two law enforcement officers were standing next to her vehicle and preventing her from turning the front of her car to the left. If she stepped out of the car, she would have been surrounded by two cars and two law enforcement officers. The agents partially restricted Hernandez-Pena's movement, which supports a finding that she was detained. See United States v. Kim, 292 F.3d 969, 977 (9th Cir. 2002) (explaining that restriction of movement is a relevant factor in detention analysis).

No reasonable person would feel free to drive away if a law enforcement officer approached the driver's side of the car, displayed his badge, and demanded to know what is in the trunk. See Terry, 392 U.S. at 19 n.16 (explaining that a seizure occurs when an officer's “show of authority ․ restrain[s] the liberty of a citizen”). A reasonable person would have understood that the agent here was not merely asking to have a conversation, but was instead demanding to know what was in the trunk. See Florida v. Bostick, 501 U.S. 429, 437 (1991) (providing that questioning by law enforcement does not constitute a detention “so long as the officers do not convey a message that compliance with their requests is required”). The agents did not say that they just wanted to talk to Hernandez-Pena and that she was free to leave whenever she desired.

Because Agent Roberts (with Agent Ortiz) partially restricted Hernandez-Pena's movement, demanded to know what was in her trunk in a manner implying that some sort of compliance was required, identified himself as a law enforcement officer, and displayed his badge, he detained Hernandez-Pena. See idid.; Terry, 392 U.S. at 19 n.16; Kim, 292 F.3d at 977; and Washington, 387 F.3d at 1068.

In any case, even assuming Hernandez-Pena was not seized until Agent Roberts told her she was being detained, her nervousness would still be entitled to no weight. Hernandez-Pena was nervous after Agent Roberts told her that an object in her car was dangerous and tended to explode. It would be problematic to find it suspicious that a person would respond nervously to such a warning.

Third, the remaining facts with some weight for reasonable suspicion – the agents' experience or familiarity with battery chargers as objects used in drug smuggling, the proximity of the Starbucks to the border, and the lack of observable car trouble – are insufficient to authorize a detention. Were this Court to hold otherwise, every person who lives near the border could be seized in a parking lot for exchanging containers that could hold drugs. See generally Reid v. Georgia, 448 U.S. 438, 441 (1980) (providing that facts pertaining to “a large category of presumably innocent travelers” should not support reasonable suspicion because otherwise those innocent travelers could be seized by law enforcement); Brown v. Texas, 443 U.S. 47, 52 (1979) (indicating that a defendant's action should not create reasonable suspicion when it is “no different from the activity of other pedestrians in the neighborhood”); United States v. Rodriguez, 976 F.2d 592, 596 (9th Cir. 1992) (declining to finding reasonable suspicion under a description – “a Hispanic man cautiously and attentively driving a 16 year-old Ford with a worn suspension, who glanced in his rear view mirror while being followed by agents in a marked Border Patrol car” – that could “fit hundreds or thousands of law abiding daily users of the highways of Southern California”); and United States v. Hernandez-Alvarado, 891 F.2d 1414, 1418-19 (9th Cir. 1989) (viewing it problematic that the factors allegedly supporting reasonable suspicion “describe too many individuals”)

The D.C. Circuit has even doubted that a seizure with stronger facts for reasonable suspicion would be lawful. See United States v. Johnson, 212 F.3d 1313, 1316 (D.C. Cir. 2000) (“doubt[ing] very much” that a seizure “would have been valid” if an officer saw a hand-to-hand exchange in a high crime area and then saw someone try to hide the object when the officer drove by). The Seventh Circuit has expressed similar doubts. See United States v. Harris, 188 Fed. Appx. 498, 500-01 (7th Cir. 2006) (unpublished) (explaining that three facts – a hand-to-hand exchange in a high crime area and the defendant wearing a long coat – were insufficient for reasonable suspicion but finding reasonable suspicion because the defendant also walked away and refused to stop when ordered to). Cases upholding a seizure after a hand-to-hand transaction tend to have much stronger evidence than here. See, e.g., United States v. Johnson, 627 F.3d 578, 584 (6th Cir. 2010) (affirming denial of suppression motion where officer saw hand-to-hand transaction in high crime area and “actually saw cash and pieces of a small, off-white substance being exchanged”).

Finally, the fact that Rodriguez actually went to the Starbucks lessens the weight of suspicion. If she came to the parking lot for a drug deal, she likely would have stayed by the drugs and not left her car with drugs inside it. But Rodriguez did go to Starbucks, making it more unreasonable to assume that she came to the parking lot for a drug deal.

In sum, no matter what their “sixth sense” or intuition, police officers may not seize people for merely exchanging a car charger in a parking lot. The officers lacked reasonable suspicion when seizing Hernandez-Pena. The evidence found in Hernandez-Pena's car must be suppressed. Wong Sun v. United States, 371 U.S. 471, 485 (1963) (“The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion.”).

IV. CONCLUSION

For the reasons stated, Defendant's motion to suppress is granted in part. (ECF No. 26). The evidence obtained from Hernandez-Pena's car is suppressed. The Court reserves decision on the remaining issues in the motion, which shall remain pending on the docket. The parties shall appear for a status conference on October 24, 2022, at 4:00 p.m.

IT IS SO ORDERED.

FOOTNOTES

1.   On September 29, 2022, the Court ruled that it would decide whether Defendant was lawfully seized before deciding the remaining issues in Defendant's motion. As such, this Order addresses whether Defendant was lawfully seized, and the Court reserves decision on the remaining issues in Defendant's motion.

3.   As such, the Court need not decide whether the 30-minute wait for the K9 unit turned the stop into a de facto arrest.

Honorable Barry Ted Moskowitz United States District Judge