United States v. Tellez ( 1993 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 93-8201
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EDUARDO SANCHEZ TELLEZ,
Defendant-Appellant.
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Appeal from the United States District Court
For the Western District of Texas
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(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
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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,
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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
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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.
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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
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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
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can dismiss one of the counts of conviction and the district court
can amend its sentence.
REMANDED.
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