F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 31, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-7087 (D.C. No. 06-CR-6-RAW ) V ICTO R M A N U EL LO PEZ-G ARCIA, (E.D. Okla.) also known as Victor Ismael Lopez,
Defendant-Appellant.
v. No. 06-7090 (D.C. No. 06-CR-6-RAW ) RO BERTO ANTO NIO TICA S, (E.D. Okla.)
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Roberto Antonio Ticas and Victor M anuel Lopez-Garcia were convicted of
possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A), and 18 U.S.C. § 2. They now appeal their convictions, arguing that
the government improperly struck a potential juror from the venire because she
was Hispanic. M r. Ticas individually argues that his conviction was obtained
with evidence tainted by an unconstitutional search and seizure.
M r. Lopez-Garcia contends there is insufficient evidence to sustain his
conviction. B ecause common facts and issues are presented in the appeals, we
consolidated these cases and treat all arguments in a single order and judgment.
Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
I.
On December 28, 2005, Oklahoma H ighway Patrol simultaneously stopped
two Ford Taurus automobiles on Interstate 40 for speeding. The first Taurus was
brown; the second, blue. M r. Ticas w as driving the first car w hile
M r. Lopez-Garcia was a passenger in the second. Occupants of the vehicles
acknowledged that the two cars were traveling together. M r. Ticas indicated that
M r. Lopez-Garcia was a family member, while his daughter, who rode as a
passenger with him, referred to M r. Lopez-Garcia as a friend. Officers obtained
consent to search both vehicles, and when no contraband was found in the first
car, M r. Ticas was given a written warning and allowed to proceed on his way.
-2- After M r. Ticas left, the officer dealing with M r. Lopez-Garcia walked
around the exterior of the blue Taurus with a drug-sniffing canine. The dog
alerted to the vehicle near the rear passenger door where police discovered a
hidden compartment containing nine bundles of cocaine. The compartment was
located beneath the car, near the rear axle. It was engineered to be opened
electronically, and although wires ran under the carpeting of the car’s interior,
there was no obvious switch in the car. Once officers found the cocaine and
realized the cars were similar and traveling together, they radioed another officer
to again stop the first brown Taurus if it was observed committing a traffic
violation.
Shortly thereafter, Officer Adam W ood located the brown Taurus and saw
it driving too close to a commercial vehicle. On this basis, he stopped the vehicle
a second time. Officer W ood contacted M r. Ticas and decided to write him a
warning for the violation. M eanwhile, Officer Ty Owen, who had conducted the
first stop, arrived on scene and walked around M r. Ticas’s car with a
drug-sniffing dog. As with the blue Taurus earlier, the dog alerted to the rear of
the car where a similar hidden compartment containing eight bundles of cocaine
was discovered. Both M r. Ticas and M r. Lopez-Garcia were arrested and
convicted based on these events.
On appeal, appellants raise one issue jointly and two issues individually.
They both argue the government used a peremptory challenge to improperly
-3- remove a potential juror from the venire based upon her race. M r. Ticas also
claims his Fourth Amendment rights w ere violated because police lacked probable
cause to initiate the second traffic stop. Lastly, M r. Lopez-Garcia challenges the
sufficiency of the evidence upon which his conviction was obtained.
II.
A. Peremptory C hallenge
W e first consider appellants’ contention that the government improperly
removed a prospective juror, M s. M endoza, based on her race. “W e review de
novo whether the [government’s] explanation [for striking a potential juror] is
facially race neutral. W e then review the district court’s ruling that the
[government] did not intend to discriminate under the clearly erroneous standard.”
United States v. Sneed, 34 F.3d 1570, 1580 (10th Cir. 1994) (citation omitted).
The government may not use peremptory challenges to exclude potential
jurors based solely on account of their race. Batson v. Kentucky, 476 U.S. 79, 89
(1986). “H owever, [u]nless a discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race neutral.” United States v.
Davis, 40 F.3d 1069, 1077 (10th Cir. 1994) (quotation omitted).
Here, the government explained that it was striking M s. M endoza because
she was from Stilwell, Oklahoma, appeared to be very young, and had legal
proceedings initiated against her due to problems paying a hospital bill. The
government also indicated that it had “to start with somebody someplace and this
-4- method [of jury selection] require[d it] to get rid of people.” R. Vol. 3, at 100.
Additionally, the government noted that there was no indication that she was
Hispanic, but only that she had retained the name of her former husband.
This explanation is facially valid and race-neutral. See Purkett v. Elem,
514 U.S. 765, 768 (1995) (holding that proffered reason need not be “persuasive,
or even plausible,” but must be facially valid). Although the government did not
elaborate as to why it excluded her because she was from Stilwell or experienced
financial troubles, these reasons do not evince an inherent discriminatory intent.
As for her age, we have held that youth is an acceptable race-neutral justification
for exercising a peremptory strike. Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1019
(10th Cir. 2000). Additionally, the government’s recognition that there was no
indication that M s.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 31, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-7087 (D.C. No. 06-CR-6-RAW ) V ICTO R M A N U EL LO PEZ-G ARCIA, (E.D. Okla.) also known as Victor Ismael Lopez,
Defendant-Appellant.
v. No. 06-7090 (D.C. No. 06-CR-6-RAW ) RO BERTO ANTO NIO TICA S, (E.D. Okla.)
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Roberto Antonio Ticas and Victor M anuel Lopez-Garcia were convicted of
possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A), and 18 U.S.C. § 2. They now appeal their convictions, arguing that
the government improperly struck a potential juror from the venire because she
was Hispanic. M r. Ticas individually argues that his conviction was obtained
with evidence tainted by an unconstitutional search and seizure.
M r. Lopez-Garcia contends there is insufficient evidence to sustain his
conviction. B ecause common facts and issues are presented in the appeals, we
consolidated these cases and treat all arguments in a single order and judgment.
Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
I.
On December 28, 2005, Oklahoma H ighway Patrol simultaneously stopped
two Ford Taurus automobiles on Interstate 40 for speeding. The first Taurus was
brown; the second, blue. M r. Ticas w as driving the first car w hile
M r. Lopez-Garcia was a passenger in the second. Occupants of the vehicles
acknowledged that the two cars were traveling together. M r. Ticas indicated that
M r. Lopez-Garcia was a family member, while his daughter, who rode as a
passenger with him, referred to M r. Lopez-Garcia as a friend. Officers obtained
consent to search both vehicles, and when no contraband was found in the first
car, M r. Ticas was given a written warning and allowed to proceed on his way.
-2- After M r. Ticas left, the officer dealing with M r. Lopez-Garcia walked
around the exterior of the blue Taurus with a drug-sniffing canine. The dog
alerted to the vehicle near the rear passenger door where police discovered a
hidden compartment containing nine bundles of cocaine. The compartment was
located beneath the car, near the rear axle. It was engineered to be opened
electronically, and although wires ran under the carpeting of the car’s interior,
there was no obvious switch in the car. Once officers found the cocaine and
realized the cars were similar and traveling together, they radioed another officer
to again stop the first brown Taurus if it was observed committing a traffic
violation.
Shortly thereafter, Officer Adam W ood located the brown Taurus and saw
it driving too close to a commercial vehicle. On this basis, he stopped the vehicle
a second time. Officer W ood contacted M r. Ticas and decided to write him a
warning for the violation. M eanwhile, Officer Ty Owen, who had conducted the
first stop, arrived on scene and walked around M r. Ticas’s car with a
drug-sniffing dog. As with the blue Taurus earlier, the dog alerted to the rear of
the car where a similar hidden compartment containing eight bundles of cocaine
was discovered. Both M r. Ticas and M r. Lopez-Garcia were arrested and
convicted based on these events.
On appeal, appellants raise one issue jointly and two issues individually.
They both argue the government used a peremptory challenge to improperly
-3- remove a potential juror from the venire based upon her race. M r. Ticas also
claims his Fourth Amendment rights w ere violated because police lacked probable
cause to initiate the second traffic stop. Lastly, M r. Lopez-Garcia challenges the
sufficiency of the evidence upon which his conviction was obtained.
II.
A. Peremptory C hallenge
W e first consider appellants’ contention that the government improperly
removed a prospective juror, M s. M endoza, based on her race. “W e review de
novo whether the [government’s] explanation [for striking a potential juror] is
facially race neutral. W e then review the district court’s ruling that the
[government] did not intend to discriminate under the clearly erroneous standard.”
United States v. Sneed, 34 F.3d 1570, 1580 (10th Cir. 1994) (citation omitted).
The government may not use peremptory challenges to exclude potential
jurors based solely on account of their race. Batson v. Kentucky, 476 U.S. 79, 89
(1986). “H owever, [u]nless a discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race neutral.” United States v.
Davis, 40 F.3d 1069, 1077 (10th Cir. 1994) (quotation omitted).
Here, the government explained that it was striking M s. M endoza because
she was from Stilwell, Oklahoma, appeared to be very young, and had legal
proceedings initiated against her due to problems paying a hospital bill. The
government also indicated that it had “to start with somebody someplace and this
-4- method [of jury selection] require[d it] to get rid of people.” R. Vol. 3, at 100.
Additionally, the government noted that there was no indication that she was
Hispanic, but only that she had retained the name of her former husband.
This explanation is facially valid and race-neutral. See Purkett v. Elem,
514 U.S. 765, 768 (1995) (holding that proffered reason need not be “persuasive,
or even plausible,” but must be facially valid). Although the government did not
elaborate as to why it excluded her because she was from Stilwell or experienced
financial troubles, these reasons do not evince an inherent discriminatory intent.
As for her age, we have held that youth is an acceptable race-neutral justification
for exercising a peremptory strike. Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1019
(10th Cir. 2000). Additionally, the government’s recognition that there was no
indication that M s. M endoza was herself Hispanic demonstrates that appellants
failed to show she was removed as a member of a particular racial group. See
United States v. Joe, 8 F.3d 1488, 1498 (10th Cir. 1993) (“the defendant must
show . . . that the prosecution has exercised peremptory challenges to remove
members of a particular race from the venire”). Therefore, deferring to the trial
court’s unique vantage point, we conclude that the circumstances of this voir dire
do not show purposeful discrimination.
B. Search and Seizure
W e next consider whether the district court correctly denied M r. Ticas’s
m otion to suppress evidence obtained from the second search and seizure. He
-5- contends the evidence from this second stop was tainted because officers had
neither probable cause nor consent to search his vehicle once his initial detention
ended. He further argues that the reason given by officers for initiating the
second stop – following too closely to a commercial vehicle – was mere pretext
and proves their lack of probable cause.
The district court upheld the second stop on two grounds: the first was
M r. Ticas’s traffic violation of following too close to a commercial vehicle; the
second was Officer Owen’s reasonable suspicion that M r. Ticas was in possession
of a controlled substance based on the circumstances of the first stop. As for the
ensuing search, the district court ruled that it was lawful because Officer Owen
had a reasonable belief that M r. Ticas possessed narcotics and the canine alerted
to the car. W e agree.
“W hen reviewing a district court’s denial of a motion to suppress, we view
the evidence in the light most favorable to the government, accepting the district
court’s factual findings unless clearly erroneous. Fourth Amendment
reasonableness is reviewed de novo.” United States v. Guerrero-Espinoza,
462 F.3d 1302, 1305 (10th Cir. 2006) (quotation omitted).
“A traffic stop is a ‘seizure’ within the meaning of the Fourth Amendment,
‘even though the purpose of the stop is limited and the resulting detention quite
brief.’” United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005) (quoting
Delaware v. Prouse, 440 U.S. 648, 653 (1979)). A routine traffic stop, however,
-6- is more analogous to an investigative detention than a custodial arrest. Id.
Consequently, we analyze such stops under the principles articulated in Terry v.
Ohio, 392 U.S. 1 (1968), “asking first whether the officer’s action was justified at
its inception, and second whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.” United States v.
Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998) (internal quotation marks
omitted).
Here, the second stop was plainly justified because it was based on an
observed traffic violation. See United States v. Botero-Ospina, 71 F.3d 783, 787
(10th Cir. 1995) (“a traffic stop is valid under the Fourth Amendment if the stop
is based on an observed traffic violation”). It was also independently valid based
on the totality of the circumstances that gave rise to Officer Owen’s objectively
reasonable suspicion that M r. Ticas was involved in illegal activity. See United
States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993) (“If the officer wishes to
detain the driver for further questioning unrelated to the initial stop, the officer
must have an objectively reasonable articulable suspicion that illegal activity has
occurred or is occurring.”). O fficer Owen knew that M r. Ticas w as driving in
tandem w ith a similar Ford Taurus, that the other car was found with a hidden
compartment containing cocaine, and that M r. Ticas had a close or familial
relationship with an occupant of the other car. These facts gave Officer Owen a
“particularized and objective basis for suspecting” that M r. Ticas’s car also had a
-7- hidden compartment containing narcotics. Bradford, 423 at 1157. This
suspicion, coupled with the canine alert, see United States v. Klinginsm ith,
25 F.3d 1507, 1510 (10th Cir. 1994) (holding that canine alert gives rise to
probable cause), provided ample probable cause to stop and search the vehicle.
The district court was correct to deny the motion to suppress.
C. Sufficiency of the Evidence
Lastly, we consider whether M r. Lopez-Garcia’s conviction is supported by
sufficient evidence. W e review the record de novo to determine whether, viewing
the evidence in the light most favorable to the government, a rational jury could
have found the defendant guilty beyond a reasonable doubt. United States v.
Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006). “W e consider both direct and
circum stantial evidence, together with the reasonable inference to be drawn
therefrom, but do not weigh conflicting evidence or consider the credibility of
witnesses.” Id.
The government was required to prove beyond a reasonable doubt that
M r. Lopez-Garcia (1) possessed the controlled substance; (2) knew he possessed
the controlled substance; and (3) intended to distribute or dispense the controlled
substance. 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).
Under sections 841(a)(1) and (b)(1)(A), possession can be either actual or
constructive. “Constructive possession may be established by circumstantial
evidence and may be joint among several individuals.” United States v.
-8- M cKissick, 204 F.3d 1282, 1291 (10th Cir. 2000) (quotation omitted).
Constructive possession requires that the defendant knowingly have “ownership,
dominion or control over the narcotics and premises where the narcotics are
found.” Id. (quotation omitted). W here the location of the narcotics is jointly
occupied, “the government must present direct or circumstantial evidence to show
some connection or nexus individually linking the defendant to the contraband.”
United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998). There
must be “some evidence supporting at least a plausible inference that the
defendant had knowledge of and access to the contraband.” Id. (alteration and
internal quotation marks omitted).
The evidence submitted at trial sufficiently linked M r. Lopez-Garcia to the
cocaine found in the blue Ford Taurus. Not only was the car registered and
insured under his name, but the evidence created a strong inference that he and
M r. Ticas were using the car in an on-going operation to transport narcotics from
California throughout the country. Indeed, the jury heard testimony that six days
earlier, M r. Ticas and M r. Lopez were stopped in the blue Taurus on Interstate 40
in North Carolina. Prior to that, on November 30, 2005, M r. Lopez-Garcia was
driving the blue Taurus on Interstate 40 near the east Texas border when he was
stopped by Trooper Doug Acker. Trooper Acker testified that M r. Lopez-Garcia
produced insurance documents listing a man named Jorge Hernandez as the owner
of the car and the primary insured. Documents also indicated that
-9- M r. Lopez Garcia shared the same California address as Jorge Hernandez, and the
same Illinois address as M r. Ticas. Significantly, business cards for George
Hernandez were found in both cars, and M r. Lopez-Garcia and M r. Ticas both
testified that they had been operating under the direction of Jorge Hernandez, who
had on this occasion instructed them to drive the cars from Los A ngeles to
Chicago.
Aside from this evidence, direct evidence obtained from the Oklahoma stop
was sufficient to sustain M r. Lopez-Garcia’s conviction. He was a passenger in a
car found to have a hidden compartment containing cocaine. The car was
registered and insured in his name. During the stop, M r. Ticas acknowledged that
he was traveling with M r. Lopez-Garcia, and he was keenly attentive to what was
transpiring between M r. Lopez-Garcia and the officers. M oreover, the drugs were
found in cars traveling in tandem w ith the exact same make and model, the exact
same hidden compartment, containing nearly the exact same quantity of cocaine.
Under the totality of circumstances, the evidence was sufficient to sustain
M r. Lopez-G arcia’s conviction.
The judgment of the district court is AFFIRMED.
Entered for the Court
Deanell Reece Tacha Chief Circuit Judge
-10-