United States v. G. Ortiz-Monroy ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3944
United States, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas
Guadalupe Ortiz-Monroy, *
*
Appellant. *
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Submitted: May 12, 2003
Filed: June 11, 2003
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Before WOLLMAN and BEAM, Circuit Judges, and NANGLE,1 Senior District
Judge.
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NANGLE, Senior District Judge.
Defendant Guadalupe Ortiz-Monroy (“Monroy”) appeals the district court’s
denial of his suppression motion and of a sentence reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1. We affirm.
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The HONORABLE JOHN F. NANGLE, Senior United States District
Judge for the Eastern District of Missouri, sitting by designation.
At 10:41 p.m. on the evening of February 26, 2002, Deputy Jeff Smith of the
Crawford County Arkansas Sheriff’s Department (“Deputy Smith”) observed a Ford
Expedition traveling eastbound on I-40 within a car length of a passenger car.
Through experience and training, Deputy Smith was aware that drug traffickers often
use two vehicles traveling in close proximity to transfer drugs, a “load” vehicle
followed by a “decoy” vehicle. Deputy Smith followed the two vehicles for a few
miles and observed that the second vehicle, the Expedition, had an expired California
license tag. When the passenger car swerved across the center line, Smith stopped
the Expedition. The passenger car continued traveling East.
In the Expedition were two men who were shaking and appeared nervous.
They denied that they had been following anyone. Based on a criminal history check
showing that the driver had a prior drug trafficking conviction and on suspicions
raised by the driver’s statements about the trip, Deputy Smith asked for and obtained
consent to search the Expedition. Deputy Smith’s drug dog “alerted” to all four tires.
Deputy Smith also noted that the spare tire was missing from under the vehicle, and
found a small spare tire inside the Expedition.
The Expedition and its tires were searched for drugs but none were found.
Believing the Expedition to be a decoy vehicle and the passenger car to be the load
vehicle carrying drugs, Deputy Smith radioed for other officers to locate the load
vehicle. Deputy Smith described the load vehicle as a little green car or little green
Ford.
At approximately 11:40 p.m., Officer Justin Phillips (“Officer Phillips”)
checked the rest area on the eastbound side of I-40 and saw a dark blue Chevrolet
Beretta with California tags which was parked illegally. Officer Phillips saw a man,
later identified as Monroy, standing by the rear of the Beretta. As Officer Phillips
approached the car, Monroy got into the driver’s seat. When Officer Phillips shined
his spotlight on the car, Monroy peered at him through the back windshield, then
disappeared from sight.
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When Officer Phillips reached the driver’s side of the car, he observed Monroy
lying reclined in the driver’s seat with his eyes closed, pretending to be asleep.
Officer Phillips knocked on the car window a few times, and then Monroy opened the
window. Officer Phillips asked Monroy–who was shaking and sweating–if he was
okay, and Monroy said yes. Officer Phillips asked Monroy if he spoke English and
Monroy said, “a little.”
When Officer Phillips asked to see Monroy’s driver’s license, Monroy said that
he did not have one and handed Officer Phillips a California identification card.
When Monroy told Officer Phillips that he was going to California, Officer Phillips
responded that Monroy had been headed in the opposite direction and asked if he was
lost. Monroy did not respond. Officer Phillips asked Monroy how long he had been
in the rest area, and Monroy claimed to have been there for two to three hours.
Officer Phillips noticed that the hood and driver’s side tire were both warm, and that
Monroy had a cell phone in the vehicle but no luggage. At this point, Officer Phillips
determined that Monroy’s vehicle was the load vehicle sought by Deputy Smith.
Officer Phillips returned to his patrol car and proceeded to run a check on
Monroy’s identification card. Officer Phillips saw Monroy “bobbing up and down”
in the car and called for backup. Officer Phillips then approached the car again and
asked why Monroy was so nervous. Officer Phillips asked whether there was
anything illegal in the car, and Monroy produced a kitchen knife from under the
driver’s seat.
Officer Phillips asked Monroy for consent to search the car for illegal
substances or other contraband and explained to Monroy why he was requesting
permission to search, noting Monroy’s lack of luggage and travel in the wrong
direction to California. Monroy got out of the car and consented to a search. Officer
Phillips found a very heavy tire inside the trunk, which did not match the tires on the
car. Monroy said, “that’s not my tire.” Officers Philips and Harris found cocaine
inside the tire. The officers arrested Monroy and read him his Miranda rights.
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Monroy repeated that the tire did not belong to him, and then stopped talking.
Monroy was indicted for possession with intent to distribute 500+ grams of a
mixture containing cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii).
Monroy entered a plea of not guilty and filed a motion to suppress evidence of the
cocaine seized from his car. After holding a suppression hearing, the magistrate
judge recommended that the suppression motion be denied. The district court
accepted the magistrate’s recommendation and denied Monroy’s suppression motion.
Monroy appeals that denial.
With respect to a suppression motion, we review the district court’s
conclusions of law de novo and its factual findings for clear error. United States v.
Booker, 269 F.3d 930, 931 (8th Cir. 2001). First, we find that Officer Phillips’s
encounter with Monroy did not implicate the Fourth Amendment because it was
consensual. See United States v. Perez-Sosa, 164 F.3d 1082, 1084 (8th Cir. 1998) (no
seizure of individual when officer approaches and “requests identification, as long as
the officer does not convey that compliance is required.”); United States v. Jones, 990
F.2d 405, 408 (8th Cir. 1993) (Fourth Amendment is not implicated when “officers
merely approach and question a person, as long as the account is consensual in nature
and does not involve coercion or restraint of liberty.”). We find no error in the
court’s finding that Monroy willingly engaged in conversation with Officer Phillips
and consented to the search of his car. Because Monroy’s entire encounter with
Officer Phillips was consensual, it was outside the ambit of the Fourth Amendment
and did not constitute an unlawful seizure.
Alternatively, we find that Officer Phillips’s encounter with Monroy was an
investigatory stop and thus excepted from the Fourth Amendment’s requirement that
seizure be made pursuant to a warrant or predicated on probable cause. See Terry v.
Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889 (1968)). A Terry
investigatory stop allows an officer briefly to detain a citizen if the officer has a
reasonable suspicion that “criminal activity may be afoot.” Id., 392 U.S. at 30, 88
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S. Ct. at 1884. As a reviewing court, we must look at the totality of the circumstances
to determine whether Officer Phillips had a “particularized and objective basis” for
suspecting legal wrongdoing. See United States v. Arvizu, 534 U.S. 266, 273, 122
S. Ct. 744, 750, 151 L. Ed. 2d 740 (2002).
In forming a basis for suspicion, officers may “draw on their own experience
and specialized training to make inferences from and deductions about the cumulative
information available to them that ‘might well elude an untrained person.’” Id., 534
U.S. at 273, 122 S.Ct. at 751(quoting United States v. Cortez, 449 U.S. 411, 418, 101
S. Ct. 690, 66 L. Ed. 2d 621 (1981)). Similarly, an officer may rely on information
provided by other officers and all the information known to a team of officers
involved in the investigation to provide justification for a stop. U.S. v. Robinson, 119
F.3d 663, 666-67 (8th Cir. 1997). While “an officer’s reliance on a mere hunch is
insufficient to justify a stop, the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.” Arvizu, 534 U.S. at 274, 122 S.Ct. at 751
(internal quotation marks and citation omitted).
After examining the record, we conclude that at the time Officer Phillips made
contact with Monroy at the rest area, he had a reasonable suspicion that Monroy was
involved in criminal activity based upon the following. Monroy’s car was parked
illegally. His car fit the general description of a dark colored passenger car traveling
with the Expedition. Both the Expedition and Monroy’s car had California tags. A
drug dog had alerted to the tires on the Expedition, indicating that drugs had been
present at some time. Based on his training and experience, Deputy Smith knew that
drug transporters often travel in tandem. Monroy’s location at a rest stop on I-40,
East of where the Expedition had been stopped, was consistent with him waiting for
the Expedition. Monroy got into the car and pretended to be asleep immediately upon
seeing Officer Phillips. Taken together, these factors created a reasonable suspicion
that Monroy was involved in illegal activity and justified Officer Phillips’s detention
of Monroy in order to investigate.
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Once a lawful stop has occurred, officers are entitled to conduct an
investigation “reasonably related in scope to the circumstances which justified the
interference in the first place.” United States v. Cummins, 920 F.2d 498, 502 (8th
Cir. 1990) (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879); see United States v.
Jones, 269 F.3d 919, 924 (8th Cir. 2001). Here, the scope of Officer Phillips’s
investigatory stop was strictly tied to and justified by the circumstances. Officer
Phillips’s request for identification and an explanation of Monroy’s presence at the
rest stop were “minimally intrusive.” See United States v. Dawdy, 46 F.3d 1427,
1430 (8th Cir. 1995); United States v. White, 81 F.3d 775, 778 (8th Cir. 1996).
During their initial exchange, Officer Phillips noticed Monroy’s furtive and
suspicious behavior. He noted that Monroy did not have a valid driver’s license and
provided seemingly false information about his destination and how long he had been
at the rest area. Based on Monroy’s erratic behavior, Officer Phillips came to believe
that Monroy was driving the load vehicle. By requesting Monroy’s consent to search
his vehicle, Officer Phillips conducted his investigation in “a diligent and reasonable
manner.” See United States v. Sharpe, 470 U.S. 675, 687, 105 S. Ct. 1568, 1576, 84
L. Ed. 2d 605 (1985). Finally, as discussed above, Monroy consented to the search of
his vehicle. We therefore affirm the district court’s denial of Monroy’s suppression
motion.
Monroy also appeals the district court’s refusal to grant him an acceptance of
responsibility reduction. We review the sentencing court’s decision to award or deny
an acceptance of responsibility reduction for clear error. See United States v. Ervasti,
201 F.3d 1029, 1043 (8th Cir. 2000). We give great deference to the factual
determinations of the district court and reverse a finding only if it is so clearly
erroneous that it lacks foundation. See United States v. Ngo, 132 F.3d 1231, 1233
(8th Cir. 1997). The fact that Monroy repeatedly insisted during the sentencing
hearing that he had no knowledge of the drugs in the vehicle, did not know who
placed them there and was not paid or hired to transport them supports the district
court’s finding that he had not accepted responsibility. We conclude that the district
court did not err in finding that Monroy’s conduct was inconsistent with an
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acceptance of responsibility and in denying a reduction under U.S.S.G. § 3E1.1.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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