United States of America v. Mario Marcial

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO MARCIAL,
Defendant-Appellant.
No. 21-50087
D.C. No. 5:20-cr-00127-JGB-1
Central District of California,
Riverside
ORDER
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JORGE MARCIAL,
Defendant-Appellant.
No. 21-50104
D.C. No. 5:20-cr-00127-JGB-2
Central District of California,
Riverside
Before: MILLER and COLLINS, Circuit Judges, and KORMAN,* District Judge.
The Memorandum filed on October 19, 2022 is amended by inserting, at the
end of section 1 on page 3, after the phrase <Mexico”).>, the following new
footnote:
In their opening brief, Defendants contended that these
factors, standing alone, did not amount to reasonable
suspicion, but they did not challenge the underlying factual
findings about their driving behavior or about the agent’s
knowledge of their prior border crossings. Because we
* The Honorable Edward R. Korman, United States District Judge for the Eastern
District of New York, sitting by designation.
FILED
JAN 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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conclude that these factors were sufficient to establish
reasonable suspicion, we need not address Defendants’ further
contention that the district court clearly erred in crediting the
agent’s claim to have seen artificial spray-on mud on the
Pilot’s undercarriage.
An Amended Memorandum reflecting this amendment is filed concurrently
with this order. With that amendment, the panel has voted unanimously to deny
the petition for panel rehearing. No further petitions for rehearing may be filed.

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO MARCIAL,
Defendant-Appellant.
No. 21-50087
D.C. No. 5:20-cr-00127-JGB-1
AMENDED
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JORGE MARCIAL,
Defendant-Appellant.
No. 21-50104
D.C. No. 5:20-cr-00127-JGB-2
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted May 17, 2022
Pasadena, California
Before: MILLER and COLLINS, Circuit Judges, and KORMAN,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
** The Honorable Edward R. Korman, United States District Judge for the Eastern
District of New York, sitting by designation.
FILED
JAN 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Defendants Mario and Jorge Marcial conditionally pleaded guilty to drug-
trafficking charges, reserving the right to appeal the district court’s denial of their
motion to suppress evidence that was seized during a stop of their vehicle by a U.S.
Border Patrol agent. We have jurisdiction over Defendants’ timely appeals under
28 U.S.C. § 1291. Reviewing de novo, United States v. Pope, 686 F.3d 1078, 1080
(9th Cir. 2012), we affirm the district court’s denial of their motion to suppress.
1. The agent’s initial stop of Defendants’ vehicle, a Honda Pilot, was
supported by the requisite “reasonable suspicion to believe that criminal activity
‘may be afoot.’” United States v. Arvizu, 534 U.S. 266, 273 (2002) (citation
omitted).
At the time that the agent stopped the Pilot on June 25, 2020, he had already
followed that vehicle for more than eight miles on the freeway. The agent had
initially been parked conspicuously by the side of the road, and after the
Defendants’ Pilot—alone among the group of three cars in which it was
traveling—substantially slowed down upon seeing the agent’s vehicle, the agent
began following the Pilot. While doing so, the agent performed a records check on
that vehicle and learned that it had crossed the border from Mexico earlier that
morning; that two persons were in the Pilot when it had crossed, namely Mario
Marcial (the Pilot’s registered owner) and Jorge Marcial; that Jorge Marcial had
attempted to smuggle marijuana over the border in 2010 and 2014; and that Mario

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Marcial had attempted to smuggle marijuana across the border in 2011 and had
also attempted to cross the border in a stolen vehicle in 2019. The agent noticed
that the Pilot had difficulty staying in its lane, which the agent believed might be
due to nervousness about the presence of law enforcement. Then, as the two
vehicles were approaching the Temecula Border Control Checkpoint, the Pilot—
which had been driving in the left-most lane—suddenly swerved across three lanes
in an apparent attempt to evade the agent by exiting the freeway, at the last minute,
at the last exit before the checkpoint. This “unsafe[]” maneuver was unsuccessful,
because a tractor trailer in the fourth lane blocked the Pilot’s ability to exit. These
facts, taken as a whole, amply provide “reasonable suspicion to believe that
criminal activity ‘may be afoot.’” Arvizu, 534 U.S. at 273 (citation omitted); see
also United States v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013) (en banc)
(finding reasonable suspicion for stop of vehicle engaged in “erratic” driving near
the same Temecula checkpoint where defendant’s driving “changed as [the
defendant] approached the checkpoint” and was on same route “commonly used by
smugglers coming from Mexico”).1
1 In their opening brief, Defendants contended that these factors, standing alone,
did not amount to reasonable suspicion, but they did not challenge the underlying
factual findings about their driving behavior or about the agent’s knowledge of
their prior border crossings. Because we conclude that these factors were
sufficient to establish reasonable suspicion, we need not address Defendants’
further contention that the district court clearly erred in crediting the agent’s claim
to have seen artificial spray-on mud on the Pilot’s undercarriage.

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2. The seizure of the Pilot based on reasonable suspicion was not unduly
prolonged. A lawful seizure “can become unlawful if it is prolonged beyond the
time reasonably required to complete [its] mission.” Illinois v. Caballes, 543 U.S.
405, 407 (2005). After asking the driver, Jorge Marcial, to exit the vehicle, the
agent questioned him for approximately four minutes. Jorge told the agent that he
was traveling to Long Beach, which the agent thought was suspicious because
Defendants were not traveling on the freeway that drivers ordinarily would take
when heading to Long Beach. Jorge further stated to the agent that he was not
responsible for the vehicle, and Jorge admitted that there was marijuana in the
vehicle. The agent then separately questioned Mario Marcial for about four
minutes. Mario likewise said that they were headed to Long Beach, and he
explained that he did not take the direct freeway route because he was afraid of
encountering “border patrol” on that route given that Jorge lacked a driver’s
license. Mario also acknowledged there was marijuana in the car, but in response
to a follow-up question, he said it was only a small amount. When the agent said
he was only interested in “large quantities of marijuana,” Mario “had an extremely
scared look on his face and would no longer make eye contact.” Given the
efficiency and effectiveness of this questioning in developing information relevant
to the underlying reasonable suspicion that led to the stop, we conclude that it was
not unduly prolonged.

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3. The agent had probable cause to search the Marcials’ vehicle. While the
initial seizure need only have been supported by reasonable suspicion, an officer
needs “probable cause to believe that the vehicle contains evidence of a crime” to
search a vehicle without a warrant. United States v. Brooks, 610 F.3d 1186, 1193
(9th Cir. 2010). Defendants contend that the mere admission that marijuana was in
the car did not create probable cause for a vehicle search, given that the amounts
could have been (as Mario claimed) small, personal-use amounts that would
neither be unlawful under California state law nor (in Defendants’ view) probative
of drug trafficking. See United States v. Underwood, 725 F.3d 1076, 1082–83 (9th
Cir. 2013) (holding that an officer’s observation of a small amount of marijuana
did not provide probable cause to search the home of an alleged ecstasy trafficker).
But the admission that the Pilot contained marijuana must be evaluated in light of
all of the other facts known to the agent, including the other facts we have set forth
above. See District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (rejecting a
“divide-and-conquer” approach to analyzing facts supporting a probable cause
determination (citation omitted)). Considering “the whole picture” presented by
the “totality of the circumstances,” id. (citation omitted), we conclude that the
agent had probable cause to conclude that the Marcials were engaged in narcotics
trafficking and that narcotics would be found in the vehicle. Id. at 586 (stating that
“[p]robable cause is not a high bar” and “requires only a probability or substantial

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chance of criminal activity, not an actual showing of such activity” (citations and
internal quotation marks omitted)).
AFFIRMED.

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