United States v. Hinojos ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
FEB 18 1997
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-5127
SALVADOR HINOJOS, JR.,
Defendant-Appellant,
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 93-CR-33-E)
Submitted on the briefs:
Stephen C. Lewis, United States Attorney and Kenneth P. Snoke, Assistant United
States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.
Stephen J. Knorr, Federal Public Defender and Stephen J. Greubel, Assistant
Federal Public Defender, Tulsa, Oklahoma, for Defendant-Appellant.
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
SEYMOUR, Chief Judge.
Salavador Hinojos, Jr., appeals the district court’s denial on remand of his
motion to suppress evidence seized following a traffic stop. Mr. Hinojos was
convicted of possession of drugs with intent to distribute and of possession of a
firearm during and in relation to a drug offense. He appealed, contending, inter
alia, that the trial court erred in denying his motion to suppress. This court held
the initial stop to be valid, but remanded for further development of the record on
the issue of the validity of additional questioning and detention unrelated to the
stop. See United States v. Hinojos, No. 93-5242, 1996 WL 16823 (10th Cir. Jan.
18, 1996). The district court received additional evidence and again denied the
motion to suppress. Mr. Hinojos appeals and we affirm. 1
Mr. Hinojos was stopped for speeding by Oklahoma highway patrol trooper
Paul Lankster, who was patrolling Interstate 44 in Tulsa County. Trooper
Lankster had previously heard a police broadcast stating that two Hispanic men
were transporting drugs in a teal-colored Chevrolet pickup, and providing the
truck’s tag number. As he continued patrolling, Trooper Lankster saw a speeding
vehicle containing two men approaching him in the eastbound lane. He verified
the speed with radar, made a U-turn and followed the truck, which matched the
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
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vehicle described in the dispatch. After ascertaining that the truck’s Texas tag
number matched that given in the bulletin, Trooper Lankster stopped the truck
and issued a speeding ticket to Mr. Hinojos, who was driving. Mr. Hinojos stated
that he lived in Odessa, Texas, as shown on his driver’s license, and was going to
Illinois to work for a short time. While Trooper Lankster was in the process of
preparing a speeding ticket, he questioned Mr. Hinojos about drug trafficking. He
then asked for and received permission from Mr. Hinojos to search the truck. The
search revealed a gun and a plastic bag containing one half pound of cocaine. A
subsequent tip led to the discovery of twelve pounds of marijuana in the truck’s
spare tire. Mr. Hinojos moved to suppress the results of the search and the
district court denied the motion, ruling that the consent was voluntary. Mr.
Hinojos appealed, contending his consent was tainted because the stop was
pretextual.
At the time of the first suppression hearing, the issue of pretext was
relevant to determining the constitutionality of a traffic stop. See United States
v.Guzman, 864 F.2d 1512, 1517 (10th Cir. 1988). By the time of the first appeal,
however, Guzman had been overruled by United States v. Botero-Ospina, 71 F.3d
783 (10th Cir. 1995) (en banc), under which the presence of pretext no longer
invalidates a traffic stop based upon an observed violation. Accordingly, we held
in the first appeal that the initial stop was valid. We also held that Trooper
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Lankster’s detention and further questioning of Mr. Hinojos was proper only if
justified by the bulletin. We pointed out that a Terry investigation in reliance
upon a police bulletin is justified only if the bulletin itself is based on reasonable
suspicion, see United States v. Hensley, 469 U.S. 221, 232-33 (1985), or is
augmented by independent police corroboration, see Alabama v. White, 496 U.S.
325, 329-32 (1990). The testimony at the first suppression hearing was directed
to the issue of pretext and was therefore not developed on this issue. That
hearing did not reveal the source of the bulletin, describe the contents of the
bulletin in any detail, or provide other information relevant to the reasonable
suspicion inquiry. Consequently, we remanded to allow the district court to
revisit the issue.
On remand, the district court held another hearing, at which Trooper
Lankster testified that the broadcast described the vehicle as a 1992 teal green
Chevrolet pickup truck occupied by two males and carrying a substantial amount
of cocaine. The broadcast further advised that the truck had Texas tags, giving
the tag number, that the truck was traveling from Odessa, Texas, giving the time
that it had left, and that the truck would be heading eastbound on the Turner
Turnpike.
The government also presented testimony from Dorsey Shannon, a former
DEA agent, who had received the information about the truck from Kansas DEA
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Agent Larry Nichols and had in turn asked the Oklahoma Highway Patrol to issue
the bulletin to its troopers. Mr. Shannon testified Agent Nichols told him the
information had come from an informant who had direct detailed knowledge
about the truck, its illegal contents, and the names of its occupants. Mr. Shannon
recalled that the basis of the informant’s information was direct observation. Mr.
Shannon testified that “my sense of it was that [Agent Nichols] believed the
information was very reliable and I don’t know if that was because the informant
was claiming firsthand knowledge or whether it was based on some working
relationship. I assumed it was based on a working relationship because he was
getting the information by telephone from someone who was removed from
Wichita, Kansas.” Rec. vol. III at 16.
In Alabama v. White, 496 U.S. 325, the Supreme Court addressed the
standard for determining when an informant’s tip can provide reasonable
suspicion. The tip in that case is very similar to the bulletin received by Trooper
Lankster here; it described a vehicle in detail, identified the driver and her point
of origin and destination, and stated that she would be in possession of drugs.
See id. at 327. The tip in White was anonymous and the Court pointed out that an
anonymous tip alone can rarely provide the reasonable suspicion necessary for a
Terry stop because it seldom demonstrates the informant’s honesty, reliability or
basis of knowledge. See id. at 329. Significantly, the Court held that an
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anonymous tip such as the one at issue there would not be sufficient to support a
Terry stop without corroboration. Id. at 329-31. As in White, the tip here
identified only the vehicle, its occupants, its origin and direction of travel. White
compels the conclusion that if the tip in this case had been given to DEA Agent
Nichols in Kansas anonymously, it would not be sufficient to support reasonable
suspicion without corroboration.
The record reveals little about Agent Nichols’ receipt of the tip because
Agent Nichols did not testify. Mr. Shannon, who received the information from
Agent Nichols and passed it on to the Highway Patrol, testified Agent Nichols
told him the informant’s information was based upon personal observation. Mr.
Shannon further testified he felt Agent Nichols believed the information to be
reliable. In addition, Mr. Shannon assumed the informant and Agent Nichols had
a working relationship because the informant’s tip was based on direct
observation, presumably in Texas, and phoned in to Agent Nichols in Kansas.
Mr. Shannon apparently believed an anonymous tipster would not phone a tip in
to a Kansas agent about illegal activity observed in Texas. The district court did
not decide whether, in light of the additional evidence presented at the second
hearing, the tip itself provided reasonable suspicion, ruling instead that the tip
had been sufficiently corroborated by Trooper Lankster. We agree with this
conclusion.
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Even if the tip standing alone were not reliable enough to establish
reasonable suspicion, Trooper Lankster corroborated the reliability of the
information. Reasonable suspicion is to be determined by considering the
“‘totality of the circumstances--the whole picture.’” White, 496 U.S. at 330(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)).
Thus, if a tip has a relatively low degree of reliability, more
information will be required to establish the requisite quantum of
suspicion than would be required if the tip were more reliable. . . .
[We must take] into account the facts known to the officers from
personal observation, and giv[e] the anonymous tip the weight it
deserve[s] in light of its indicia of reliability as established through
independent police work.
Id. Although the corroboration here was supplied by the officer who relied on the
bulletin rather than the officer who received the tip and initiated the bulletin, we
have held under the “fellow officer” rule that law enforcement officers may pool
their information and that reasonable suspicion is to be determined on the basis of
the collective knowledge of all the officers involved. See United States v.
Morgan, 936 F.2d 1561, 1569 (10th Cir. 1991). This rule applies to an officer’s
corroboration of information received by radio dispatch. See United States v.
Cutchin, 956 F.2d 1216, 1217-18 ( D.C. Cir. 1992).
In White, the Court held that the anonymous tipster’s description of the car,
its occupant, and its location were not significant indicia of reliability in
themselves because they were facts existing at the time the tip was called in that
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anyone could have observed. They therefore did not show that the tipster had
inside information about the presence of illegal activity. However, the Court did
find significant the fact that the caller predicted the future conduct of the subject
of the tip. 496 U.S. at 331-32. It was the tipster’s ability to predict future
behavior that demonstrated inside information and familiarity with the subject’s
affairs, and thus demonstrated reliability.
In the instant case, in addition to providing a detailed description of the
vehicle and its occupants, the tip also predicted that the truck would leave
Odessa, Texas, at a particular time and travel eastbound through the Tulsa area.
Trooper Lankster observed that Mr. Hinojos’ truck matched the description in the
bulletin, and that Mr. Hinojos was acting as the bulletin had predicted. In our
view, this corroboration provides adequate additional indicia of reliability,
especially when considered together with the testimony concerning the source of
the tip.
Accordingly, we AFFIRM Mr. Hinojos’ conviction.
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