U.S. v. Gonzalez-Lerma

• Decision Date: 31 January 1994
• Docket Number: Nos. 92-4214,GONZALEZ-LERM,D,93-4009 and 93-4016,s. 92-4214
• Citation: 14 F.3d 1479
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Reneefendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1479

14 F.3d 1479

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Rene GONZALEZ-LERMA, Defendant-Appellant/Cross-Appellee.

Nos. 92-4214, 93-4009 and 93-4016.

United States Court of Appeals Tenth Circuit.

Jan. 31, 1994.

Jenine M. Jensen, Asst. Federal Public Defender, Denver, CO (Michael G. Katz, Federal Public Defender, with her on the brief), for defendant-appellant/cross-appellee.

Kevin L. Sundwall, Sp. Asst. U.S. Atty., Salt Lake City, UT (David J. Jordan, U.S. Atty., with him on the brief), for plaintiff-appellee/cross-appellant.

Before BALDOCK, HOLLOWAY and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

This is an appeal and cross-appeal following a conviction under 21 U.S.C. Sec. 841(a)(1) for possession of cocaine with intent to distribute. Mr. Rene Gonzalez-Lerma challenges the district court's denial of his motion to suppress the evidence resulting from the stop and search of the vehicle he was driving. The government cross-appeals, alleging that the district court erred in refusing to enhance the sentence under 21 U.S.C. Secs. 841(b)(1)(A) and 851. We affirm the conviction, but remand the case to the district court so that it may resentence, applying the enhancement.

Background

A.

There was evidence offered below tending to show the following:

Mr. Gonzalez-Lerma, while driving a truck on I-70 in Utah, was stopped for traveling 71 m.p.h. in a 65 m.p.h. zone. The truck had a Michigan license plate. Mr. Gonzalez-Lerma produced a temporary California driver's license and the title to the vehicle, rather than its registration. The deputy who stopped Mr. Gonzalez-Lerma noticed that his hands were shaking when he handed the documents over. Asked for additional identification, Mr. Gonzalez-Lerma offered a union card.

The title was in the name of one Robert Thompson and was unsigned. When asked why he had possession of the vehicle, the Defendant stated that he worked in construction and he had taken the vehicle from Detroit to Los Angeles to pick up some parts for construction and was on his way back.

The deputy noted a discrepancy between the dates of birth on the two identification cards. The date of birth on the California license was 10/22/49, while the date on the union card was 9/22/48.

After telling Gonzalez-Lerma that he was going to issue him a written warning, the deputy returned to his patrol car and ran checks on the vehicle. Although the checks were negative, the deputy testified that the lack of a stolen vehicle report did not conclusively establish that the vehicle was not stolen. The deputy returned to the truck, and asked Mr. Gonzalez-Lerma about the construction parts, since he did not see any in the truck. According to the deputy, Mr. Gonzalez-Lerma was unable to answer his question about the parts but said that someone had hired him to drive the vehicle back to Detroit. Asked whether he had firearms, cocaine, or marijuana, Defendant responded that he did not.

The deputy testified that Mr. Gonzalez-Lerma specifically consented to a search of the vehicle. A search of the bed of the truck revealed fresh undercoating and body putty as well as a five- to six-inch space between the top and bottom of the bed. Defendant was arrested and taken into custody. A warrant was obtained, the hidden compartment searched, and 27 kilos of cocaine was found.

B.

After an evidentiary hearing, the trial court issued its order denying the motion to suppress. The court found that the stop was not pretextual, and Defendant does not challenge that determination on appeal.

The court also rejected the Defendant's argument that the deputy's extended detention and persistent questioning constituted an unreasonable seizure. Relying on the rule that an officer may detain an individual for questioning when there exists specific, articulable facts to form a reasonable suspicion of criminal activity, United States v. Turner, 928 F.2d 956, 959 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991), the court held that the investigatory detention was legitimate. The court specifically cited these circumstances as the basis for the officer's continued questioning:

(1) the unsigned title;

(2) the temporary license with a birth date differing from the birth date of the defendant's other identification;

(3) the conflicting stories about the defendant's itinerary;

(4) the implausible explanation for the trip; and

(5) the defendant's complete lack of knowledge about the construction company that allegedly provided him with the truck.

I R.Doc. 17. The court found that these facts, as well as the Defendant's pronounced nervousness, supported the deputy's reasonable suspicion that the vehicle was stolen or that the defendant possessed drugs or other contraband. Id.

Finally, the trial court rejected the Defendant's argument that the search of the bed of the truck and a toolbox therein was improper because consent was only given to look inside the vehicle. Id. The court's position on this issue was supported by the fact that the Defendant gave the officer a general statement of permission to search without express limitations.

C.

The day before trial, the government, to comply with the procedural requirements of 21 U.S.C. Sec. 851, ¹ filed with the court an information stating that it intended to rely on a prior conviction for sentencing purposes, if the Defendant was convicted. I Supp.R. 2. On the morning of the trial, October 5, 1992, before trial commenced, the government served the same information ² on defense counsel. Id. The government had copies of the underlying judgment and commitment order which contained more specific information about the conviction. The government provided these copies to the judge before trial to resolve whether the conviction could be used for impeachment and whether it could be used in the government's case-in-chief. IV R. 8-9. Those discussions, at which both government and defense counsel were present, occurred, at least in part, in chambers and are not part of the record on appeal. Id. at 9. The government also represented below that the prior conviction "was a matter of negotiation prior to going to trial." IV R. 4.

Defendant was found guilty under 21 U.S.C. Sec. 841(a)(1) of possession of a controlled substance with intent to distribute. At the initial sentencing hearing, defense counsel objected to enhancement and sought a continuance because of the lateness with which the enhancement request was made in the PSR addendum. IV R. 4. Defense counsel requested time to investigate the validity of the prior conviction, whether or not it was a felony, and "whether there are any other kinds of defects." Id. at 9-10. The matter was continued. Before sentence was imposed, defense counsel indicated that he had investigated the prior conviction and "did not discover ... anything that would raise [to] the level of a challenge [under Sec. 851(c) ]." V R. 4. The defense then specifically objected to the timeliness of filing of the information and also to the lack of specificity in its contents. V R. at 4-6. Objection also was made to enhancing because the prior conviction was not by way of indictment. Id. at 6-7.

The district court regarded the third objection as fatal to the enhancement of the sentence. Id. at 9. Therefore, rather than impose an enhanced sentence of twenty years, he sentenced the defendant to the mandatory minimum of ten years' imprisonment, five years' supervised release, and a $50 special assessment. Id. at 10. Although the judge indicated at the first sentencing hearing that he did not believe that the timing of the information met the requirements of Sec. 851, IV R. 4-5, at the continued sentencing hearing the judge stated that he regarded the fact that the prior conviction was not obtained on an indictment as fatal to enhancement on the instant offense. V R. 9.

Discussion

A. Fourth Amendment

On appeal, the Defendant advances the same two arguments made to the district court. When reviewing a district court's denial of a motion to suppress, we accept the district court's factual findings unless they are clearly erroneous. United States v. Arango, 912 F.2d 441, 444 (10th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991). The ultimate determination of reasonableness under the Fourth Amendment, however, is a question of law, which we review de novo. United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989).

The threshold inquiry in reviewing the validity of a search or seizure is whether the Defendant's own Fourth Amendment rights have been violated. United States v. Padilla, --- U.S. ----, ----, 113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993). The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). For this reason, it is beyond dispute that a vehicle's driver may challenge his traffic stop. United States v. Erwin, 875 F.2d 268, 270 (10th Cir.1989). Thus, despite argument by the government challenging Defendant's standing to attack the search of the truck, we hold that Gonzalez-Lerma has standing to challenge his traffic stop and subsequent detention. A traffic stop is an investigative detention analogous to a Terry stop. United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993). Its reasonableness is evaluated in two respects: first, whether the officer's action was justified at its inception, and, second, whether the action was reasonably related in scope to the circumstances that first justified the interference. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968). In the context of a traffic stop, this court has consistently held that:

An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a...