Ninth Circuit Upholds Search of Tailgater’s Car Where Suspicion Arose

Metropolitan News-Enterprise

Monday, July 9, 2001

Page 3

Ninth Circuit Upholds Search of Tailgater’s Car Where Suspicion Arose

By ROBERT GREENE, Staff Writer

The Ninth U.S. Circuit Court of Appeals on Friday upheld the drug courier conviction of a man arrested after a highway patrol officer pulled him over for tailgating.

A clearly nervous Mariano Murillo knowingly and voluntarily signed a bilingual consent form giving the officer the right to search his car, and a host of other trial court rulings allowing evidence of the suspicious driver’s conduct to come before a jury were well within the judge’s discretion, the appeals panel ruled.

Although the driver could not be searched just because he was following a tractor-trailer rig too closely, no step of the officer’s questioning or search was clearly improper, the court said.

California Highway Patrol Officer Allen Stallman pulled Murillo over in Colusa County for tailgating, then saw that he was nervous and that he had food wrappers on the floor, indicating a long trip. Rental car papers showed he just got the car in Orange County and planned to have the car back several days later.

“Officer Stallman testified that in his experience and based upon special training he had received in narcotics interdiction,” Judge Richard C. Tallman recounted, “a long distance, quick turnaround trip in a rental car was suspicious.”

Stallman testified that Murillo’s eagerness to accept the citation “suggested to him that more serious criminal activity was afoot,” in Tallman’s words.

The officer asked permission to check Murillo’s pulse, and it was quickly granted. Stallman testified that the driver’s heart rate was about 150-160 beats per minute, and that Murillo was “one of the most nervous drivers he had ever encountered.”

After finishing writing the ticket, Stallman asked whether Murillo was carrying any alcohol, weapons or narcotics. He testified that Murillo looked right at him when answering “no” to alcohol and weapons, but looked away when answering “no” to narcotics.

The officer then produced a consent form in English and Spanish and Murillo signed it, authorizing the search.

“By coincidence,” Tallman wrote, a CHP canine unit arrived to back up the officer. The dog alerted to drugs hidden in the car, and Stallman found 3.8 kilograms of methamphetamine and 2.5 kilograms of cocaine valued at more than $1 million. Murillo was then handcuffed and arrested.

He was indicted for possessing each drug with intent to distribute. His first jury hung, as did his second. But his third convicted him on both counts.

Tallman said it was indisputable that the initial stop was valid because Murillo was tailgating. The expanded questioning also was valid given the suspicious circumstances, such as the driver’s nervousness and lack of eye contact and the evidence of a long road trip, the judge said.

Murrillo argued that the consent was not voluntary, but Tallman noted that the trial judge, U.S. District Judge Garland E. Burrell of the Eastern District of California, weighed five factors: whether Murillo was in custody, whether the officer’s gun was drawn, whether Miranda warnings were given, whether Murillo was told he had a right not to consent, and whether he was told a search warrant could be obtained.

There was no custody and no evidence of a gun being drawn, the officer did not claim to have a warrant or the ability to obtain one, and the consent form stated that he had no right to consent. Burrell cited as the only factor weighing toward involuntariness the lack of Miranda warnings, but Tallman noted that Miranda warnings are not required absent custody.

“Based on its factual findings that four out of five factors demonstrated voluntariness, the district court concluded that Murillo voluntarily gave his consent and denied his motion to suppress the evidence,” Tallman said. “These factual determinations were not clearly erroneous and the court’s weighing of the relevant voluntariness factors in light of these facts complies with our case law.”

Tallman was joined by Chief Judge Mary M. Schroeder and Senior Judge J. Clifford Wallace.

The case is U.S. v. Murillo, 00-10042.