United States v. Pedro Pablo Hernandez

55 F.3d 443, 95 Cal. Daily Op. Serv. 3637, 95 Daily Journal DAR 6306, 1995 U.S. App. LEXIS 11195, 1995 WL 296856
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 17, 1995
Docket94-30109
StatusPublished
Cited by17 cases

This text of 55 F.3d 443 (United States v. Pedro Pablo Hernandez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pedro Pablo Hernandez, 55 F.3d 443, 95 Cal. Daily Op. Serv. 3637, 95 Daily Journal DAR 6306, 1995 U.S. App. LEXIS 11195, 1995 WL 296856 (9th Cir. 1995).

Opinions

Opinion by Judge HALL; Dissent by Judge WIGGINS.

CYNTHIA HOLCOMB HALL, Circuit Judge:

We are called upon to decide whether the police used an alleged parking violation as a pretext to search for evidence of an unrelated, more serious offense. We hold that the stop was pretextual and that the district court erred by failing to suppress the fruits of the search.

I.

At the time of the arrest, appellant Pedro Hernandez was on. parole from state prison for a felony drug conviction. He attracted the attention of local police, who were aware of his conviction and suspected that he once •again was involved in illegal drug activity.

Officer Lon Bomar of the Montana Highway Patrol was patrolling Interstate 90 when he noticed Hernandez driving a Chevrolet car on a frontage road parallel to the interstate. Officer Bomar suspected that Hernandez was speeding but could not clock his speed, so he turned off the interstate and followed him on the frontage road.

Officer Bomar spotted Hernandez’s Chevrolet parked on Scott Street, an unpaved street just off the interstate. It was parked behind a Cadillac in which Hernandez and a man later identified as Anthony Kim Martinez were sitting. Both ears were parked on the right hand side of the street, within a foot or two of some bushes growing along the side of the road. The cars were not blocking traffic; plenty of room - remained for other vehicles to pass. Officer Bomar pulled up behind Hernandez’s Chevrolet, turned on his emergency flashers, called for backup, and left his vehicle to investigate. He later testified that he wanted “to see if there was a reason they were parked- on the roadway, or if one of the vehicles had broken down and w[as] in need of assistance.”

Officer Bomar asked Martinez why he was parked there. Martinez said that he and Hernandez had just met to talk. Officer Bomar decided to cite both vehicles for parking violations. He later admitted that he had no other cause to detain or investigate the two men.

[445]*445When officer Bomar’s backup arrived, the officers questioned the two men and searched their vehicles. They found $4,700 in cash, approximately fifteen pounds of marijuana, and a loaded handgun which later turned out to be stolen. They then decided to search Hernandez's residence, where they found ammunition that appeared to match the stolen gun and a substantial amount of cash.

A federal grand jury indicted Hernandez on one count of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2 (Count I), one count of possession with intent to. distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count II), one count of possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count III), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count IV).1

Hernandez moved to suppress the evidence, claiming that the searches violated his Fourth Amendment rights. The district court denied the motion. A jury found him guilty on Counts I and IV. The court sentenced him to 120 months and a supervised release term of four years. He now appeals.

II.

Hernandez contends that the initial stop was illegal because officer Bomar used an alleged parking infraction as a pretext to search for evidence of Hernandez’s drug involvement. He argues that all evidence found during the stop, as well as that later collected at his residence, should have been suppressed as the fruit of an illegal search and seizure. We agree.

We begin our analysis from the premise that our pretextual stop doctrine does not prohibit the use of evidence serendipitously gathered as part of a legitimate traffic stop. Rather, “ ‘[a] pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop.’” United States v. Cannon, 29 F.3d 472, 474 (9th Cir.1994) (quoting United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988)).

Rather than examining the subjective motivations of individual officers, we apply an objective “reasonable officer” test to determine whether a particular stop is pretextual.2 Cannon, 29 F.3d at 475-76 (surveying Ninth Circuit case law and concluding that our pretextual stop doctrine employs an objective test). We focus on the objective facts and ask whether a reasonable officer, given the circumstances, would have, made the stop absent a desire to investigate an unrelated serious offense. Id. at 476; Guzman, 864 F.2d at 1517 (citing United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986)). In making this inquiry, we often find it helpful to determine whether the stop conformed' to regular police practices. See Cannon, 29 F.3d at 476; Guzman, 864 F.2d at 1518 (remanding for determination of whether New Mexico police routinely stop seat belt violators).

[446]*446The government argues that the police would have stopped Hernandez to cite him for a parking violation, even absent a desire to search for contraband. This argument fails because no reasonable officer would have suspected that Hernandez was parked illegally under Montana law.

Hernandez and Martinez were cited for violating Mont.Code Ann. § 61-8-353, which provides, in relevant part:

Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles.

Mont.Code Ann. § 61-8-353(1) (1993) (emphasis added). By its very terms, this provision applies only to vehicles parked on a “highway outside of a business or residence district.” Id. (emphasis added). It does not, in other words, apply to vehicles parked within a business or residence district.

The district court found that Hernandez and Martinez parked their vehicles squarely within a business district as defined by the motor vehicle code.3

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55 F.3d 443, 95 Cal. Daily Op. Serv. 3637, 95 Daily Journal DAR 6306, 1995 U.S. App. LEXIS 11195, 1995 WL 296856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pedro-pablo-hernandez-ca9-1995.