United States v. Gonzalez

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 11, 1999
• Docket: 98-5070
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 11 1999 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-5070 (D.C. No. 97-CR-150-C) ALBERTO GONZALEZ, (N.D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, the panel has determined

oral argument would not materially assist the determination of this appeal. See

Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the case is ordered

submitted without oral argument.

Defendant Alberto Gonzalez entered a conditional plea of guilty to

possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. § 841(a)(1), reserving the right to appeal the district court’s denial of his motion

to suppress evidence. On appeal, defendant contends the court erred in denying

both his motion to suppress and his motion to supplement the record. We affirm.

I.

An officer of a multi-agency task force advised the Tulsa Police

Department that two Hispanic males, suspected of carrying drugs, were to arrive

in Tulsa on a Delta Airlines flight from California. In response, several officers

were stationed at the airport when the flight arrived to observe the passengers as

they deplaned and left the airport. Gonzalez, who was carrying a bag, was one of

two Hispanic males who got off the airplane. The two men walked through the

airport separately without conversing, but then shared a taxi from the airport

terminal. The officers followed in an unmarked car. The cab meandered and

changed directions frequently before coming to a stop along a public street. After

the cab’s hazard lights began flashing and the female cab driver appeared to lie

down in the front seat of the cab, the two men got out of the cab. The officers

approached the cab, identified themselves, and asked the men to keep their hands

in the officers’ view. In response, defendant allegedly tried to reach into his bag,

at which time at least two officers drew their weapons and ordered him to place

his hands in the air. One of the officers patted down defendant and felt hard

objects around his waist. A package fell to the ground when the officer lifted

-2- defendant’s shirt and slightly pulled on his waistband. Suspecting the package

contained narcotics, the officer arrested defendant. Defendant was taken to a

nearby police station where officers found two additional packages of narcotics

taped to defendant and confirmed that the package that fell to the ground did

contain narcotics.

II.

Motion to Suppress

Defendant moved to suppress the narcotics seized from his person,

asserting the officers did not have reasonable suspicion to detain him as he got

out of the cab.

When reviewing a district court’s denial of a motion to suppress, we

consider the totality of the circumstances and view the evidence in a light most

favorable to the government. United States v. Hunnicutt, 135 F.3d 1345, 1348

(10th Cir. 1998). We accept the court’s factual findings unless they are clearly

erroneous. Id. The credibility of witnesses, the weight to be given evidence, and

the reasonable inferences drawn from the evidence fall within the province of the

district court. Id. Bearing in mind that the burden is on the defendant to prove

the challenged seizure was illegal under the Fourth Amendment, United States v.

Ludwig , 10 F.3d 1523, 1526 (10th Cir. 1993), the ultimate determination of

reasonableness under the Fourth Amendment is a question of law we review de

-3- novo. Hunnicutt , 135 F.3d at 1348.

It is well settled that “a police officer may in appropriate circumstances and

in an appropriate manner approach a person for purposes of investigating possibly

criminal behavior even though there is no probable cause to make an arrest.”

Terry v. Ohio , 392 U.S. 1, 22 (1968). Thus, “police 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).

Additionally, in such cases, a frisk is justified as a means of assuring the officer’s

safety. Adams v. Williams , 407 U.S. 143, 146 (1972).

To justify an investigative detention, “the police officer must be able to

point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant [the particular] intrusion.” Terry ,

392 U.S. at 21. In determining whether an investigative detention was

reasonable, we examine first whether the stop was justified at its inception, and

second whether the scope of the stop was reasonably related to the circumstances

which justified it originally. Hunnicutt , 135 F.3d at 1348. “Whether . . . an

investigative detention is supported by an objectively reasonable suspicion of

illegal activity does not depend on any one factor, but on the totality of the

circumstances.” United States v. Soto , 988 F.2d 1548, 1555 (10th Cir. 1993).

-4- We conclude that under the totality of the circumstances the officers had

reasonable suspicion to briefly detain and question defendant. The Tulsa officers

were advised by a fellow law enforcement agency that two Hispanic males

arriving in Tulsa on a flight from California were suspected drug couriers. The

basis for this suspicion was not conveyed to the Tulsa officers. Defendant was

one of two Hispanic males who arrived in Tulsa on the flight. Although the

information received in this instance is too general to support reasonable

suspicion by itself, it is a factor to be considered in the reasonable suspicion

calculus, and one that weighs in favor of the government’s position. See United

States v. Soto-Cervantes , 138 F.3d 1319, 1323 (10th Cir. 1998) (“The tip [from an

anonymous tipster], when combined with other factors, justified the officers in a

brief investigative detention to investigate the allegations of drug activity.”). In

addition to information from other law enforcement officers, the Tulsa officers

observed behavior by the two Hispanic males that they reasonably considered

suspicious. The men walked through the airport at some distance from each other

and without speaking. They then met outside the terminal and left in the same

cab. The cab’s meandering route was also suspicious. Most important, when the

cab stopped at its apparent destination, the cab driver turned on the cab’s hazard

lights and appeared to lie down in the front seat of the cab. At the suppression

hearing, the arresting officer specifically testified at that point he feared for the

-5- safety of the cab driver.

Defendant contends each of the articulated facts that purportedly give rise

to reasonable suspicion is innocuous and entirely consistent with innocent travel.

Whether a particular fact indicates criminal activity, however, is not a proper

benchmark of whether that fact may, along with other facts, support a finding of

reasonable suspicion. Indeed, a fact that is supportive of reasonable suspicion

does not have to be at all indicative of criminal activity. See Sokolow , 490 U.S.

at 10 (“the relevant inquiry is not whether particular conduct is ‘innocent’ or

‘guilty,’ but the degree of suspicion that attaches to particular types of

noncriminal acts”). As the Supreme Court noted in Sokolow , “[a]ny one of these

factors is not by itself proof of any illegal conduct and is quite consistent with

innocent travel. But we think taken together they amount to reasonable

suspicion.” 490 U.S. at 9; see United States v. Lopez-Martinez , 25 F.3d 1481,

1484 (10th Cir. 1994) (“Our task . . . is not to pigeonhole each purported fact as

either consistent with innocent travel or manifestly suspicious.”).

It was also within the officers’ authority to conduct a brief pat down of

defendant, who appeared to reach for his bag when he was confronted by the

officers. “In the course of a valid investigative detention, an officer may conduct

a limited protective search (‘frisk’) if the officer harbors an articulable and

reasonable suspicion that the person is armed and dangerous.” United States v.

-6- Davis , 94 F.3d 1465, 1468 (10th Cir. 1996); see United States v. Duncan , 131

F.3d 894, 898 (10th Cir. 1997) . Where, as here, an individual makes a move that

reasonably may be perceived as threatening, officers are justified in conducting a

pat down. Cf. Davis , 94 F.3d at 1470 (no evidence that defendant “made any

threatening move towards the officers”).

Finally, it is irrelevant that narcotics, rather than weapons, were discovered

during the search. Police officers conducting a protective pat down during an

investigative detention may seize nonthreatening contraband. See Minnesota v.

Dickerson , 508 U.S. 366, 373 (1993); United States v. Lang , 81 F.3d 955, 967

(10th Cir. 1996).

Motion to Supplement Record

Defendant also contends the district court abused its discretion in denying

his “Motion to Supplement Record on Defendant’s Motion to Suppress,” which

was filed after the court ruled on the motion to suppress but before a notice of

appeal was filed from the denial of the motion to suppress. At the trial of the

other Hispanic male, the cab driver offered testimony that differed in some

respects from testimony given by the officers at defendant’s suppression hearing.

Defendant, who did not call the cab driver as a witness at his suppression hearing,

sought to supplement the record with the cab driver’s testimony from the other

trial. Defendant did not seek to reopen the suppression hearing before the district

-7- court, but rather renewed his motion to suppress and also asked the district court

to supplement the record after it had ruled on defendant’s initial motion to

suppress.

As the district court noted, defendant did not seek testimony from the cab

driver at the suppression hearing, despite the apparent availability of the cab

driver. Thus, the testimony is not newly discovered evidence of the type that

would warrant either reopening the suppression hearing or allowing

supplementation of the record. See Anthony v. United States , 667 F.2d 870, 875

(10th Cir. 1981). Moreover, in denying defendant’s motion, the court stated the

cab driver’s testimony would not have altered its decision to rely on the testimony

of the officers. Given these circumstances, the district court did not abuse its

discretion in denying the motion to supplement the record.

AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge

-8-