Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 11, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2136 (D.C. No. 1:21-CR-00559-JCH-1) ELOY ROMERO, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, SEYMOUR, and EBEL, Circuit Judges. _________________________________
During a traffic stop, police learned that Eloy Romero had a suspended driver’s
license and that the car he was driving was uninsured. Because Mr. Romero could not
legally drive the car away from the stop, police made the decision to impound the car and
began performing an inventory search. During that search, officers looked inside a
backpack, finding a safe, and looked inside the safe, finding a gun and a large quantity of
drugs. After an unsuccessful motion to suppress the evidence found in the backpack, Mr.
Romero was convicted at trial of federal gun and drug charges. This appeal seeks to
reverse the district court’s decision to deny Mr. Romero’s motion to suppress.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 2
Mr. Romero argues on appeal that the police officers were required to allow him
to remove his backpack from the car before the inventory search. Because this is an
argument he failed to present to the district court, we hold that Mr. Romero waived the
issue and we therefore affirm his conviction.
I. Background1
On the night of February 25, 2021, an Albuquerque police officer noticed a
white Toyota Camry driving strangely. The car drove into a motel parking lot, circled
twice, and then drove across the street to a largely empty restaurant parking lot. The
car parked and a man, later identified as Mr. Romero, got out and began crawling
around under the steering column with a flashlight. Believing that Mr. Romero might
be trying to fix an ignition wire in a stolen car, the officer shared his observations
with a detective, who ordered marked units in the area to stop the car, which had left
the parking lot.
After two failed efforts to get Mr. Romero to pull over by using lights and
sirens, officers succeeded on their third attempt when Mr. Romero pulled over on the
side of a road. By this point, officers knew the car’s registration was suspended;
generally, this is an indication that the car is not insured. When asked for his license,
insurance, and registration, Mr. Romero handed the officer a Social Security card.
Asked again for his registration and insurance, Mr. Romero responded that the car
belonged to his friend.
1 The Court limits its recounting of the factual background to facts relevant to the issues on appeal. 2 Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 3
Mr. Romero was then asked to step out of the car, and an officer patted him
down. Mr. Romero told officers he had stopped to change a fuse under the dash, and
the absence of damage to the steering column led officers to conclude that the stop no
longer concerned a potential auto theft. Nonetheless, the car’s lack of insurance
meant that police were going to tow the car away at some point. Mr. Romero’s
further admission that his license was suspended for failure to pay child support only
reinforced the fact that he could not legally drive the car away at the end of the
encounter with police.
Approximately five minutes into the traffic stop, and after police had
established Mr. Romero’s license suspension and lack of insurance, a police officer
began to perform an inventory search of the car. He picked up, handled, and looked
inside a backpack before turning to talk to Mr. Romero. The officer asked Mr.
Romero if the stuff in the car belonged to him. Mr. Romero indicated that most of it
did. Holding the backpack, unzipping it, and reaching inside it, the officer asked if
the backpack belonged to him. Mr. Romero said no and speculated that the backpack
belonged to a friend. The officer then removed a safe from the backpack, and Mr.
Romero also denied ownership of the safe. The safe opened without a code, and the
officer found within it a gun and pills.
Based on finding the gun and pills, the officers decided to seal the car and seek
a search warrant. Mr. Romero was cited for traffic and motor-vehicle violations, and
officers drove him home. Three business days later, police applied for and received a
3 Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 4
search warrant for the car, where they found a firearm, methamphetamine, heroin,
and fentanyl pills.
Mr. Romero was ultimately charged with possessing methamphetamine and
fentanyl with an intent to distribute under 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and (B),
and with possessing a firearm in furtherance of a drug trafficking crime under 18
U.S.C. § 924(c). Mr. Romero moved to suppress the evidence resulting from his stop,
arguing that officers lacked reasonable suspicion to stop him, that they arrested him
without probable cause, and that they impounded his car both in violation of
Albuquerque Police Department’s (APD) procedures and without an appropriate
community-caretaking justification. Mr. Romero further argued that even if the
impoundment itself was justified, the associated inventory search was unlawful
because it was not conducted in accordance with APD procedures on vehicle searches
incident to arrest, and because it was pretextual. The district court rejected these
arguments and denied Mr. Romero’s motion. He was subsequently convicted at trial.
This appeal followed.
II. Analysis
Federal Rule of Criminal Procedure 12(b)(3)(C) establishes that a motion to
suppress evidence must be made before trial. Federal Rule of Criminal Procedure
12(c)(3) establishes that the consequence of not making a timely motion under Rule
12(b)(3) is that the motion is waived. See, e.g., United States v. Anderson, 62 F.4th
1260, 1265–66 (10th Cir. 2023).
4 Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 5
Accordingly, “[w]hen a motion to suppress evidence is raised for the first time
on appeal, we must decline review.” United States v. Brooks, 438 F.3d 1231, 1240
(10th Cir. 2006). We have also held that this applies “not only to the failure to make
a pretrial motion, but also to the failure to include a particular argument in the
motion.” United States v.
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Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 11, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2136 (D.C. No. 1:21-CR-00559-JCH-1) ELOY ROMERO, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, SEYMOUR, and EBEL, Circuit Judges. _________________________________
During a traffic stop, police learned that Eloy Romero had a suspended driver’s
license and that the car he was driving was uninsured. Because Mr. Romero could not
legally drive the car away from the stop, police made the decision to impound the car and
began performing an inventory search. During that search, officers looked inside a
backpack, finding a safe, and looked inside the safe, finding a gun and a large quantity of
drugs. After an unsuccessful motion to suppress the evidence found in the backpack, Mr.
Romero was convicted at trial of federal gun and drug charges. This appeal seeks to
reverse the district court’s decision to deny Mr. Romero’s motion to suppress.
* 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. Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 2
Mr. Romero argues on appeal that the police officers were required to allow him
to remove his backpack from the car before the inventory search. Because this is an
argument he failed to present to the district court, we hold that Mr. Romero waived the
issue and we therefore affirm his conviction.
I. Background1
On the night of February 25, 2021, an Albuquerque police officer noticed a
white Toyota Camry driving strangely. The car drove into a motel parking lot, circled
twice, and then drove across the street to a largely empty restaurant parking lot. The
car parked and a man, later identified as Mr. Romero, got out and began crawling
around under the steering column with a flashlight. Believing that Mr. Romero might
be trying to fix an ignition wire in a stolen car, the officer shared his observations
with a detective, who ordered marked units in the area to stop the car, which had left
the parking lot.
After two failed efforts to get Mr. Romero to pull over by using lights and
sirens, officers succeeded on their third attempt when Mr. Romero pulled over on the
side of a road. By this point, officers knew the car’s registration was suspended;
generally, this is an indication that the car is not insured. When asked for his license,
insurance, and registration, Mr. Romero handed the officer a Social Security card.
Asked again for his registration and insurance, Mr. Romero responded that the car
belonged to his friend.
1 The Court limits its recounting of the factual background to facts relevant to the issues on appeal. 2 Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 3
Mr. Romero was then asked to step out of the car, and an officer patted him
down. Mr. Romero told officers he had stopped to change a fuse under the dash, and
the absence of damage to the steering column led officers to conclude that the stop no
longer concerned a potential auto theft. Nonetheless, the car’s lack of insurance
meant that police were going to tow the car away at some point. Mr. Romero’s
further admission that his license was suspended for failure to pay child support only
reinforced the fact that he could not legally drive the car away at the end of the
encounter with police.
Approximately five minutes into the traffic stop, and after police had
established Mr. Romero’s license suspension and lack of insurance, a police officer
began to perform an inventory search of the car. He picked up, handled, and looked
inside a backpack before turning to talk to Mr. Romero. The officer asked Mr.
Romero if the stuff in the car belonged to him. Mr. Romero indicated that most of it
did. Holding the backpack, unzipping it, and reaching inside it, the officer asked if
the backpack belonged to him. Mr. Romero said no and speculated that the backpack
belonged to a friend. The officer then removed a safe from the backpack, and Mr.
Romero also denied ownership of the safe. The safe opened without a code, and the
officer found within it a gun and pills.
Based on finding the gun and pills, the officers decided to seal the car and seek
a search warrant. Mr. Romero was cited for traffic and motor-vehicle violations, and
officers drove him home. Three business days later, police applied for and received a
3 Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 4
search warrant for the car, where they found a firearm, methamphetamine, heroin,
and fentanyl pills.
Mr. Romero was ultimately charged with possessing methamphetamine and
fentanyl with an intent to distribute under 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and (B),
and with possessing a firearm in furtherance of a drug trafficking crime under 18
U.S.C. § 924(c). Mr. Romero moved to suppress the evidence resulting from his stop,
arguing that officers lacked reasonable suspicion to stop him, that they arrested him
without probable cause, and that they impounded his car both in violation of
Albuquerque Police Department’s (APD) procedures and without an appropriate
community-caretaking justification. Mr. Romero further argued that even if the
impoundment itself was justified, the associated inventory search was unlawful
because it was not conducted in accordance with APD procedures on vehicle searches
incident to arrest, and because it was pretextual. The district court rejected these
arguments and denied Mr. Romero’s motion. He was subsequently convicted at trial.
This appeal followed.
II. Analysis
Federal Rule of Criminal Procedure 12(b)(3)(C) establishes that a motion to
suppress evidence must be made before trial. Federal Rule of Criminal Procedure
12(c)(3) establishes that the consequence of not making a timely motion under Rule
12(b)(3) is that the motion is waived. See, e.g., United States v. Anderson, 62 F.4th
1260, 1265–66 (10th Cir. 2023).
4 Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 5
Accordingly, “[w]hen a motion to suppress evidence is raised for the first time
on appeal, we must decline review.” United States v. Brooks, 438 F.3d 1231, 1240
(10th Cir. 2006). We have also held that this applies “not only to the failure to make
a pretrial motion, but also to the failure to include a particular argument in the
motion.” United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir. 1991).
Mr. Romero made no mention of his theory that he was entitled to exclude the
backpack from an inventory search in either his initial motion in the district court, or
in his reply to the government’s response. He first raised this issue on appeal. At no
point in the proceedings before this Court has Mr. Romero asserted that there is good
cause for this Court to consider his new argument, notwithstanding its untimeliness.
Absent any evidence for good cause, we decline to find it here.
Mr. Romero also argues on appeal that the search was pretextual. To the
extent this argument is not predicated on the assertion that the backpack could have
been removed, thus preserving the argument, we are not persuaded the officers were
acting solely for investigative purposes. See United States v. Trujillo, 993 F.3d 859,
871 (10th Cir. 2021).
Having found Mr. Romero’s primary argument waived and other argument
without merit, we decline to disturb any of the district court’s holdings or review any
outstanding issues not reached by the district court.
5 Appellate Case: 23-2136 Document: 81-1 Date Filed: 02/11/2025 Page: 6
III. Conclusion
Mr. Romero has presented the Court with an argument made for the first time
on appeal for the suppression of evidence and has made no showing of good cause to
justify his untimeliness. Accordingly, we decline to consider his appeal and uphold
his conviction.
Entered for the Court
Stephanie K. Seymour Circuit Judge