U.S. v. Toro-Pelaez

• Decision Date: 26 February 1997
• Docket Number: No. 96-3102,TORO-PELAE,D,96-3102
• Citation: 107 F.3d 819
• Parties: 97 CJ C.A.R. 306 UNITED STATES of America, Plaintiff-Appellee, v. Delfin Eduardoefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 819

107 F.3d 819

97 CJ C.A.R. 306

UNITED STATES of America, Plaintiff-Appellee, v. Delfin Eduardo TORO-PELAEZ, Defendant-Appellant.

No. 96-3102.

United States Court of Appeals Tenth Circuit.

Feb. 26, 1997.

Cyd Gilman, Assistant Federal Public Defender, Wichita, KS, for Defendant-Appellant.

David M. Lind, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the brief), Wichita, KS, for Plaintiff-Appellee.

Before EBEL, Circuit Judge, WHITE, ^* Associate Justice (Ret.), and KELLY, Circuit Judge.

PAUL KELLY, Jr., Circuit Judge.

Delfin Eduardo Toro-Pelaez appeals from his conviction for unlawful possession of 200 kilograms of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.

Background

On December 10, 1994, Kansas Highway Patrol Troopers Greg Jirak and Richard Jimerson were stopped in the median of Interstate 70 near WaKeeney, Kansas, facing westbound traffic. They were talking with a trooper in another patrol car which was facing the eastbound traffic. From this vantage point, the troopers observed Mr. Toro as he traveled eastbound in a homemade-flatbed pickup truck. Trooper Jimerson testified that he immediately told his colleagues, "That truck's got a false compartment on it." The troopers decided to get a closer look, and Trooper Jimerson pulled the car into traffic. They caught up with Mr. Toro and followed him for a time, driving in the passing lane next to him.

This opportunity for closer observation "absolutely confirmed [Trooper Jimerson's] suspicion." While driving next to the truck, Trooper Jimerson focused on an unexplained space between the bed of the truck and the bottom of the truck's sidewalls, which indicated to him that the truck had a false bed and a concealed compartment. He also thought that the frame rails on the truck were unusual. Both troopers had prior experience with traffic stops involving vehicles with hidden compartments, and both testified that every hidden compartment they had seen contained contraband or drug residue or proceeds.

The troopers also observed that Mr. Toro was following too closely behind the car in front of him. The troopers timed the distance between the cars, confirmed that a traffic violation was occurring, and pulled Mr. Toro over. Both troopers testified, however, that the reason for the stop was to investigate the possibility that Mr. Toro was transporting drugs in the concealed compartment.

Trooper Jirak approached the truck, told Mr. Toro that he had been stopped for a traffic violation, and obtained his driver's license and registration. Mr. Toro advised that he was coming from Denver, where he had been visiting and working for his brother, who was in the oil business. In fact, Mr. Toro was driving from Los Angeles via Burlington, Colorado, and had no brother in Denver. When Trooper Jimerson examined the truck more closely, he confirmed that it had a concealed compartment.

Trooper Jirak testified that Mr. Toro responded to questions in English, and that although he surmised that English was probably not Mr. Toro's native language, he nevertheless concluded that Mr. Toro was capable of understanding and communicating in English.

Trooper Jimerson joined Trooper Jirak and Mr. Toro in the patrol car, and asked Mr. Toro if the truck contained a concealed compartment. Mr. Toro denied knowledge of such a compartment, and consented to a search. The search revealed five million dollars worth of cocaine (200 kilograms) in the concealed compartment under the truck bed. The troopers informed Mr. Toro that he was under arrest, and advised him of his Miranda rights. Although Mr. Toro did not respond after being read his rights, he did not indicate in any way that he did not understand them, nor did he request an attorney. When Trooper Jimerson asked if he would cooperate, Mr. Toro informed the troopers that he was afraid that his family would be harmed if he did. Mr. Toro subsequently said that he did not wish to incriminate himself and asked for a lawyer. He was not questioned further.

Mr. Toro was charged with unlawful possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The primary issue at trial was whether Mr. Toro had knowledge of the cocaine found in his truck. Mr. Toro testified, and denied knowledge of the cocaine. He told the jury of a person he knew only as Jorge, who had lent him $8,000 and promised him a job as a driver if he moved from New York City to Kansas City, Missouri. Mr. Toro relocated, and purchased a truck. He admitted to several different "white lies" that he told in order to obtain a local address, a Missouri driver's license, and vehicle registration and insurance. In December 1994, Mr. Toro was to drive his first trip for Jorge. He was told to meet Jorge in Los Angeles, but when he arrived, Jorge told him that there had been a delay of a few days and took possession of the truck. When Mr. Toro next saw his truck, the homemade flatbed and sidewalls had been added, but the flatbed was empty. Mr. Toro was told that there was no merchandise to transport, and that he should drive the truck back to Kansas City, park it in a safe place, and Jorge would pick up the truck. En route to Kansas City, Mr. Toro was stopped by the troopers. Mr. Toro testified that he had come to believe that Jorge was responsible for the cocaine found in the hidden compartment of his truck.

The jury found Mr. Toro guilty, and the district court sentenced him to 235 months imprisonment. The court denied Mr. Toro's motion for a new trial.

Discussion

Mr. Toro raises four issues in this appeal. First, he argues that the troopers did not have reasonable suspicion of criminal activity before making the traffic stop. Second, he argues that use of statements he made to the troopers after he was warned of his Miranda rights was a violation of those rights. Third, he argues that the prosecutor violated his right to remain silent by using his silence against him at trial. Last, he argues that the district court erred in denying his motion for a new trial.

I. Reasonable Suspicion

Mr. Toro first argues that the troopers lacked the reasonable suspicion required by the Fourth Amendment to make a traffic stop, and that the district court therefore erred in denying his motion to suppress the evidence of the cocaine discovered in his truck.

A traffic stop is a seizure within the meaning of the Fourth Amendment. For purposes of constitutional analysis, it is characterized as an investigative detention, which requires reasonable suspicion of criminal activity before a seizure can be made, rather than a full custodial arrest, which requires probable cause. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3149-50, 82 L.Ed.2d 317 (1984). Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968), announced a two-pronged inquiry to be used to analyze the reasonableness of an investigative detention. The first prong of the inquiry considers whether the stop was justified at its inception. Id. at 20, 88 S.Ct. at 1879; United States v. Lee, 73 F.3d 1034, 1038 (10th Cir.1996). The second prong of the Terry analysis considers whether the officer's actions during the detention were reasonably related in scope to the circumstances which justified the interference. Terry, 392 U.S. at 20, 88 S.Ct. at 1879; Lee, 73 F.3d at 1038. While the second prong of the Terry inquiry is not a matter of dispute in this appeal, Mr. Toro argues that the stop was not justified at its inception.

Although the troopers determined before pulling Mr. Toro over that he had committed a traffic violation, the government does not rely upon that violation to justify the stop. Indeed, Trooper Jimerson testified that he intended to stop Mr. Toro regardless of whether he committed the traffic violation. Because the traffic violation was not asserted below as a justification for the stop, the stop comported with the Fourth Amendment only if the officers had reasonable suspicion of criminal activity prior to making the stop. United States v. Lambert, 46 F.3d 1064, 1069 (10th Cir.1995); see also Lee, 73 F.3d at 1038 (citing Terry, 392 U.S. at 21, 88 S.Ct. at 1879-80). In this case, the lone fact or circumstance asserted as justification for the stop was the troopers' suspicion, prior to pulling Mr. Toro over, that his truck had a concealed compartment.

In reviewing a district court's decision on a motion to suppress, we accept the factual findings of that court unless they are clearly erroneous. United States v. Foster, 100 F.3d 846, 849 (10th Cir.1996); United States v. Moore, 91 F.3d 96, 97 (10th Cir.1996). We view the evidence in the light most favorable to the district court's findings. Foster, 100 F.3d at 849. Moreover, "the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge." Id. (citing United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.1994)). The ultimate determination of reasonableness under the Fourth Amendment, however, is a question of law which we review de novo. Id. at 849. Mr. Toro appears to challenge both the district court's findings of fact as well as its legal conclusions.

When ruling on a motion to suppress involving factual matters, Fed.R.Crim.P. 12(e) requires a district court to "state its essential findings on the record." See also Fed.R.Crim.P. 41(f). Mr. Toro argues that the district court's order denying the suppression motion provides an insufficient basis for this court's review because it contains no findings regarding the testimony of a witness presented by the defendant. The witness had experience with the design, sale, and installation of truck beds, and the import of his testimony was that the only view which permitted a conclusion that Mr. Toro's truck had a concealed...