United States v. Pina , 386 F. App'x 792 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
July 14, 2010
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-5014
(D.C. No. 4:08-CR-00106-TCK-1)
LUIS ALBERTO PINA, (N.D. Okla.)
Defendant-Appellant.
_______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-5057
(D.C. No. 4:08-CR-00106-TCK-2)
ERI LAJARA, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Luis Alberto Pina and Eri Lajara pled guilty to possessing more than five
kilograms of cocaine with intent to distribute. They reserved the right to appeal
from the denial of their motions to suppress and now argue the court erred in
denying those motions. We affirm. 1
I.
On May 5, 2008, an Oklahoma state highway trooper, Ty Owen, stopped a
vehicle with Florida license plates on Interstate Highway 44 in Creek County,
Oklahoma, for failing to signal a lane change when entering a toll plaza. Pina
was driving; Lajara was the passenger. To avoid traffic, Owen approached the
vehicle on the passenger side. In speaking to the occupants he observed an
activated radar detector, several cell phones, eye drops, food wrappers, trash and
a single key in the ignition. Pina produced his license upon Owen’s request.
Owen said he intended to issue Pina a written warning for the traffic violation and
asked Pina to accompany him to his patrol car. Owen and Pina entered Owen’s
patrol car approximately two minutes after the stop.
In the patrol car, Owen began to write the warning ticket and engaged with
Pina in conversation. Pina asked Owen about the traffic violation and Owen
explained it to him. Owen asked Pina about the ownership of the vehicle and the
identity of the passenger. Owen also asked Pina about his travel plans. At that
point, Pina became “very fidgety, nervous, kind of wrenching his hands. His legs
1
Our jurisdiction derives from 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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were bouncing. And when we began to talk, he would not make eye contact.”
(R. Vol. II at 24.) Pina said he was traveling from Florida to Springfield,
Missouri, which Owen found odd given the most direct route “would not normally
include Interstate 44.” (Id.) Owen testified Pina “seemed to be making up the
story as he went. I even asked him at one time, so you’re going to St. Louis?
You know, even after he had told me Springfield. And he said, yes, I’m going to
St. Louis for two days . . . . ” (Id. at 25.)
After approximately six to seven minutes, Owen returned to the vehicle to
obtain the registration from Lajara. While doing so, he asked Lajara about his
travel plans. Lajara told him they had been in Las Vegas, Nevada, for a couple of
days, and were bound for Joplin, Missouri. This made more sense to Owen but
was inconsistent with Pina’s story. Owen returned to the patrol car with the
registration and asked Pina about Las Vegas. Owen testified “[it] was very
evident to me that [Pina] knew that I knew that they had given conflicting stories.
He was real vague on Las Vegas.” (Id. at 28.) He then called dispatch to
determine the status of the vehicle registration and to check Pina’s driver’s
license and criminal history. While he was waiting for the information from
dispatch, he deployed his K-9 “[t]o run an air sniff of the vehicle” because he was
suspicious of criminal activity. (Id. at 30.) Approximately twelve minutes had
elapsed since the initial stop.
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When Owen and the dog approached the vehicle, Owen instructed Lajara to
remain inside the vehicle, roll up the window and turn off the engine. He
explained:
I [did] it for not only officer safety, but [Lajara’s] safety and my
dog’s safety. . . . If [my dog] is in the odor of narcotics, he would
jump in [the window]. So I could not let the window stay down and
take a chance on my dog jumping in, who’s an aggressive dog, and
either biting or doing something to the passenger. The reason . . .
[to] turn the vehicle off, [is] not only for my safety . . . I’m standing
outside there with no protection and a dog leash in my hand[,] [but]
[i]f [the passenger] jumps over into the driver’s side, I don’t want
him throwing it in gear and running over me or leaving the scene.
(Id. at 50-51.)
The dog alerted to the presence of narcotics after approximately two
minutes. Owen performed a pat-down search of Pina and Lajara and moved them
to a grassy area away from traffic. A subsequent search of the vehicle revealed a
false compartment built into the floorboard behind the driver’s seat. Inside the
compartment, officers located seven bundles of cocaine with a net weight of
6.9 kilograms.
Pina and Lajara were indicted on one count of possessing five or more
kilograms of cocaine with intent to distribute and aiding and abetting the same.
Lajara filed a motion to suppress arguing, rather summarily, “[t]he stop and
search . . . was illegal.” (Id. Vol. I at 21.) Pina filed a motion to suppress
challenging (1) “the length and scope of his detention after the Trooper initiated
the stop” and (2) “the illegal search and seizures.” (Id. at 38.) Following a
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hearing, the court denied Pina and Lajara’s motions. Pina and Lajara then entered
into plea agreements with the government pursuant to which they pled guilty to
the charges against them and reserved their right to appeal from the denial of their
motions to suppress. Pina was sentenced to 120 months imprisonment; Lajara
85 months.
II.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures[.]” U.S. Const. amend. IV. “A traffic stop is a ‘seizure’ within the
meaning of the Fourth Amendment, even though the purpose of the stop is limited
and the resulting detention quite brief.” United States v. Bradford, 423 F.3d
1149, 1156 (10th Cir. 2005) (quotations omitted). To determine whether a traffic
stop was reasonable, “we make a dual inquiry, asking first ‘whether the officer’s
action was justified at its inception,’ and second ‘whether it was reasonably
related in scope to the circumstances which justified the interference in the first
place.’” Id. (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)).
Neither Pina nor Lajara dispute the legality of the initial stop; instead they
challenge their subsequent detention. They contend:
After determining that the alleged traffic infraction only merited
a traffic warning to the driver . . . the officer delayed . . . while
he embarked on a line of questioning unrelated to the purpose of
the original stop, ordered Mr. Lajara to turn off the engine, roll up
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the windows and . . . then deployed his canine to search for
contraband . . . .
(Lajara’s Opening Br. at 9.) 1 The district court concluded Owen did not
unreasonably prolong the detention. 2
In reviewing the denial of a motion to suppress, we accept the factual
findings of the district court unless they are clearly erroneous. The
ultimate determination of reasonableness under the Fourth
Amendment, however, is a question of law which we review de novo.
We view the evidence in the light most favorable to the district
court’s determination.
Bradford, 423 F.3d at 1156 (citations omitted).
“It is well-established that a law enforcement officer conducting a routine
traffic stop may request a driver’s license and vehicle registration, run a computer
check, and issue a citation.” Id. (quotations omitted). An officer may also ask
questions related or unrelated to the initial purpose of the stop so long as “those
questions . . . do not unreasonably extend the amount of time that the subject is
detained.” United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir.
2006) (quotations omitted). “A seizure that is justified solely by the interest in
issuing a warning ticket to the driver can become unlawful if it is prolonged
beyond the time reasonably required to complete that mission.” Illinois v.
Caballes, 543 U.S. 405, 407 (2005).
1
Pina makes a similar argument. (See Pina’s Opening Br. at 10.)
2
Alternatively, the court concluded the detention was justified because
Owen had reasonable suspicion of criminal activity.
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Lajara acknowledges Owen “never actually issued the warning” to Pina.
(Lajara’s Opening Br. at 10.) He contends, however, that Owen “unreasonably
prolonged [his] seizure beyond the time required to complete [the] mission [of
issuing a warning ticket].” (Id. at 11.) Viewing the facts in the light most
favorable to the government, we see no indication of unreasonable delay.
After he obtained Pina’s driver’s license, Owen asked Pina to accompany
him to his patrol vehicle so he could complete the written warning. He began to
write the warning ticket and conversed with Pina about the traffic violation,
ownership of the vehicle, and Pina’s travel plans. This conversation took between
four and five minutes. Owen then returned to the vehicle to obtain the
registration papers and, while doing so, asked Lajara about his travel plans.
He contacted dispatch upon returning to the patrol vehicle and deployed his dog
while awaiting the information from dispatch–approximately twelve minutes after
the initial stop. 3
We upheld a detention of similar length and scope in United States v.
Patterson, 472 F.3d 767 (10th Cir. 2006). In that case, a police officer stopped a
van for traveling above the posted speed limit. Id. at 772. The officer asked the
driver of the van, Patterson, to accompany him to his patrol car while the
passenger remained in the back seat of the van. In the patrol car, the officer
3
There is no evidence Owen asked dispatch to delay providing the requested
information.
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informed Patterson he intended to issue him a warning citation. He asked
Patterson for proof of his registration and insurance and when Patterson stated
those documents were in the van, he returned to the van. The officer questioned
both Patterson and the passenger about their travel plans and discussed “a wide
variety of topics” with Patterson. Id. Approximately six minutes after the initial
stop, the officer radioed to dispatch for a records check. Another officer then
arrived on the scene with a drug detection dog who walked around the stopped
van. After receiving a response from dispatch, the first officer completed the
warning citation. At the same time Patterson was signing the citation, the dog
alerted to the presence of narcotics. The dog alerted two more times and a search
of the van ultimately revealed a hidden compartment containing 67 pounds of
cocaine. Id. at 773.
On appeal, Patterson challenged the district court’s denial of his motion to
suppress. We considered “whether the detention prior to the alert was
unreasonable” applying “common sense and ordinary human experience.”
Id. at 776 (quotations omitted). We noted Patterson was detained for a period of
13 minutes and 27 seconds prior to the alert. Id. We held the activities
undertaken by the officers “clearly . . . fit reasonably within the scope of the
detention.” Id. at 777. And we rejected Patterson’s argument that “[the] timeline
indicates that [the first officer] was dragging his feet throughout the stop in order
to give [the second officer] time to arrive and run [his dog] around the van.” Id.-8-
We explained: “Viewing the evidence in the light most favorable to the
government . . . it is clear that [the first officer] acted reasonably.” Id.Pina and Lajara contend a different result is warranted here because Owen
asked Lajara to close the window and turn off the vehicle before he walked his
dog around the vehicle. We disagree. While we recognize the possibility an
officer’s instruction to close a window or turn off an engine could be seen as an
unreasonable exercise of dominion and control in some circumstances, 4 we agree
with the district court that these requests were reasonable here. As the court
explained: “There’s no reason for that car to be running while this search is going
on with a passenger inside the car. It would be very simple for the passenger to
move over and take off[.]” (R. Vol. II at 74.) And Owen testified he instructed
Lajara to close the window in order to prevent his dog–an aggressive dog–from
jumping in the window and potentially causing harm to Lajara. 5 Considering
Owen’s instructions in the light of “common sense and ordinary human
experience,” United States v. Sharpe, 470 U.S. 675, 685 (1985), they did
4
This would be particularly relevant if Pina and Lajara’s consent were at
issue. We have recognized that consent must be given without implied or express
duress or coercion, see United States v. Sanchez, 89 F.3d 715, 719 (10th Cir.
1996), but consent is not at issue here.
5
Moreover, had the dog jumped into the window, the search may have
violated Pina and Lajara’s privacy interest. See United States v. Winningham,
140 F.3d 1328, 1330-31 (10th Cir. 1998) (affirming the district court’s grant of a
motion to suppress where officers opened a vehicle door through which a dog
jumped during a canine sniff).
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not unreasonably or unnecessarily prolong the detention. Like the detention at
issue in Patterson, Pina and Lajara’s detention was reasonable in scope and
duration. 6
We AFFIRM the district court’s denial of the motions to suppress.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
6
We need not address the government’s alternative argument that Owen’s
questioning of Pina and Lajara did not violate the Fourth Amendment because he
had reasonable suspicion of criminal activity. See Bradford, 423 F.3d at 1156-57(“After the purpose of the traffic stop is completed, further detention for purposes
of questioning unrelated to the initial stop is impermissible unless: (1) the officer
has an objectively reasonable and articulable suspicion that illegal activity has
occurred or is occurring, or (2) the initial detention has become a consensual
encounter.”).
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