U.S. v. Sanchez-Valderuten

• Decision Date: 09 December 1993
• Docket Number: No. 93-4022,SANCHEZ-VALDERUTE,D,93-4022
• Citation: 11 F.3d 985
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor Raulefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 985

11 F.3d 985

UNITED STATES of America, Plaintiff-Appellee, v. Victor Raul SANCHEZ-VALDERUTEN, Defendant-Appellant.

No. 93-4022.

United States Court of Appeals, Tenth Circuit.

Dec. 9, 1993.

Loni F. DeLand of McRae & DeLand, Salt Lake City, UT, for defendant-appellant.

Richard D. McKelvie, Asst. U.S. Atty. (Richard D. Parry, U.S. Atty., David J. Schwendiman, Asst. U.S. Atty., Kevin L. Sundwall, Sp. Asst. U.S. Atty., on the brief), Salt Lake City, UT, for plaintiff-appellee.

Before LOGAN, SEYMOUR and MOORE, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Victor Raul Sanchez-Valderuten appeals from the district court's judgment after his conditional guilty plea to possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 841(b)(1)(A). Defendant argues that the district court erred in denying his motion to suppress cocaine found in a search of his vehicle after he was stopped for speeding. He asserts the initial stop was pretextual, the detention following the stop was unreasonable, and his consent to the search was not free and voluntary. Defendant also contends he received ineffective assistance of counsel at his suppression hearing.

I

On November 6, 1991, defendant was traveling east on I-70 through Sevier County, Utah, in an El Camino automobile. Sevier County Deputy Phil Barney was running radar and observed the vehicle traveling seventy-one m.p.h. in a sixty-five m.p.h. zone. Barney turned on his lights and stopped the vehicle for speeding. Barney's car was equipped with a fixed video camera that automatically recorded the stop. ¹ The videotape, which we have viewed, was introduced as evidence at the suppression hearing and is part of the record on appeal.

After stopping the vehicle, Officer Barney testified that he approached the driver's side and "[a]s [he] walked up and was there at the driver's door, [he] immediately smelled very heavy smell of air freshener-type smell and then coffee." App. D at 16. Barney stated that this smell is used by persons smuggling marijuana or cocaine to "kill the smell of the drugs." Id. Thus, "[a]s soon as [Barney] smelled the coffee and the really heavy air freshener, [he] suspected there were drugs in the vehicle." Id. at 21.

Barney asked defendant for his driver's license and vehicle registration. Defendant produced a valid New York state driver's license and a Washington state registration in the name of Victorino Sanchez, with another name handwritten in pencil on the form. Barney then asked defendant about his travel plans. Defendant "said he was going to New York and he kept saying that he was moving his family to the State of Washington. Also [he talked] about being a musician, he seemed to evade the answer of actually where he was coming from." Id. at 18-20. Barney testified that it would be unusual for someone traveling from New York to Washington state to travel I-70, because it is a more southerly route.

During this conversation Barney spoke to defendant in English, although it was apparent that defendant did not speak fluent English. Barney testified that "we could understand each other," although he had "no way of knowing whether [defendant] fully understood" him. Id. at 36. Barney repeated some questions and occasionally used hand gestures to communicate.

Following the conversation about defendant's travel plans, Barney retained defendant's driver's license and registration and asked defendant whether he had any guns. Defendant replied no, and Barney then asked defendant whether he had any "marijuana" or "cocaine." Addendum to Appendix at 12:53. When defendant said "no," Barney asked if he could look in the vehicle, and gestured toward the inside of the vehicle. Defendant replied "okay." App.D at 21; Addendum to Appendix at 12:54.

Deputy Barney began to check out the compartment behind the seat, because he noticed it appeared to be much larger than in a standard El Camino. He felt what he thought to be a door. Barney then asked defendant about the smell of coffee grounds; although this was about eight or nine minutes after he testified he first smelled coffee, he asked defendant about it at this point "[j]ust to see his reaction." App.D. at 27. Although Barney stated that defendant did not respond to the question, the videotape indicates defendant said "I drink." Addendum to Appendix at 12:59. Defendant removed a bag from behind the spare tire, and opened it on his own initiative.

Barney then radioed and telephoned the Sheriff's Office and various officials in an attempt to obtain a telephonic search warrant. He also continued to examine the vehicle. About twenty minutes after the stop began, Barney asked defendant "how much cocaine?" Addendum to Appendix at 1:09. Defendant replied "no." Id. Barney then patted defendant down, and asked him in English and in Spanish if he had any money--"dinero?" Id. Defendant did not respond, and Barney took money from defendant's pocket and from his wallet. Defendant said "I play music," apparently explaining why he had the money. Id. Barney asked defendant "where were you raised--what country?" and defendant responded "Colombia." Id. at 1:10. Barney then placed defendant in handcuffs.

Barney left defendant in the custody of another officer, who had stopped to assist, and drove to Richfield to obtain a warrant to search the vehicle. Upon his return with the warrant, about twenty minutes later, Barney and other officers found the control button and opened the door to the compartment. The compartment contained packages, wrapped in brown tape and cellophane, and a substantial amount of coffee grounds. A field test of one package was positive for cocaine. Thirty-eight packages of cocaine were found in the compartment.

II

We review a district court's denial of a motion to suppress evidence under a clearly erroneous standard, viewing the evidence in the light most favorable to the district court's ruling. United States v. Soto, 988 F.2d 1548, 1551 (10th Cir.1993). The ultimate determination of reasonableness, however, is a question of law that we review de novo. Id.

A

Defendant argues for the first time on appeal that the initial stop was pretextual. ² Therefore, we review the district court's finding that the initial stop was lawful for plain error. Fed.R.Crim.P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."); see United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (plain error standard allows reversal to correct only "particularly egregious" errors or errors "that seriously affect the fairness ... of judicial proceedings"); see also United States v. de Francisco-Lopez, 939 F.2d 1405, 1408 n. 1 (10th Cir.1991) (applying plain error standard).

"A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop." United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988). In this circuit the test for determining whether the stop was unconstitutional is " 'whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.' " Id. at 1517 (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986)).

Defendant did not raise the legality of the stop at the suppression hearing; therefore the district court did not apply the objective standard for pretextual stops and there is no record from which we can independently apply the test. Deputy Barney testified that his attention was drawn to defendant's vehicle because he clocked it going seventy-one m.p.h. in a sixty-five m.p.h. zone; and that he decided to stop the vehicle for speeding. Defendant points out that Barney did not write a ticket for speeding and argues this demonstrates the stop was pretextual. Barney testified, however, that immediately upon reaching the vehicle he smelled an odor suggesting the vehicle contained contraband drugs. Barney's failure to issue a speeding ticket when he immediately suspected that defendant was transporting drugs is logical and does not compel a finding that the stop was pretextual. The district court found the stop was based on speeding, ³ and on the record before us we hold that the district court's finding that the stop was lawful is not clearly erroneous.

B

Defendant argues that even if the initial stop was not pretextual, the detention that followed the stop was unreasonable. "During a routine traffic stop, the detaining officer may request a driver's license and vehicle registration, run a computer check on the car and driver, and issue a citation." United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993) (citations omitted). " 'If the driver produces a valid license and proof of right to operate the vehicle, the officer must allow him to continue on his way without delay for further questioning.' " Id. (quoting United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991)). If the officer detains the driver for further questions unrelated to the stop he must have an "objectively reasonable articulable suspicion" of illegal activity. Soto, 988 F.2d at 1554. The assessment of reasonable suspicion is based on the " 'totality of the circumstances.' " United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)); Soto, 988 F.2d at 1555.

The magistrate judge found that Deputy Barney smelled coffee and air freshener at the time he requested defendant's license and registration. Barney, an experienced law enforcement officer trained in drug interdiction, testified that this combination is "known to be used by drug transporters...