United States v. Jose Antonio Gonzalez

763 F.2d 1127, 1985 U.S. App. LEXIS 20683

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 24, 1985
• Docket: 84-1603
• Status: Published

Opinions

LOGAN, Circuit Judge.

Defendant Jose Antonio Gonzalez appeals from his conviction after a guilty plea of knowingly and unlawfully possessing, with the intent to distribute, a quantity of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Pursuant to Fed.R.Crim.P. 11, the court permitted defendant to preserve for appeal the denial of his motion to suppress evidence. He contends on appeal that the search of his automobile, which revealed the cocaine, was illegal.

A state patrolman stopped the car defendant was driving in New Mexico on Interstate 40 at 9:00 p.m. in January 1984 for a speeding violation. As the officer approached the vehicle, which contained defendant and a woman passenger, defendant stepped out of the car. The officer noticed an “extremely strong odor of some kind of deodorizer” which he testified at the suppression hearing is often used to mask the odor of narcotics. Defendant gave the officer a valid New York state driver’s license as well as a valid California registration and a valid, though unsigned, California car title document. While defendant waited at the roadside, the officer stopped another car, issued a warning to that driver, and let that car proceed. Defendant, in response to the officer’s questions, stated that he was going to a Holiday Inn in Albuquerque to give the car to the owner. The defendant, however, could not name the car’s owner or tell the officer how to get in touch with that owner.

The officer, who retained the driver’s license, the registration, and the title, asked defendant to follow him to the state police office three to four miles away. The officer testified at the suppression hearing that the purpose of the trip was to verify that the car was not stolen and for their “safety and protection” from oncoming traffic. He also testified that he suspected defendant was engaging in other criminal activity aside from the traffic violation, although he was unable to articulate particular facts — other than the deodorizer smell and the unusual combination of automobile license, registration, and title documents— that might give rise to a finding of probable cause. In the few minutes it took to drive to the state police office, the officer received word on his car radio that there were no warrants outstanding against defendant and that the car had not been reported stolen. At the police office, the officer prepared the speeding citation as well as a consent to search form. After issuing the citation and while retaining the car documents, the officer asked defendant to sign the consent form. Defendant signed the form. The search of the car revealed approximately eighty pounds of cocaine underneath the rear seat and in the side wall panels. Defendant claims that the officer detained him for approximately twenty minutes. Defendant was arrested after the search.

Following a suppression hearing, the district court determined that the stop was proper; that the defendant was not free to leave; that the officer was justified in detaining the defendant and exploring the possibility of a stolen car; and thus, that there were reasonable, articulable grounds for detaining defendant for a reasonable length of time to investigate the ownership of the car. The court also determined that the officer had smelled deodorizer in the car; that deodorizers are often used to mask the scent of narcotics; and that those facts, together with the car documentation, gave the officer articulable reasons to suspect that there were narcotics in the ear and to make him want to search the car. It also found that defendant voluntarily and freely executed the consent to search. Nevertheless, the court specifically declined to find that the officer could have searched the vehicle on the basis of the information he had at the scene of the stop. The following exchange on this subject took place between defense counsel and the court:

“MR. BENAVIDEZ: Is the Court finding that the officer could have searched the vehicle with what he had at the scene of the stop?

THE COURT: I did not say that. MR. BENAVIDEZ: Okay.

THE COURT: I did not say that. I said he had reasonable articulable grounds to detain the Defendant briefly and ask him to come back to Moriarty where they could see whether a consent to search could be obtained and, indeed, was obtained. I say he absolutely had grounds to return him to Moriarty in connection with the traffic — not the traffic violation but the ownership of the car and all of the other circumstances.”

R. IV, 9-10.

Defendant contends on appeal that he was seized in violation of the Fourth Amendment, that his consent to search was the product of an unlawful arrest, and that, therefore, the subsequent seizure of the cocaine was unlawful. He concedes that the initial stop for speeding was lawful and that the limited detention for the purpose of issuing a speeding citation was proper. The government does not contest the court’s finding that after the officer stopped defendant he was not free to leave.

Although we asked for and the parties have provided supplemental briefs on whether the New Mexico state police officer had probable cause at the time of the traffic stop either to arrest defendant or search his car, we are unable to discern sufficient facts here to support such probable cause. Cf. Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam) (suspicion based on circumstances common to many innocent travelers did not support probable cause). We do not consider the proper parameters of a drug courier profile because the police officer here specifically denied that he was using any such profile. Instead, the officer stopped the defendant solely because he was speeding. In the course of his roadside conversation with defendant the officer smelled a deodorizer, which the officer said indicated to him that defendant was committing more than just a traffic violation. But the officer could not articulate facts that gave him a more specific cause for suspicion to justify a search. He just had bad intuitions about this driver, which later proved entirely correct.

Part of the officer’s suspicion arose from the unusual combination of a driver bearing a New York driver’s license, in a car with California plates and registered to a California owner, carrying an unsigned title, and headed for a Holiday Inn in Albuquerque to meet with an unknown owner at an uncertain time. We would unduly hamstring police officers if we told them they must turn their back on such bizarre circumstances. These facts obviously raise a reasonable suspicion that the car might be stolen and they warrant detention of a suspect for a reasonable time while the officer checks the car’s ownership. The police officer had a car radio and contact thereby with dispatchers who had instant access to the National Crime Information Center (NCIC) computer records that could quickly resolve, with reasonable certainty, whether there were warrants outstanding against the driver and whether the car had been reported stolen. The officer here availed himself of these modern techniques and received a negative answer to his queries about the car in less time than it took to drive the three to four miles to the station office. Had the officer remained with defendant on the side of the highway, as is customary in routine traffic stops, he could have issued his speeding ticket and obtained all available information about the suspected car theft in a matter of minutes.¹

If the officer still had thoughts that defendant had done something else illegal he could have asked defendant for consent to search the car then and there. See Schneckcloth v. Bustamonte, 412 U.S. 218, 228, 232, 93 S.Ct. 2041, 2048, 2050, 36 L.Ed.2d 854 (1973) (consent searches “may result in considerably less inconvenience for the subject of the search,” and they “normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions.”). Had defendant refused to consent the officer would have been put to the choice of arresting defendant in order to conduct an involuntary search or letting him go. An arrest or search would require facts giving rise to probable cause. We construe the district court’s findings to mean that there was not probable cause for such a search. The government has presented nothing that convinces us this finding was incorrect.² Therefore we must confront whether the officer’s request to have defendant accompany him to the police station, and once there whether his request for consent to search defendant’s car, were acceptable as part of a valid Terry stop detention. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Two recent Supreme Court decisions are dispositive of this question. In United States v. Sharpe, — U.S.-, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), the Court declined to impose any per se rule for the acceptable length of a Terry stop and instead held that the length of the stop must be reasonable under the circumstances. Id. at-, 105 S.Ct. at 1575. We cannot disagree with the district court’s conclusions here that the length of this officer’s stop was reasonable. Although the police officer equivocated about the time elapsed from the initial stop to the incriminating search, it clearly lasted only a short while.

Nevertheless, as the Court specifically noted in Sharpe, it did not have before it any challenge to the reasonableness of the detaining officer’s conduct other than the length of the detention. — U.S. at-, 105 S.Ct. at 1573. Therefore the Court distinguished, but did not discredit, decisions such as United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). See Sharpe, — U.S. at-, 105 S.Ct. at 1573.

Consequently, this case is controlled by another Supreme Court decision released the same day as Sharpe: Hayes v. Florida, — U.S. -, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985), which clarifies the holdings of Dunaway, Royer, Place, and an earlier case, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Hayes involved a challenge to the reasonableness of a Terry detention in which the police officers convinced a person to accompany them voluntarily to the police station to provide fingerprints. Although the officers in Hayes lacked either a warrant or probable cause, one of them indicated that they would arrest Hayes if he refused to come with them. — U.S. at -, 105 S.Ct. at 1645. Hayes chose not to call their bluff. The officers placed him under arrest at the station once they concluded that his fingerprints matched those of their suspect.

The Supreme Court reversed Hayes’ conviction based on the fingerprint evidence, concluding that the officers’ seizure of Hayes was sufficiently like an arrest to require the traditional threshold of probable cause, which it concluded had not been met. Id. at-, 105 S.Ct. at 1645. The Court distinguished Sharpe as a case that did not involve “the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes, whether for interrogation or fingerprinting____” Id. at-, 105 S.Ct. at 1645. The Court held that the line between brief detention and full-fledged arrest is crossed when the police “forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.” Id.

Our case falls directly within Hayes’ ambit. Although the New Mexico police officer did not use physical force to remove defendant from the highway, where defendant had a right to be, he did coerce defendant using means no less forcible than those in Hayes. The officer had defendant’s driver’s license, car registration, and title at the time he “asked” defendant to follow him to the station. As the district court found, defendant had no reasonable choice other than to accompany the officer no matter how polite the officer was in phrasing his request. Thus the officer’s conduct was as coercive as the threat to arrest made in Hayes.

The dissenting opinion would find the officer’s conduct coercing defendant to make the trip to the police office to be reasonable under all of the circumstances. See United States v. Hensley, — U.S. -, -, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985) (balance intrusion on personal security against importance of the governmental interests alleged to justify the intrusion). In so concluding the dissent stresses the compelling governmental interest in detecting illegal drug trafficking, and the lone officer’s predicament at night dealing with two suspects in their car.³ Although not specifically characterized as such, we think the dissent’s approach is an exigent circumstances argument.⁴

We do not believe that suspicion of drug trafficking — not rising to the level of probable cause to arrest — justifies a different Terry stop standard than that appropriate in any situation in which a suspect may be armed. We empathize with the officer’s dilemma when while working alone at night he stops a suspect — or two suspects — in a car in a remote area and has reasonable suspicion that the car may contain contraband. The officer’s natural desire is to conduct a search of the vehicle in the safe environs of a police station in the presence of other officers. But we do not consider the situation of a lone officer, two suspects, or nighttime, or all three together, as constituting exigent circumstances justifying the forced accompaniment to the police station.⁵

Although the cases eschew any attempt to formulate a bright line rule in this area, Hayes nevertheless declared that “the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from ... [a] place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.” — U.S. at-, 105 S.Ct. at 1646. Thus, we understand the Hayes decision as eliminating the option of forcing the suspect to go to the police station from the alternatives available to the officer during an investigative detention. Even if Hayes intended no precise line drawing, we believe it at least required consideration of the other alternatives available to the officer at the time of the stop. This officer had reasonable alternatives to the coerced trip to the police station. He could have called for a backup officer; he could have obtained on the spot a voluntary consent to search and a consent to have the suspects drive their car to a safer location on the highway. These and other readily imaginable alternatives would neutralize the adverse factors of darkness, traffic, and being outnumbered.

We recognize that if there is sufficient attenuation between an illegal detention and a consent to search, the search may be valid despite the prior illegal acts of the officer. See United States v. Recalde, 761 F.2d 1448 (10th Cir.1985). Here neither the government nor the court attempted to establish attenuation. At the time the consent to search form was handed to defendant the officer still had not informed him that he was free to leave, and the officer held defendant’s car registration and apparently the title to the vehicle. Under these circumstances we believe the government cannot establish sufficient separation between its illegal coercive acts and the consent to search to take the product of the search, the cocaine, out of the category of fruit of the unlawful detention. See id. at ---; Hayes, — U.S. at-, 105 S.Ct. at 1645.

Therefore, we reverse the district court’s refusal to suppress the cocaine found in the search of the car that defendant was driving.

REVERSED AND REMANDED.

1 . In New Mexico the officer must notify a violator charged with a minor speeding violation of an option to acknowledge guilt by signing the penalty assessment notice, thereby entitling the violator to pay the predetermined fine by mail within thirty days. N.M.Stat.Ann. §§ 66-8-116, -117, -123. The law, or at least established custom, is that a violator who signs acknowledging guilt and promising to pay by mail is immediately released and not required to go to a state police office.

The New Mexico statutes use the word "arrest” to describe the events that occur when a police officer issues a speeding ticket to a violator. See id. § 66-8-117, -123. Thus, in a technical sense, defendant here was arrested. But, as noted above, the statute defines the narrow scope of this limited purpose arrest and commands that the officer "release [the arrested person] from custody” if he will sign the agreement to appear and accept the citation, unless the offense is one listed in N.M.Stat.Ann. § 66-8-122 that requires an immediate appearance before a magistrate. See id. § 66-8-123(A) & (B). Defendant’s speeding violation was a “penalty assessment misdemeanor” for which such immediate release from custody ordinarily would have been required.

Despite the statute’s use of the words "arrest" and "custody,” when a New Mexico police officer stops a car merely to issue a traffic summons for a minor speeding infraction, we think that for Fourth Amendment purposes that stop is more in the nature of an investigative detention than a traditional arrest. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 332-34, 54 L.Ed.2d 331 (1977) (per curiam) (analyzing reasonableness of police conduct during a traffic stop for driving with expired license plates in terms of Terry v. Ohio); cf. United States v. LeQuire, 424 F.2d 341, 343-44 (5th Cir.1970) (no Miranda warning need be given to person during routine stop for speeding). In Dunaway v. New York, 442 U.S. 200, 209, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979), the Court explained how a Terry stop-and-frisk is a specially limited, sui generis intrusion into a person’s Fourth Amendment rights as compared with a traditional arrest.

Thejdistinction matters here because the label used for constitutional purposes defines the scope of reasonable police conduct incident to such a stop. If such a traffic stop were like a traditional custodial arrest, then as part of the search incident to arrest the apprehending officer could search the entire passenger compartment, see New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981). But if, as we conclude here, the traffic stop only amounts to an investigative detention, the officer's freedom to search is more limited; his motivation for the search must be related to concern for protecting himself or others rather than any concern with preserving evidence. See Michigan v. Long, 463 U.S. 1032, 1049 & n. 14, 103 S.Ct. 3469, 3480 & n. 14, 77 L.Ed.2d 1201 (1983). The government has not argued that such a protective search, conducted at the scene of the original detention, would have revealed the contraband found in the car defendant was using.

2 . The arresting officer testified that in nine previous cases he had smelled deodorizer in automobiles and in all of them he had found drugs. But he did not testify that the smell of deodorizer was an unequivocal signal that led him to believe this car carried drugs. The exchange at this point was as follows:

"Q. [Defense counsel] Well, sir, you were there. I’m asking you now, when you pulled that car over, you got that whiff, as you say, of deodorizer, is that when you — Did you then say to yourself obviously, ‘I may have one here’?

A. [Officer Toler] I’m not saying whether I did or whether I didn’t. It was just an awful strong smell. The thought occurred to me there might be something.

Q. And sitting here right now, are you telling us now, you remember that the thought did occur to you out there on that highway?

A. That there might be something in the vehicle. (Witness nods head affirmatively.)

Q. Well, when you say ‘something,’ you’re talking about drugs.

A. I said something.

Q. Well, did you believe, sir, that there might be something in the vehicle or there might be narcotic drugs in the vehicle?

A. There might be something illegal in the vehicle.

Q. Sir, did you believe there might be something illegal like cigarettes or narcotic drugs? It’s a simple question.

A. I just told you, the only thing that went through my mind was that there might be something illegal in the car, and that’s what you’re asking me, and that’s the thought that went through my head.”

R. Ill, 37-38.

3 . The trial judge, justifying his ruling that the officer’s actions were lawful, stressed the “problems on the side of a very busy interstate freeway.” R. IV, 8-9. But as the dissent notes, the officer testified that the highway traffic was extremely light that night.

4 . In Hayes, the Court ignored United. States v. Hensley's balancing test in favor of prior precedents: "None of our later cases have undercut the holding in Davis that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment." — U.S. at-, 105 S.Ct. at 1646. The Court specifically stated that Hensley and Sharpe do not conflict with this principle. See id. The only exception to this rule that the Court foresaw was the possible existence of exigent circumstances. See Hayes, — U.S. at-n. 3, 105 S.Ct. at 1647 n. 3.

5 . "Exigent circumstances" generally refers to a quite different level of circumstances: imminent danger of death or serious bodily harm, imminent danger of destruction of important property, response to an emergency, or hot pursuit of a fleeing felon. See United States v. Dart, 747 F.2d 263, 267 (4th Cir.1984); United States v. Tabor, 722 F.2d 596, 598 (10th Cir.1983); 2 W. LaFave, Search & Seizure § 6.5 (1978 & Supp.1985).

Although the stop was at night and the officer testified that he required the trip to the state police office for "their safety and protection" from oncoming traffic, we believe that neither the officer nor the trial court made any attempt to justify the action on an exigent circumstances basis.