United States v. Beltran-Lugo , 245 F. App'x 834 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 28, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-3279
v. (D. Kansas)
A RCHY BELTR AN -LU G O , (D.C. No. 05-CR-10228-W EB)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, M cKA Y, and M cCO NNELL, Circuit Judges.
I. Introduction
Defendant-Appellant Archy Beltran-Lugo was charged in a superseding
indictment with drug and immigration crimes. Beltran-Lugo moved to suppress
evidence obtained during a search of her Ford Explorer, arguing the initial traffic
stop was not supported by reasonable articulable suspicion and the subsequent
search of the vehicle w as not supported by probable cause. The district court
denied Beltran-Lugo’s motion. She entered a conditional guilty plea and was
*
This order and judgment is not binding precedent except under the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.
sentenced to eighty-four months’ incarceration. Beltran-Lugo now appeals the
district court’s denial of her motion to suppress. Exercising jurisdiction pursuant
to 28 U.S.C. § 1291, this court affirm s the district court’s ruling.
II. Background
On November 21, 2005, Kansas Highway Patrol Trooper John Rule was
patrolling highway I-70 in Ellis County, Kansas. As Rule traveled west, he
passed a white Ford Explorer w ith Arizona specialty license plates traveling east.
He noticed the rear of the Explorer was raised a little higher than normal and the
inside of the rear wheel well was “extremely dark” and appeared to be freshly
undercoated. Based on his training and prior experience with Explorers and other
sport utility vehicles, Rule suspected the white Explorer had a false compartment.
Specifically, Rule testified that when a false compartment is added to a vehicle,
the rear is elevated slightly from what is normal for that particular vehicle.
Rule turned his patrol car around in the median and began to follow the
Explorer in the eastbound lanes. As he closed the distance between himself and
the Explorer, Rule passed an eastbound Ford Escape which had the same specialty
Arizona license plate as the Explorer. Rule testified the plate w as “a very rare
tag” to see on I-70 in w estern Kansas.
W hen Rule caught up with the Explorer, he moved to the passing lane and
maneuvered his patrol car so the passenger side window was even with the rear
wheel well of the Explorer. From this vantage point, he testified he was able to
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look deeper into the w heel well to examine it more closely. Rule saw fresh
undercoating and what appeared to him to be a false floor compartment. Based
on these observations, Rule decided to conduct a traffic stop and question the
driver. H e testified,
I was up basically even with the vehicle. I backed off behind, getting
ready to stop the vehicle. And as I was backing off behind the
vehicle, I observed another patrol car parked on the right shoulder
with a truck stopped. And at that time I backed completely off–I
don’t know–maybe six to eight car lengths behind the Explorer,
attempting to give the driver of the Explorer room to move over, as is
required by law [Kan. Stat. Ann. § 8-1530(b)(1)], to keep from
hitting the other trooper. And I waited and that vehicle never came
over. W e passed the other trooper that was parked on the shoulder.
Shortly thereafter, I activated my emergency lights and conducted a
traffic stop.
Rule approached the passenger side of the vehicle and asked the driver, Beltran-
Lugo, for her driver’s license and title to the vehicle. Beltran-Lugo provided
Rule with a driver’s license from M exico and told him she was traveling from
Arizona to Kansas City. In response to Rule’s questioning, Beltran-Lugo twice
denied she was traveling in tandem w ith the Ford Escape. Rule testified he
disbelieved Beltran-Lugo because he was confident she was traveling with the
driver of the Escape. 1 According to Rule, individuals smuggling drugs often have
escort vehicles traveling with them and, when asked, they often deny traveling
together. His conclusion was also based on his observation that the specialty
1
Trooper Steven Harvey conducted a traffic stop on the Ford Escape,
arresting the driver, Eder Zamudio-Carillo. A false compartment in the Escape
contained cocaine and heroin.
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license plates on the two vehicles w ere not only identical, but sequentially
numbered. He testified he believed the “odds of them not being together would
be astronomical.”
Rule then stepped to the rear of the Explorer, looked underneath, and
confirmed the vehicle had a false floor running the length and width of the rear
cargo area. Rule testified he had seen other vehicles w ith false compartments
built the same way, with the same dimensions, and in his experience those
com partments w ere used to haul contraband. Rule arrested Beltran-Lugo. He
then ran his drug-detecting dog around the outside of the Explorer. The dog also
entered the Explorer and Rule testified it “went to the rear of the vehicle and
began indicating by scratching.”
The Explorer was tow ed to the K ansas Highway Patrol Office in H ays,
Kansas, where Rule opened the false compartment and found twenty-three
kilograms of cocaine. Beltran-Lugo was charged in a superseding indictment
with one count of possession with the intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1); one count of
possession with the intent to distribute more than one kilogram of heroin, in
violation of 21 U.S.C. § 841(a)(1); one count of travel in interstate commerce to
promote an unlawful activity, in violation of 18 U.S.C. § 1952(a)(3); and one
count of unlawful entry into the United States by an alien, in violation of 8 U.S.C.
§ 1325(a)(1). Beltran-Lugo filed a motion to suppress the evidence seized during
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the search of her vehicle. The district court held a hearing on Beltran-Lugo’s
motion, listening to testimony from Trooper Rule, Orlando M artinez, an
investigator for the Federal Public Defender’s Office, and Ronald Dehart, an
individual with thirty-two years of auto body repair experience. The district
denied Beltran-Lugo’s motion, concluding the initial stop of the Explorer was
reasonable. The district court further concluded that Trooper Rule had probable
cause to believe the Explorer contained a false compartment containing
contraband and that Beltran-Lugo was committing a criminal offense.
Accordingly, the district court ruled the arrest of Beltran-Lugo and subsequent
search of the Explorer were reasonable under the Fourth Amendment. Beltran-
Lugo entered a conditional guilty plea, preserving her right to appeal the denial of
her motion to suppress. After she w as sentenced to eighty-four months’
imprisonment, she brought this appeal.
III. Discussion
W hen reviewing a district court’s denial of a motion to suppress evidence,
this court considers the totality of the circumstances, views the evidence in the
light most favorable to the Government, and accepts the court’s factual findings
unless clearly erroneous. United States v. Stephenson, 452 F.3d 1173, 1176 (10th
Cir. 2006). “The witnesses’s credibility and the weight to be given evidence,
together with all inferences and conclusions draw n from the evidence, are matters
within the province of the district judge.” Id. The ultimate determination of
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reasonableness under the Fourth Amendment, however, is a question of law
reviewed de novo. Id.Beltran-Lugo’s first challenge to the district court’s ruling focuses on the
justification for the traffic stop. See United States v. Cline, 349 F.3d 1276, 1286
(10th Cir. 2003) (stating the first step in our review of the constitutionality of a
traffic stop focuses on “whether the officer’s action was justified at its inception”
(quotation omitted)). The district court concluded the stop was proper on two
separate and independent grounds: (1) Rule’s observations led him to reasonably
conclude the Explorer may contain a false compartment and (2) without regard to
Rule’s actual subjective motivation in conducting the stop, at the time he initiated
the stop he had observed Beltran-Lugo comm it a traffic violation. In support of
its alternative ruling, the district found as follow s:
Rule noticed in the distance ahead another Highway Patrol vehicle
stopped on the right shoulder with its emergency lights flashing. The
other KHP vehicle was being operated by Trooper Steve Harvey, who
had stopped a semi-trailer and was conducting a commercial vehicle
inspection. Trooper Harvey’s car was about a half-mile or a mile
ahead when Rule first saw it. Rule dropped back behind the Explorer
to give it room to move over into the left-hand lane away from
Trooper Harvey’s car. Rule dropped back six or eight car-lengths
and gave the driver of the Explorer sufficient time and room to move
over, but she remained in the right-hand lane adjacent to Harvey’s
vehicle as she passed by that vehicle.
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Beltran-Lugo does not challenge the district court’s finding that she failed to
move to a non-adjacent lane when she passed Trooper Harvey’s patrol car. 2 Nor
does she challenge the district court’s conclusion that her failure to switch lanes
gave Trooper Rule objectively reasonable articulable suspicion that she had
violated Kan. Stat. Ann. § 8-1530(b)(1). See United States v. Callarman, 273
F.3d 1284, 1287 (10th Cir. 2001) (“W hile either probable cause or reasonable
suspicion is sufficient to justify a traffic stop, only the lesser requirement of
reasonable suspicion is necessary.”). Her argument, instead, centers on Rule’s
subjective motivation for conducting the stop, the first basis upon which the
district court concluded the stop was reasonable. She asserts the initial stop of
her vehicle was improper because it is unreasonable to believe Rule saw
modifications to her vehicle consistent with the construction of a false
compartment while the two vehicles were traveling seventy miles per hour on the
highway. Relying on her misreading of an opinion from the Seventh Circuit, she
asserts the subsequent traffic violation cannot be used to justify the stop because
facts that arose after Rule first decided to pull her over “are irrelevant to the
question of whether reasonable suspicion existed.” Appellant Reply Brief at 11.
2
In her suppression motion, Beltran-Lugo argued she was unable to move to
the non-adjacent lane because Trooper Rule’s vehicle was in that lane at the time
she passed Trooper Harvey. The district court, however, found there was “no
credible evidence that the conditions were such that M s. Beltran could not have
safely m oved her vehicle to the left lane as she passed by Trooper Harvey.” On
appeal, Beltran-Lugo does not renew her challenge to the circumstances
surrounding the traffic violation.
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The insurmountable problem with Beltran-Lugo’s argument is that this
court has previously rejected it. In United States v. Cervine, we held that once an
officer observes a defendant commit a traffic violation, any prior subjective
motivations he had for conducting a traffic stop have no bearing on whether the
stop was reasonable under the Fourth Amendment. 347 F.3d 865, 870 (10th Cir.
2003); see also W hren v. United States, 517 U.S. 806, 813 (1996) (“Subjective
intentions play no role in ordinary, probable-cause Fourth Amendment
analysis.”). A traffic stop is reasonable under the Fourth Amendment if a police
officer has a reasonable articulable suspicion the driver has committed a traffic
violation. Callarman, 273 F.3d at 1287; United States v. Ozbirn, 189 F.3d 1194,
1197 (10th Cir. 1999). Thus, once Trooper Rule observed Beltran-Lugo commit
the traffic violation by failing to move to the non-adjacent lane, the subsequent
stop of her vehicle was justified.
Regardless of the propriety of the initial stop, Beltran-Lugo alternatively
argues Trooper Rule did not have probable cause to search her vehicle. “Probable
cause to search a vehicle exists if, under the totality of the circumstances, a fair
probability exists that the vehicle contains contraband or other evidence which is
subject to seizure under the law.” Stephenson, 452 F.3d at 1177 (quotation
omitted). Probable cause is evaluated by examining the historical facts viewed
from the perspective of an objectively reasonable police officer. Ornelas v.
United States, 517 U.S. 690, 696 (1996).
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In United States v. Jurado-Vallejo, this court considered whether evidence
of a hidden compartment alone may provide probable cause to search a vehicle.
380 F.3d 1235, 1238 (10th Cir. 2004).
W hether probable cause to search a vehicle can be based on evidence
of a hidden compartment depends on two factors: (1) the probative
value of the evidence–that is, the likelihood that there really is a
hidden compartment; and (2) the likelihood that a vehicle with a
hidden compartment would, in the circumstances, be secreting
contraband.
Id. Beltran-Lugo only disputes whether the first part of this test was met, arguing
the undercoating and jagged edge on the metal panel of the Explorer’s wheel well
were insufficient to warrant a person of reasonable caution to believe the Explorer
contained a false compartment. She relies primarily on the testimony of her
expert, Ronald D ehart, w ho has repaired five to six hundred Ford Explorers. At
the suppression hearing, Dehart was shown photographs of Beltran-Lugo’s
vehicle. He acknowledged the vehicle had excessive undercoating but testified
that was not unusual. W hen asked about the rough edge on the inner wheelhouse
panel, Dehart testified its appearance was consistent with a sloppy repair job and
that he would not have suspected it was part of a hidden compartment. On cross-
examination, however, he admitted he had not personally examined Beltran-
Lugo’s vehicle and conceded he did not have experience detecting false
compartments in vehicles.
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Based on the testimony presented at the suppression hearing, the district
court specifically found that after speaking to Beltran-Lugo, Trooper Rule
visually inspected the rear of the Explorer and saw a panel wall with a jagged
edge that was not factory-installed. The alteration to the panel wall was virtually
identical to modifications Rule had previously seen on Ford Explorers to which
hidden compartments had been added. Rule also observed the area was covered
in a heavy layer of fresh undercoating which he reasonably inferred was an
attempt to disguise the modification to the panel wall. Further, Rule believed
Beltran-Lugo had lied when she denied traveling with another vehicle. This
belief was supported by his observation that both vehicles bore the same specialty
license plates which were sequentially numbered. Rule’s conclusion was based
on his experience that drug smugglers often travel in tandem w ith escort vehicles
but deny this when asked.
These findings amply support the conclusion that Trooper Rule had
probable cause to believe Beltran-Lugo’s vehicle contained a hidden compartment
containing contraband. See U nited States v. Ledesma, 447 F.3d 1307, 1316 (10th
Cir. 2006) (“The ultimate question is w hether the facts and circumstances w ithin
the officers’ knowledge . . . are sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or is being committed.”
(quotations omitted)). Notwithstanding Beltran-Lugo’s assertions, Dehart’s
testimony is not inconsistent with this conclusion. Dehart’s visual observations
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were identical to those of Trooper Rule and Dehart conceded he had no
experience detecting false compartments. Because the search of Beltran-Lugo’s
vehicle was supported by probable cause, it was reasonable under the Fourth
Amendment.
IV. Conclusion
The judgment of the district court denying Beltran-Lugo’s m otion is
affirm ed.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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