United States v. Olguin , 610 F. App'x 795 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 22, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-2112
(D.C. No. 5:12-CR-01163-RB-1)
THEODORE OLGUIN, (D.N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Theodore Olguin appeals the denial of his motion to suppress evidence found
during a traffic stop. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Around 2:00 a.m. on February 23, 2011, Officer Terry Colwell observed a
vehicle speeding in Artesia, New Mexico. Colwell recognized it as belonging to
Olguin. A few months earlier, Colwell had ticketed Olguin for driving with his front-
side windows tinted to block out more than 80% of incoming sunlight, which is a
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
violation of New Mexico law and of an Artesia ordinance. Colwell testified that he
told Olguin during the previous encounter that he would be ticketed again unless he
drove with his windows down.
After following the vehicle for a few blocks, Colwell testified that he turned
on his spotlight and observed that the front-side windows of the vehicle were rolled
up. Video from Colwell’s patrol car does not show if the windows were up or down.
Colwell turned around in order to pull Olguin over, and activated his emergency
equipment. Olguin drove for a few blocks, then motioned with his hand out his front-
driver-side window that he was pulling over. Olguin later testified that he did not
pull over immediately because he could not see the police car’s lights.
Colwell approached Olguin and asked why his windows were not rolled down.
Olguin replied “because it’s cold out.” Olguin later testified that he rolled his rear-
side windows up after pulling over and that he thought Colwell was asking him why
he had done so. With wind chill, the temperature that night was approximately 20
degrees Fahrenheit. Olguin also testified that he had been driving with his windows
open, despite the cold temperature.
Sergeant Jarod Zuniga, who arrived at the scene after the stop, subsequently
asked Olguin to step out of the vehicle for a pat-down, based on knowledge from
previous encounters that Olguin was usually armed. After Olguin exited the vehicle,
Zuniga found a handgun inside. Olguin was indicted for being a felon in possession
of a firearm. He moved to suppress the evidence found during the stop. The district
court denied his motion, concluding that the stop was justified because Olguin’s
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front-side windows were up, that Colwell’s testimony on this point was credible, and
that Olguin’s was not. These findings were based on four grounds: (1) Colwell’s
testimony; (2) the below-freezing temperature; (3) Olguin’s response (“Because it’s
cold”) to Colwell’s question; and (4) Olguin’s testimony that he initially did not see
Colwell pulling him over. Olguin entered a conditional guilty plea, and timely
appealed.
II
“In reviewing the denial of a defendant’s motion to suppress, we view the
evidence in the light most favorable to the government, accept the district court’s
findings of fact and credibility determinations unless clearly erroneous, and review
de novo the ultimate question of reasonableness under the Fourth Amendment.”
United States v. Benard, 680 F.3d 1206, 1209-10 (10th Cir. 2012).
On appeal, Olguin argues only that the traffic stop was not justified because
his front-side windows were down. A traffic stop is proper at its inception if the
officer conducting the stop has “reasonable articulable suspicion that a traffic or
equipment violation has occurred or is occurring.” United States v. McGehee, 672
F.3d 860, 867 (10th Cir. 2012) (quotation omitted). Whether Colwell had reasonable
suspicion that Olguin was violating the law by driving with his tinted front-side
windows rolled up is an issue of fact that turns on weighing Colwell’s testimony
against Olguin’s. The district court did not clearly err in its credibility finding. It
relied on circumstantial evidence supporting Colwell’s account. No circumstantial
evidence supported Olguin’s account. See United States v. Revels, 510 F.3d 1269,
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1273 (10th Cir. 2007) (explaining that we defer to the district court on the matter of
credibility determinations).
Olguin contends that the circumstances of Colwell’s later dismissal from the
Artesia police force undermine the district court’s credibility finding. Colwell was
involved in a verbal dispute with an assistant district attorney. A subsequent
investigation determined that Colwell lied about the details of the dispute. He was
then fired by the Artesia Chief of Police. The local district attorney sent a “Giglio
letter” to Colwell’s supervisor stating that Colwell’s credibility was irreparably
damaged. See Seifert v. Unified Gov’t of Wyandotte Cnty./Kan. City, 779 F.3d
1141, 1148 (10th Cir. 2015) (citing Giglio v. United States, 405 U.S. 150, 154
(1972)) (discussing common practice of prosecutors informing law enforcement
supervisors that they will not take cases from certain officers due to requirement that
prosecutors disclose past dishonesty by officers to criminal defendants). Colwell was
later exonerated by the state Academy Board, but the district attorney sent another
letter affirming that, regardless of Colwell’s exoneration, she would not accept any of
his cases. Despite learning about Colwell’s credibility problems, the district court, in
denying the motion to suppress, concluded that the circumstances surrounding
Colwell’s termination were irrelevant to whether the stop of Olguin was justified.
We have recognized that information about a law enforcement officer being
disciplined due to dishonesty is “certainly probative of truthfulness.” United States
v. Fuentez, 231 F.3d 700, 705 (10th Cir. 2005); accord United States v. Woodard,
699 F.3d 1188, 1193-95 (10th Cir. 2012). But there is no hard and fast rule that an
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officer found untruthful in one context is automatically not credible in any other.
The officer’s record of not being credible is just one factor, albeit an important one,
for district courts to consider when making credibility findings. As the Supreme
Court has held, when “there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of
Bessemer City, 470 U.S. 564, 575 (1985). There is no reason to conclude that the
district court committed clear error by finding Colwell credible despite his history of
dishonesty. Circumstantial evidence corroborates Colwell’s and not Olguin’s version
of events.
III
The judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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