U.S. v. Sanchez-Pena

• Decision Date: 27 June 2003
• Docket Number: No. 01-50736.,01-50736.
• Citation: 336 F.3d 431
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fidencio SANCHEZ-PENA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

336 F.3d 431

UNITED STATES of America, Plaintiff-Appellee, v. Fidencio SANCHEZ-PENA, Defendant-Appellant.

No. 01-50736.

United States Court of Appeals, Fifth Circuit.

June 27, 2003.

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Joseph H. Gay, Jr., Asst. U.S. Atty. (argued), Angela S. Raba, San Antonio, TX, for Plaintiff-Appellee.

Mary Ellen Mimi Smith (argued), Alpine, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and FELDMAN, District Judge.^*

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury convicted appellant Fidencio Sanchez-Pena ("Sanchez") of aiding and abetting possession with intent to distribute marijuana, for which he received a sentence of forty-one months' imprisonment and three years' supervised release. Prior to trial, the district court denied Sanchez's motion to suppress the drug evidence police officers found in his car following a traffic stop. Sanchez appeals the trial court's ruling on that motion, and also asserts that one of his attorneys labored under a conflict of interest during Sanchez's trial and pretrial proceedings and that the other rendered ineffective assistance of counsel. Finding no error, we affirm.

I.

There was testimony at the hearing on the motion to suppress that on October 19, 2000, at approximately 4 a.m., Brewster County Deputy Sheriff Ross Bates, while patrolling in a southerly direction on U.S. Highway 385, observed a blue Suburban traveling north, partially on the shoulder of the road, at a speed of forty-nine miles per hour. The posted speed limit was sixty-five miles per hour. Bates testified that he had learned during DWI training that there is a fifty-percent chance that a driver going more than ten miles below the speed limit is intoxicated; driving on the shoulder of the road also indicates that the driver is under the influence.

Based on his suspicion that the driver was intoxicated, Bates turned his vehicle in a northerly direction and activated his overhead lights to stop the Suburban. The driver of the Suburban turned on his left turn signal but pulled over to the right of the roadway. Bates then exited his patrol car and the driver, whom Bates identified as Sanchez, also exited his vehicle and met the officer at the front of the police car.

Bates did not notice the smell of alcohol on Sanchez's breath, but saw that Sanchez appeared nervous and his hands and knees were shaking. The two spoke in English without any apparent problems, and Sanchez presented a valid Texas driver's license. Sanchez told Bates that he was coming from Presidio, Texas, and going to Del Rio, Texas. That raised further questions, because Sanchez was not taking the logical route to reach his destination, choosing to navigate the hilly, winding road through Big Bend National Park instead of using a more direct, faster highway route.

Bates asked for proof of insurance, and Sanchez told Bates to wait by the patrol car while he obtained it from the Suburban. However, Bates followed Sanchez to his car, and noticed when Sanchez reached across the driver's seat to retrieve the insurance card from the glove box that there was a passenger in the front seat, whom Bates identified as Sanchez's co-defendant, Cazares. Sanchez conversed with Cazares in Spanish and then obtained the insurance paper from the glove compartment. When Sanchez turned and found Bates behind him, "he kind of jumped a little." Bates asked Sanchez to wait while he checked the vehicle's registration and for outstanding warrants.

After Bates returned to his vehicle, he received a call from Border Patrol Agent Tashman advising him about oncoming traffic. Bates told Tashman that he had stopped a blue Suburban and that he would probably need assistance. Bates, who had a drug-detecting dog with him, determined that a canine inspection should be conducted on the vehicle based on its suspicious route and because similar vehicles had been used to smuggle drugs in the gas tank. However, because there were two individuals in the car, he hesitated to conduct the canine inspection in the dark isolated area without any assistance.

Bates received information that Sanchez was the registered owner of the vehicle. He returned to Sanchez's vehicle and noticed that the heater was on high, which he found odd since he was in short sleeves on that October night. Bates advised Sanchez that he wished to conduct a canine inspection and asked Sanchez if he would mind proceeding with him to a closed checkpoint approximately thirty miles north; Sanchez said that was fine.

Bates followed Sanchez's vehicle and called a dispatcher to obtain the assistance of another officer, Deputy Fuentes, at the checkpoint, because Agent Tashman was located too far away to get to the checkpoint by the time Bates and Sanchez were due to arrive. Just before reaching the checkpoint, Sanchez pulled over to the right of the roadway, and Bates pulled in behind him and turned on his overhead lights for safety reasons. He told Sanchez to pull up to the lit area of the checkpoint, which was 200 to 300 yards away, and Sanchez did so without any protest. Deputy Fuentes was at the checkpoint when they arrived, and Sanchez began speaking to him in Spanish. Bates spoke to Sanchez through Fuentes and told Sanchez that he wanted to perform a canine inspection on the vehicle. Sanchez again consented to the inspection.

Bates testified that he and the dog, Pepper, circled the vehicle and the dog alerted to the gas tank area of the Suburban. He then inspected the inside of the vehicle and noticed that the floor boards from front to back were soaking wet. Sanchez explained that a relative had washed the car and might have left a door open.

Agent Tashman arrived and used a scope to examine the gas tank, which revealed an abnormal tank in which there appeared to be some welding and a black colored box. Based on that observation, the dog alert, the time of night, the route being taken, and the type of vehicle, Bates decided to arrest Sanchez and Cazares. The officers proceeded to the Border Patrol Station, removed the gas tank, and found two large metal containers inside of it. The containers concealed approximately 195 pounds of marijuana.

Sanchez and Cazares told a different story at the hearing. Cazares denied that the car was weaving, but admitted that when Bates initially stopped them, he said the vehicle had been zigzagging on the road and traveling very slowly and he suspected the driver had been drinking. Cazares asserted that after Bates inspected the insurance papers, he told them to drive safely and gave them permission to leave. He did not hear Bates discussing a canine inspection or making an additional stop, but admitted that he could not hear all of the conversation between Bates and Sanchez. He testified that they continued to drive north but as they approached the checkpoint, Bates came up behind them and turned his lights on. Sanchez stopped about a half block from the checkpoint, and Bates told them to proceed to the checkpoint; when they arrived at the checkpoint, Fuentes told them to stand there and not move. Cazares did not hear Fuentes ask for consent to do a canine inspection and did not recall Sanchez consenting to the canine inspection or to the gas tank being scoped with an instrument. He testified that he and Sanchez were not told at any point that they were free to leave the checkpoint and he did not feel that he was free to walk away.

Sanchez testified that, at the time of the initial stop, Bates told him he could leave after his paperwork was found to be in order. He noticed after driving away that Bates continued to follow his vehicle. As they approached the checkpoint, Bates put on his overhead lights, and Sanchez felt compelled to stop. He denied that Bates asked him to drive to the checkpoint so that he could conduct a canine inspection. However, he acknowledged that Deputy Fuentes asked for permission to conduct the canine inspection, and he consented to it because he did not feel that he had the right to say no.

At the conclusion of the hearing, the district court determined that Officer Bates had the right to stop Sanchez because he was driving slowly and weaving and, thus, Bates had a reasonable basis to suspect that he was intoxicated. The district court made the credibility determination that Sanchez consented to the request to proceed to the checkpoint for a canine inspection. The district court also determined that the consent was voluntary, that the canine had sufficient training to make an effective alert, and that the canine inspection presented no Fourth Amendment problems. With these findings the trial court denied Sanchez's motion to suppress.

II.

Sanchez urges here that Bates had no reasonable suspicion of illegality justifying the initial traffic stop; that, even if reasonable suspicion did justify the initial stop, the officers located the evidence after they had illegally extended the stop past the original justification; and that the drug-detection dog was not qualified to detect narcotics. In reviewing a district court's order denying a motion to suppress, we review conclusions of law de novo and factual findings for clear error, viewing the evidence in the light most favorable to the party who prevailed in the district court, in this case the Government.¹

A.

Sanchez first contends that the initial traffic stop was not based on Officer Bates's reasonable suspicion that Sanchez was driving while intoxicated.² The Government retorts that the manner in which Sanchez was driving the vehicle provided an objective basis for a reasonable suspicion and that the district court found credible Bates's testimony about his belief that the driver might be intoxicated.

The Fourth Amendment prohibition against unreasonable searches and seizures extends to stopping a vehicle and temporarily detaining its occupants.³ Even so, the Fourth...