U.S. v. Palomino

• Decision Date: 12 November 1996
• Docket Number: No. 93-6364,93-6364
• Citation: 100 F.3d 446
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricardo PALOMINO, Defendant-Appellant
• Court: U.S. Court of Appeals — Sixth Circuit

Page 446

100 F.3d 446

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo PALOMINO, Defendant-Appellant.

No. 93-6364

United States Court of Appeals,

Sixth Circuit

Submitted September 16, 1996

Decided November 12, 1996

On Appeal from the United States District Court for the Western District of Tennessee

Stuart J. Canale (briefed), Assistant U.S. Attorney, Memphis TN, for Plaintiff-Appellee.

Leslie I. Ballin (briefed), Ballin & Ballin, Memphis, TN, Defendant-Appellant.

Before:RYAN, SILER, and BATCHELDER, Circuit Judges.

SILER, Circuit Judge.

Defendant, Ricardo Palomino, appeals his jury conviction for possession with the intent to distribute cocaine. He contends that the district court erred in denying his motion to suppress the evidence. Palomino further argues that the evidence introduced by the prosecution was insufficient to support a finding of guilt. For the reasons that follow, we affirm.

I. Facts

Mark Kellerhall, a patrolman with the Shelby County Sheriff's Department, was conducting a radar check on Interstate 240 around midnight on August 22, 1992. His radar indicated Palomino's car to be travelling at a speed of approximately forty-two miles per hour in a fifty-five miles per hour speed zone. The minimum speed in this area is forty-five miles per hour. Palomino was driving on the left-hand, innermost lane of traffic, and other vehicles were having to pass him in the right-hand lane. After Kellerhall pulled onto the interstate and followed Palomino, he noticed Palomino crossing two lanes of travel without using a signal and also saw Palomino weaving back and forth over the line separating the right-hand lane from the emergency lane. Suspecting that the driver might be intoxicated, Kellerhall pulled him over.

As the driver lowered the window of the car, Kellerhall smelled a strong chemical odor that he associated with ether-based cocaine. Palomino initially claimed ownership of the car and that he was going to visit someone in South Bend, Indiana. Later, Palomino indicated that the vehicle belonged to his aunt and uncle, who were thinking of moving to Indiana, and that he was driving it there for them. Kellerhall asked Palomino to step out of the car and questioned him about drinking, ultimately determining that Palomino was not intoxicated.

Kellerhall requested that Palomino sit in the back of the patrol car while he checked Palomino's license and the registration of the vehicle. Kellerhall discovered that the registration was in order and that Palomino had previously been arrested for a drug offense and money laundering. While Kellerhall was issuing a warning citation, he asked Palomino if he was carrying any illegal goods, drugs, or weapons. When Palomino replied in the negative, Kellerhall asked if he would consent to a search of the car. Palomino signed an English-Spanish consent form. A search of the car revealed eleven kilograms of cocaine secreted in two hidden compartments.

II. Procedural History

Later, Palomino was indicted and convicted for unlawful possession with intent to distribute cocaine in violation of 21 U.S.C. Section(s) 841(a)(1). Before trial, he filed a motion to suppress the cocaine evidence. After a suppression hearing, the district court denied the motion to suppress. Palomino eventually was sentenced to a 121-month prison term.

III. Discussion

A. Suppression of the Evidence

We must accept the findings of fact upon which the district court relied in ruling on a motion to suppress unless those findings are clearly erroneous. United States v. French, 974 F.2d 687, 691 (6th Cir. 1992), cert. denied, 507 U.S. 934 (1993); United States v. Anderson, 923 F.2d 450, 454 (6th Cir.), cert. denied, 499 U.S. 980 (1991). Palomino asserts three grounds for suppression of the cocaine evidence: the initial stop was without probable cause; the subsequent detention and questioning were constitutionally impermissible; and the consent to search was invalid.

1) The Initial Stop

Palomino argues that the evidence must be excluded as the "fruit" of an unreasonable seizure pursuant to Wong Sung v. United States, 371 U.S. 471, 484 (1963). He bases this assertion on a claim that Kellerhall did not have probable cause to stop the vehicle. Under Palomino's view of the case, Kellerhall's articulated reason for the stop -- that Palomino was driving too slowly and weaving in traffic -- was actually a pretextual reason to stop the car to search for drugs. He claims that Kellerhall really stopped the car because Palomino is of Mexican descent and because the car had Texas license plates, two characteristics which fit into the drug courier profile.

Under the test articulated in United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en banc), cert. denied, ________ U.S. ________, 115 S. Ct. 97 (1994), "so long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment." See also Whren v. United States, ______ U.S. _______, ______, 116 S. Ct. 1769, 1772 (1996) (expressly adopting the same test for determining reasonableness of an automobile stop). The district court found, and Palomino conceded in the suppression hearing, that he was travelling approximately forty-two miles per hour in a fifty-five miles per hour speed zone. The court also found that Palomino crossed two lanes of travel at once, was straddling the right lane, and was weaving back and forth between the right lane and the emergency lane. These facts are supported by the testimony of Kellerhall, and although Palomino testified that he used his signals before crossing to the right-hand lanes of traffic, the court's finding that Palomino was driving in an erratic manner is not clearly erroneous. Based on these facts, Kellerhall did have probable cause to believe that a traffic violation had occurred.¹

Ferguson holds that, if there was probable cause, "it is irrelevant what else the officer knew or suspected about the traffic violator at the time of the stop." 8 F.3d at 391. Therefore, even if Kellerhall was motivated by a suspicion that Palomino fit into a drug courier profile, the stop was not unreasonable because probable cause existed. The initial stop did not violate the Fourth Amendment.

2) The Detention and Questioning

Palomino claims that after Kellerhall determined that he was not intoxicated, ran a check on his driver's license and registration, and issued the citation, Kellerhall asked him whether he was carrying any illegal contraband. Palomino asserts that this was an unconstitutional detention and questioning. On the other hand, Kellerhall testified at the hearing that he asked Palomino about illegal contraband while he was issuing the citation. Magistrate Judge Breen credited the testimony of Kellerhall, and an appellate court is obliged to place a good deal of reliance upon the fact-finding capability of the judge who presided at the evidentiary hearing. We therefore accept this finding and conclude that Palomino was not detained any longer than the time necessary for the original purpose of the stop when Kellerhall asked him about the contraband and requested a consent to search. Therefore the brief questioning and request for consent to search were constitutionally permissible.

Although there was no detention beyond that which was necessary to effect the initial purpose of the stop, it is important to address Palomino's constitutional challenge in more detail in light of our recent holding in United States v. Mesa, 62 F.3d 159 (6th Cir. 1995), a case which presented facts similar to those in the instant case. An ordinary traffic stop is analogous to a "Terry stop." Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Even if the initial stop is lawful, any subsequent detention must not be excessively intrusive. In analyzing the reasonableness of a detention, we will consider "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20 (1968). A temporary detention for questioning does not require a showing of probable cause if it is justified by specific and articulable facts that give rise to a reasonable suspicion of criminal activity. Id. at 21. We must consider the totality of the circumstances when determining whether reasonable suspicion was present. United States v. Knox, 839 F.2d 285, 289 (6th Cir. 1988), cert. denied, 490 U.S. 1019 (1989).

Mesa involved a claim that cocaine evidence seized during an automobile search should be suppressed because a police officer allegedly abused his discretion in detaining and questioning the defendant. The officer had pulled the defendant over for speeding. After the warning citation was issued and signed by the defendant, the officer asked the defendant if she had any pistols or drugs in the car. At the time, the defendant was locked in the back seat of the police vehicle and could not voluntarily leave without the assistance of the police officer. When she responded in the negative, the officer asked if he could look around. The defendant signed a consent-to-search form. After an extensive search, the officers discovered a partition in the trunk of the car. At this point, the defendant and her passengers indicated that they wished to leave, but they were not allowed to do so. Id. at 162.

We noted that "[o]nce the purposes of the initial traffic stop were completed, there is no doubt that the officer could not further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention." Id. The government tried to show that reasonable suspicion had arisen based on three grounds: 1) the defendant had told the officer that she was going to visit her grandfather who lived in Kingsport,...