United States v. Tellez

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 21, 1993
• Docket: 93-8201
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 93-8201 ___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDUARDO SANCHEZ TELLEZ,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court For the Western District of Texas ____________________________________________________ (December 30, 1993)

Before REAVLEY and DAVIS, Circuit Judges, and ROSENTHAL,1 District Judge.

DAVIS, Circuit Judge:

Eduardo Sanchez Tellez appeals his convictions and sentence on

possession of firearms by a convicted felon. We remand for

dismissal of one of the counts and for amendment of the sentence.

I.

In October 1991, at noon, Anthony Detective Arturo Montoya

received information from another police officer that a parole

violator, with whom he was familiar, was driving a black 4 X 4

pickup truck with large tires and a chrome roll bar with attached

lights. Thirty minutes later, Detective Montoya saw a truck

exactly matching this description at a gas station. The driver of

1 District Judge of the Southern District of Texas, sitting by designation. the truck was not the known parole violator, but Detective Montoya

could not identify the passengers he saw in the truck. Detective

Montoya called for back up, and two other units joined him in

stopping the truck as it left the gas station.

Detective Montoya went to the passenger side of the truck,

opened the door and ordered Tellez, the passenger nearest the

passenger door, to get out of the truck so that Montoya could see

the middle passenger. When Tellez did not respond, Montoya reached

in and pulled him out. As he pulled Tellez out, Montoya spotted

the barrels of two guns projecting from underneath the passenger

seat on the floorboard. Another detective who assisted in the stop

recognized Tellez as a convicted felon.

Tellez was charged with two counts, one for each firearm, of

being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922 (g)(1). Defendant filed a motion to suppress the firearms

arguing that neither the stop of the truck nor the seizure of his

person was supported by probable cause or reasonable suspicion and

that therefore the firearms seized thereafter should have been

suppressed as "fruits of the poisonous tree." The government and

Tellez agreed to carry the motion to suppress to trial. A jury

trial was held in January 1993, and the jury found Tellez guilty on

both counts. The court heard arguments on the motion to suppress

and found that the officers had probable cause to stop the truck

and to order Tellez out of the truck to see if the middle passenger

was the parole violator.

The district court sentenced Tellez to concurrent terms of 36

months' imprisonment and three years supervised release on each

2 count of possession of firearms, and imposed a mandatory special

assessment of $100. In this appeal, Tellez primarily challenges

the district court's denial of his motion to suppress. He also

contends that the two-count indictment charging simultaneous

possession of two weapons violates the double jeopardy clause.

II.

On appeal from denial of a motion to suppress, this court

reviews the district court's factual findings under the clearly

erroneous standard, and the district court's conclusions of law de

novo. United States v. Richardson, 943 F.2d 547, 549 (5th Cir.

1991). We must review the evidence in the light most favorable to

the government as the prevailing party. See United States v.

Simmons, 918 F.2d 476, 479 (5th Cir. 1990). The district court's

ruling to deny the suppression motion should be upheld, "if there

is any reasonable view of the evidence to support it." United

States v. Register, 931 F.2d 308, 312 (5th Cir. 1991)(citations

omitted).

Tellez contends that Detective Montoya had no legal basis to

stop the truck nor to seize him, and therefore the rifles, which

were discovered as a result of the stop and seizure, should not

have been admitted into evidence. We address these contentions in

turn.

An officer may conduct a brief investigatory stop of a vehicle

and its occupants, without probable cause, based solely on the

"reasonable suspicion" that the person is engaged, or about to be

engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88

S.Ct. 1868, 1879-80 (1968); United States v. Garcia, 942 F.2d 873,

3 876 (5th Cir. 1991), cert. denied, 112 S.Ct. 989 (1992).

"Reasonable suspicion" is considerably easier for the government to

establish than probable cause. United States v. Wangler, 987 F.2d

228, 230 (5th Cir. 1993). The prosecution must demonstrate a

"minimal level of objective justification for the officer's

actions, measured in light of the totality of the circumstances."

Id. In addition, reasonable suspicion need not be based merely on

personal observation. Id. If based on other information, the

question becomes whether that information possessed an "indicia of

reliability." Id.

Montoya acted on the basis of an outstanding warrant for the

arrest of a known parole violator who had been seen in a truck that

was remarkably similar to the truck in which Tellez was a

passenger. Tellez argues, nonetheless, that the stop of the truck

was not justified under Terry for two reasons: 1) the police did

not have the make, license plate number or year of the vehicle, and

2) the police knew the parole violator was not driving this truck

and had been driving when seen thirty minutes earlier.

The police need not have every identifying characteristic of

a wanted vehicle to make a valid Terry stop. See United States v.

Harrison, 918 F.2d 469 (5th Cir. 1990) (officer who was aware that

an airplane might have brought illegal drugs to rural airstrip at

night made valid Terry stop of a pickup truck in the area driving

without lights soon after airplane left); United States v. Rose,

731 F.2d 1337 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 326

(1984) (Terry stop valid when police were told that bank robbers

might be in yellow Camaro driven by Black female and stopped

4 vehicle matching this description). The description given here, a

black 4 X 4 pickup truck with large tires and a chrome roll bar

with attached lights, was sufficiently specific to justify the

stop.

Also, the fact that the parole violator was not driving this

truck did not preclude a valid Terry stop. Thirty minutes had

passed since the parole violator was seen, and he could have easily

switched places with one of the passengers. The district court did

not err in concluding that Montoya and the other police officers

made a valid Terry stop. They had reasonable suspicion sufficient

to briefly stop the truck to determine whether a known parole

violator who was the subject of an arrest warrant was a passenger

in the truck.2

Tellez next challenges the legality of his seizure. He argues

that even if the police officers made a valid Terry stop of the

truck, they violated his Fourth Amendment rights by pulling him out

of the truck when they knew he was not the known parole violator.

However, the district court found that Montoya ordered Tellez

out of the truck to confirm or deny his suspicion that the middle

passenger was the parole violator. This finding is not clearly

erroneous. Under Terry, the police can generally order a suspect

out of a car after a routine traffic stop. Pennsylvania v. Mimms,

434 U.S. 106, 98 S.Ct. 330 (1977); see also, United States v.

Shabazz, 993 F.2d 431 (5th Cir. 1993) (ordering someone out of a

car is constitutionally permissible when done incident to a lawful

2 Because the stop and search was permissible under Terry, we need not decide if the officers had probable cause to stop the truck.

5 traffic stop); United States v. Hardnett, 804 F.2d 353 (6th Cir.

1986), cert. denied, 479 U.S. 1097, 107 S.Ct. 1318 (1987) (police

conducting valid Terry stop are permitted to order occupants out of

vehicle).

Furthermore, an officer's use of some force does not

necessarily cause an encounter to exceed the scope of Terry.

United States v. Sanders, 994 F.2d 200 (5th Cir.), cert. denied,

114 S.Ct. 408 (1993). The officer has some latitude in formulating

a plan and executing it under these circumstances. As we observed

in Sanders:

When Officer Hambrick arrived on the scene at Cruz's Grocery, he had only a matter of seconds to assess the situation, formulate a plan of action, and implement it. In so doing, he had to balance several competing priorities: to investigate the alleged crime and make any appropriate arrests; to prevent the commission of any additional crime; not to infringe on the rights of [the defendant] or any other persons who might be affected by the officer's actions or inactions; to ensure the safety of others of the general population present or nearby; and to go home in one piece at the end of his shift.

Id. at 207.

The reasonableness of the stop and the force used must,

therefore, turn on the particular facts of each case. Montoya and

the other officers knew that they were entering a potentially

dangerous situation by stopping a truck with three passengers, one

of whom they believed to be a parole violator. We cannot quarrel

with the officer's decision not to go to the front of the truck and

look through the truck's windshield to identify the middle

passenger. This would have forced the officers to place themselves

in a much more vulnerable position than simply requiring the

passengers to get out of the vehicle where the officers could

6 screen the occupants for weapons and guard themselves against

attack. As the Supreme Court pointed out in Terry, it would

certainly "be unreasonable to require that police officers take

unnecessary risks in the performance of their duties." 392 U.S. at

23.

In order to safely determine if the parole violator was in the

truck, it was reasonably necessary to remove Tellez. When he did

not voluntarily exit the vehicle upon request, it was reasonable

for Montoya to remain in a position of relative safety and remove

him so that he could identify the middle passenger.

The district court did not err in denying Tellez's motion to

suppress. Once Detective Montoya's fellow officer identified

Tellez as a convicted felon, the officers had probable cause to

arrest Tellez for his possession of the firearms. The officers

were then authorized to seize the weapons incident to the arrest.

III.

Tellez also contends that the indictment charging him with two

counts under 18 U.S.C. § 922(g)(1) for the simultaneous possession

of two firearms violates the Double Jeopardy Clause. He argues

that this section is based on the status of the offender and not on

the number of guns possessed. The government does not dispute this

contention.

Although his two sentences were ordered to run concurrently,

Tellez was required to pay two $50 special assessments, one on each

count of possessing a firearm. This case is on all fours with

United States v. Berry, 977 F.2d 915, 920 (5th Cir. 1992). We

therefore remand this case to the district court so the government

7 can dismiss one of the counts of conviction and the district court

can amend its sentence.

REMANDED.