U.S. v. Eylicio-Montoya

• Citation: 18 F.3d 845
• Decision Date: 01 March 1994
• Docket Number: EYLICIO-MONTOY,No. 93-2076,D,93-2076
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Tomasitaefendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 845

18 F.3d 845

UNITED STATES of America, Plaintiff-Appellant, v. Tomasita EYLICIO-MONTOYA, Defendant-Appellee.

No. 93-2076.

United States Court of Appeals, Tenth Circuit.

March 1, 1994.

Joseph Douglas Wilson, Attorney, Department of Justice, Washington, D.C. (Don J. Svet, United States Attorney, and Tara C. Neda, Assistant United States Attorney, District of New Mexico, with him on the brief), for Plaintiff-Appellant.

Stephen P. McCue, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellee.

Before EBEL and McKAY, Circuit Judges, and SAFFELS, ^* Senior District Judge.

McKAY, Circuit Judge.

This is an interlocutory appeal by the United States from an order of the district court suppressing evidence in a criminal case. Interlocutory appeal is authorized under 18 U.S.C. Sec. 3731. Ms. Montoya was charged with possession with intent to distribute less than fifty kilograms of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(D). Ms. Montoya moved to suppress evidence of the marijuana found in the car in which she was riding. The district court granted the Motion to Suppress and the government appeals.

At the suppression hearing, United States Customs Agent Albert Vogrinec testified that in October 1992 he received a call from an informant with whom he had previously communicated, and who had provided reliable, substantiated information in the past. The informant stated that a woman named "Tammy" had been hired by a man named "Ruben" to transport one hundred pounds of marijuana from Grants, New Mexico to Denver, Colorado. The informant provided Agent Vogrinec with Tammy's address, although he or she did not know Tammy's last name. Agent Vogrinec testified that the informant told him that the information had come from Tammy herself. After checking on the address provided by the informant, Agent Vogrinec discovered that Ms. Tomasita Eylicio-Montoya lived at that residence. Agent Vogrinec testified that he was already familiar with Ms. Montoya, who had been arrested at least twice, and convicted at least once, for transporting marijuana.

Agent Vogrinec testified that, on October 31, 1992, the informant called again and told him that "Ruben" had arrived in Albuquerque from Mexico, and that the trip would take place within the next few days. The informant again telephoned on November 2, and said that the trip would begin on that day. The Customs Service then began surveillance of Ms. Montoya's residence. At that time, the agents conducting the surveillance observed a white Ford pickup truck with a Mexican license plate in front of Ms. Montoya's house. A license check revealed that the vehicle had entered the United States on October 31, which corresponded with the date the informant had indicated that "Ruben" had crossed the border from Mexico.

The Customs agents next observed a brown Datsun 210, which had also been described by the informant, arrive at the Montoya residence. Ms. Montoya and a man later identified as Ruben Rez removed the "drive-out sticker" from the brown Datsun and replaced it with a New Mexico license plate; this plate was traced to a white 1982 Mazda. Ms. Montoya and a woman later identified as Ms. Montoya's daughter-in-law left in the brown Datsun at the same time that the white pickup truck departed with two males, one of whom was later identified as Ruben Rez.

Agent Vogrinec testified that the two vehicles proceeded to a nearby gas station, where they were met by another male, later identified as Ms. Montoya's son, Joseph. They then departed and traveled to Grants, stopping at the Best Western Motel, where Ms. Montoya registered. In the early morning of November 3, two cars arrived at the motel and parked next to the pickup truck and the Datsun. During the early morning, the pickup truck and the Datsun left the motel several times. At six o'clock that morning, Ms. Montoya left the motel and walked to a nearby restaurant with several people not previously seen with her. Some time later the agents observed Ms. Montoya, her son, and her daughter-in-law get into a blue Dodge Colt hatchback. Ms. Montoya's son drove, Ms. Montoya was in the front passenger seat, and her daughter-in-law was in the rear seat. Ruben Rez and another hispanic male got into the pickup truck. Both vehicles left the motel and proceeded west on Interstate 40. ¹

After following the two vehicles for a short distance, Agent Vogrinec requested police assistance in stopping the cars. Both cars were stopped, and Agent Vogrinec and a New Mexico police officer approached the blue Dodge with their firearms unholstered, although Agent Vogrinec testified that he kept his weapon behind his back. Agent Vogrinec further stated that, as he approached the vehicle, he observed through the hatchback window a large bundle of burlap bags, partially covered by a towel. He then asked the occupants of the blue Dodge, including Ms. Montoya, to exit the vehicle. The three occupants were ordered to lie on the ground, because there were no female officers present to conduct a pat-down search for weapons. Agent Vogrinec then obtained the keys from the ignition, opened the hatchback, and cut open the taped and cellophane-wrapped contents of the burlap bag, confirming that it contained marijuana. At that time, Agent Vogrinec informed Ms. Montoya, her son, and her daughter-in-law that they were under arrest. Agent Vogrinec testified that Joseph Eylicio told him that the car belonged to his father, Ms. Montoya's ex-husband.

At the conclusion of the suppression hearing, the district court made the following oral findings of fact and conclusions of law: ²

That Agent Vogrinec received a call from an informant indicating the defendant had informed the informant that the defendant and a Ruben would be transporting marijuana from Grants to Denver.

Apparently there was a surveillance at 803 Third Street, Southwest, at which the agents observed a white Ford pickup truck with a Chihuahua, Mexico, license plate, as well as [a] brown Datsun-210 that had previously been identified by the informant. And that vehicle was also parked at the same residence.

That then they observed a blue Dodge Colt also arrive at the same residence, after which then the pickup as well as the Dodge Colt departed from the residence and went to I-40 and proceeded in the direction of Grants.

That they later observed these two vehicles proceed to a parking lot at the Best Western Motel in Grants, where these two vehicles and the defendant and other occupants--or at least the defendant registered and at least was in a room at the Best Western Motel.

That then the agents observed the cars--or at least the pickup truck and the Dodge Colt to depart from the motel and proceeded westbound on I-40 from Grants. That Agent Vogrinec followed the two vehicles and then ordered the state police to stop the automobiles.

Agent Vogrinec also had information that the defendant previously had been involved in a drug investigation in 1990. This is the totality of the circumstances that the agents had at the time the vehicle was stopped.

The vehicle presumably was observing all the traffic regulations. The agent has not testified there was any conduct on the part of the occupants of the car that would warrant a stop, other than the fact that he suspected that they were transporting marijuana.

Yet there's no evidence before the Court that they observed any movement of any bundles or anything else from any of the vehicles to this particular car or anything from the automobile, or from the room to the car.

The Court finds that at the time that the car was stopped, apparently the agents directed the defendants to lie on the ground. He further states that it was rather severe weather, and I find that all of the defendants were arrested at the[ ] time that they were directed to exit the car and lie on the ground.

And the Court finds that there was absolutely nothing to justify the belief that there was probable cause that a crime was being committed.

And I further find that there was no evidence to warrant neither the stop nor the arrest, and I find that they were arrested immediately upon their being ordered to exit the car.

After they were forced to lie on the ground, the agents got the keys and then opened the trunk, and the Court finds that there also was no probable cause for that particular search.

(R.Vol. II at 29-31.) The court then granted Ms. Montoya's Motion to Suppress.

In reviewing the granting of a motion to suppress evidence in a criminal case, we apply the clearly erroneous standard to the district court's factual findings and we view the evidence in the light most favorable to the ruling. United States v. Anderson, 981 F.2d 1560, 1566 (10th Cir.1992). The ultimate conclusion of the reasonableness of a search and seizure under the Fourth Amendment, however, is a conclusion of law that we review de novo. Id.

As a preliminary matter, we must decide whether the district court applied the correct legal standard in determining the constitutionality of the stopping of the vehicle in which Ms. Montoya was riding. It is not absolutely clear from the district court's findings of fact and conclusions of law whether that court applied a reasonable suspicion or a probable cause standard to the stopping of the vehicle. The government argues on appeal that the stop was an investigatory stop for which only reasonable suspicion is required, and that this standard was met.

It has long been settled that "stopping an automobile and detaining its occupants constitute[s] a 'seizure' within the meaning of [the Fourth] Amendment." Berkemer v. McCarty, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317 (1984) (quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). However, a brief investigative stop only requires "some objective manifestation that the person stopped is ... engaged in criminal activity." United...