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Frank Cikutovich:
Cases
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State v. Pena, 103 Wash.App. 1027, 103 Wash.App. 1027 (Wash.App.
11/14/2000) |
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Washington Court of Appeals |
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No. 18805-1-III |
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103 Wash.App. 1027, 103 Wash.App. 1027, 2000.WA.0043633 |
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November 14, 2000 |
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STATE OF WASHINGTON, RESPONDENT,
v.
JONATHAN DAVID PENA, APPELLANT. |
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Source of Appeal: Appeal from Superior Court of Pend Oreille
County Docket No: 99-1-00017-2 Judgment or order under review Date
filed: 10/07/1999 Judge signing: Hon. Rebecca Baker |
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Counsel: Counsel for Appellant(s)
Stiley & Cikutovich
1408 W Broadway Ave Spokane, WA 99201 Counsel for Respondent(s)
Antonio D. Koures Pend Oreille Co Prosc Aty PO Box 5070 Newport,
WA 99156-5070 |
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Judges: Authored by John A. Schultheis Concurring: Stephen M.
Brown Kenneth H Kato |
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The opinion of the court was delivered by: Schultheis, J. |
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Panel Two |
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UNPUBLISHED OPINION |
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Nov. 14, 2000 |
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Jonathan Pena contends the trial court erred when it denied
his motion to suppress evidence, which resulted in his conviction
for possession of a controlled substance, marijuana, with intent
to deliver. Mr. Pena alleges the search of his vehicle was not authorized
and/or justified. Consequently, he argues the evidence seized and
presented at trial should have been suppressed. Because the court
properly denied the suppression motion, we affirm. |
| [14] |
In 1998 the U.S. Border Patrol became aware that a number of
contraband smuggling activities were occurring at the Canadian border
near Metaline Falls, Washington. The border crossing is closed each
evening between midnight and 8:00 a.m. Security video cameras installed
at or near the border crossing showed that individuals continued
to cross the border by foot, on both sides of the border, after
the station closed for the night. Both Canadian and U.S. border
officials were aware that British Columbia grown marijuana, also
known as 'B.C. bud,' had been successfully smuggled across the Metaline
Falls port of entry through various methods. |
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In an attempt to stem the flow of illegal drugs across the international
border, Canadian and U.S. officials began to trade information regarding
the activities of certain individuals whose travel across the border
appeared suspicious for various reasons. In addition, electronic
seismic devices were placed near the Metaline Falls port of entry.
Although not 100 percent reliable, the seismic devices were usually
able to detect movement in the vicinity of the border. |
| [16] |
On March 3, 1999, a snowplow driver informed the Metaline Falls
Port Director, John Norris, that there was a pre-dawn, suspected
attempt to breach the area's closed border crossing. The snowplow
driver described the vehicle involved as a gray Mazda with Oregon
plates. Agent Wayne Reome, a 22-year veteran of the U.S. Border
Patrol, was notified of the incident when he reported for work that
day. He recalled seeing a lone vehicle matching that description,
just after daybreak on his way to work that morning. That same day
Agent Reome read a 'Lookout' concerning Mr. Pena as a strongly suspected,
non-genuine visitor to Canada. The information reported that Mr.
Pena was apparently searched at a border crossing at 1:50 a.m. on
March 2, 1999 and found to be in possession of a spent marijuana
roach and $2,900 in U.S. currency. The report contained a copy of
his Oregon driver's license as well as the description and license
number of the vehicle he was driving. The vehicle matched the one
described by the snowplow driver and Agent Reome. |
| [17] |
Agent Reome decided to work the midnight shift that night so
that he could perform surveillance near the Metaline Falls port
of entry. He parked his patrol vehicle in a hidden spot approximately
seven miles south of the border. All vehicular traffic traveling
to and from the border would pass his location. Agent Reome's vehicle
was equipped with portable sensor monitoring equipment that would
activate when there was movement at or near the seismic sensor devices
located at the Metaline Falls border. The equipment was activated
at 2:41 a.m. indicating activity at the border. |
| [18] |
Approximately 10 minutes later, a small sedan, traveling toward
the border, passed the agent's hidden location. At 3:06 a.m. the
same sedan, traveling in the opposite direction, passed the lookout
position again. Agent Reome followed the sedan, keeping in near-constant
visual contact. There was no other traffic on the road at that time
of the morning. The sedan's license plate was called into the Pend
Oreille County Sheriff's dispatch office for a warrant check. At
3:11 a.m., while waiting for dispatch to call back with a report,
Agent Reome's seismic monitor again sounded. Figuring the person
who had met with the sedan he was following was now returning to
Canada, Agent Reome requested that the Royal Canadian Mounted Police
be notified. The dispatch report identified the vehicle and the
registered owner as Mr. Pena, the same vehicle and driver noted
in the Lookout report. Agent Reome immediately requested law enforcement
assistance in order to stop and question the driver of the sedan
he had been following. |
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Mr. Pena was identified as the driver of the vehicle. Agent
Reome said he appeared somewhat nervous when questioned. Mr. Pena
offered no explanation for why he had been to the closed border
crossing at that time of the morning. Mr. Pena was asked to open
the trunk of the vehicle for the officers on the scene, which he
did. As a result of the search, the officers seized nearly 40 pounds
of marijuana. The Canadian authorities notified Agent Reome that
the individual they stopped just north of the border and the registered
owner of the vehicle had both been previously convicted of, among
other things, trafficking in controlled substances. After a bench
trial on stipulated facts, Mr. Pena was found guilty of possession
of a controlled substance with intent to deliver. |
| [20] |
Mr. Pena contends that the trial court erred when it denied
his motion to suppress evidence based on an unauthorized and/or
illegal search. However, he does not assign error to the trial court's
findings of fact. Unchallenged findings of fact following a CrR
3.6 suppression hearing are accepted as verities upon appeal, and
will not be reviewed by the appellate court. State v. Hill, 123
Wn.2d 641, 644-47, 870 P.2d 313 (1994). |
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Accordingly, our review is limited to a de novo determination
of whether the trial court derived proper conclusions of law from
the unchallenged findings of fact. State v. Armenta, 134 Wn.2d 1,
9, 948 P.2d 1280 (1997). |
| [22] |
A border patrol agent may search a vehicle at the border without
probable cause or a warrant. State v. Bradley, 105 Wn.2d 898, 902,
719 P.2d 546 (1986). When, as here, a federal agent conducts
a warrantless search at a location other than at the border, federal
law requires articulable facts to support a reasonably certain conclusion
that contraband has crossed the international border. State v. Quick,
59 Wn. App. 228, 233, 796 P.2d 764 (1990) (citing United States
v. Potter, 552 F.2d 901, 907 (9th Cir. 1977)). The Potter court
defined reasonable certainty as a standard higher than probable
cause but less than proof beyond a reasonable doubt. Potter requires,
under the totality of the facts and circumstances within the agent's
knowledge and experience, that the agent performing the search has
a firm belief that contraband has crossed the border. Potter, 552
F.2d at 907. |
| [23] |
In Quick, Division One discussed two exceptions to the general
rule that probable cause and/or a warrant is usually required to
lawfully search a vehicle if no arrest has occurred. They are the
extended border search and the functional equivalent of a border
search. The Quick court, utilizing these two exceptions, reversed
and remanded Mr. Quick's conviction for possession after it determined
that evidence was improperly seized as the result of an unlawful
search. 59 Wn. App. at 236. Although the particular facts underlying
the Quick case are inapplicable to those in Mr. Pena's case, the
court's explanation of the extended border search and functional
equivalent of a border search are on point. |
| [24] |
Under the extended border search doctrine, a customs official
may conduct a border search either before or after the international
border is actually crossed. However, because this type of search
is more intrusive than a typical border search, the courts require
reasonable suspicion that the subject of the search was involved
in criminal activity and that the subject or the contraband crossed
a border. Quick, 59 Wn. App. at 234. In determining whether
a search was properly conducted at the functional equivalent of
the border, courts have acknowledged the government's legitimate
interest in searching persons and/or vehicles that cross international
borders. However, courts are also careful to ensure that border
patrol agents do not violate the constitutional rights of domestic
travelers. Id. at 233; see United States v. Garcia, 672 F.2d 1349
(11th Cir. 1982). |
| [25] |
Here, the court determined that the State made an excellent
record through Agent Reome's testimony regarding the facts and circumstances
surrounding his reasonable certainty that contraband had crossed
the border. This resulted in his decision to conduct an extended
border search of Mr. Pena's vehicle. In making its decision to deny
Mr. Pena's motion to suppress evidence, the court relied on the
Lookout report describing Mr. Pena and his vehicle, the timing of
the seismic hits just prior to stopping the vehicle, and the distance
Mr. Pena had to travel to and from the border. It then determined
that the contraband could not have changed character since it crossed
the border. Additionally, the court cited as factors giving rise
to Agent Reome's reasonable certainty that contraband had crossed
the border and would likely be found in Mr. Pena's vehicle, the
lack of traffic in the early hours of the morning in that area,
the amount of marijuana seized, as well as Agent Reome's experience
in patrolling that particular area of the state. The court also
determined that the stop and search of Mr. Pena's vehicle could
not have safely occurred, as a matter of officer safety, any closer
to the border than it did. Accordingly, the court correctly found
that the extended border search and/or functional equivalent of
a border search, which led to the discovery of the evidence on which
Mr. Pena was arrested and ultimately convicted, was reasonable.
The court's decision to deny Mr. Pena's motion to suppress was proper. |
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Affirmed. |
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A majority of the panel has determined that this opinion will
not be printed in the Washington Appellate Reports but it will be
filed for public record pursuant to RCW 2.06.040. |
| [28] |
Schultheis, J. |
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WE CONCUR: |
| [30] |
Brown, A.C.J. |
| [31] |
Kato, J. |
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