U.S. v. Vanness, 02-2008.

• Decision Date: 26 August 2003
• Docket Number: No. 02-2008.,02-2008.
• Citation: 342 F.3d 1093
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Vernon Vanness, a/k/a Michael D. Herrera, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

342 F.3d 1093

UNITED STATES of America, Plaintiff-Appellee, v. Donald Vernon Vanness, a/k/a Michael D. Herrera, Defendant-Appellant.

No. 02-2008.

United States Court of Appeals, Tenth Circuit.

August 26, 2003.

Susan Bronstein Dunleavy, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

David N. Williams (David C. Iglesias, United States Attorney, and Laura Fashing, Assistant U.S. Attorney, with him on the briefs), Albuquerque, NM, for Plaintiff-Appellee.

Before LUCERO, HOLLOWAY and ANDERSON, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is an appeal involving a denial of a suppression motion. Vanness pleaded guilty and was sentenced to concurrent terms of 33 months in prison and three years of supervised release for possession of methamphetamine with intent to distribute and possession of marijuana with intent to distribute. Brief of Appellant (Attachment: A at 1-3). In his plea agreement, Vanness reserved his right to appeal the district court's denial of his motion to suppress evidence. II R. (Doc. 88 at 2). Defendant's primary contention on appeal is that the evidence should have been suppressed because the stated reason for the traffic stop was violation of a local noise ordinance which, he contends, is unconstitutionally vague and overly broad.

I BACKGROUND

On November 15, 1999, at about 10:25 p.m., Officer Jerry L. Belyeu, a police officer for the Town of Bernalillo, New Mexico, was assisting another officer on a traffic stop when he heard very loud music. III R. 26-27, 30-31. (Transcript of 6/13/01 proceedings). Officer Belyeu estimated that he was approximately 150 yards¹ from Vanness' vehicle when he first heard the music and observed the car. III R. 31 (Belyeu stated that he actually heard the music for between three to five seconds before he saw Vanness' vehicle. Id.). Belyeu later conducted two tests, with a laser and with his car's odometer, which indicated that he was 450 to 500 feet away from Vanness' car when he first heard the music and observed the vehicle. Id. at 31-33.

Officer Belyeu testified that he could hear Vanness' car radio "over normal conversation between myself and somebody standing next to me. I could hear it over my police radio." III R. 33 (Transcript of 6/13/01 proceedings). Subsequently, Belyeu pulled Vanness' vehicle over, id., in an area which was within approximately fifteen to twenty yards of some residences and close to the grounds of a school. Id. at 48-49.

After pulling Vanness over, Officer Belyeu approached Vanness' vehicle, where Vanness was sitting in the driver's seat and Shauna Kelley was seated next to him in the front passenger's seat. Belyeu testified that he identified himself and told Vanness he was being stopped because his radio was playing extremely, unreasonably loud. III R. 34-35. Officer Belyeu also testified that he asked Vanness whether there was something wrong with Vanness' vehicle. Id. at 35. Vanness replied that his stereo and one of his speakers were malfunctioning and that he was attempting to find a location where he could work on the car. Id.

Officer Belyeu then asked for Vanness' driver's license, registration, and insurance. Id. at 36. Vanness, according to Belyeu, said he did not have one because his wallet had been stolen in Utah. Id. He then told Officer Belyeu that his name was Michael D. Herrera. Officer Belyeu told Vanness that he was parked in an area known "as being a high-traffic area for narcotics", id. at 37-38, and then asked "`Do you have anything in this vehicle I should be aware of, weapons, drugs, anything like that?'" Id. at 40. Vanness, according to Officer Belyeu, stated that Belyeu was welcome to search his car. Id.

Officer Belyeu checked with his dispatch office whether a "Michael D. Herrera" was licensed in either Utah or New Mexico and learned that there was no record on file of a license in either state. III R. 40-41. At this time, Officer Belyeu requested back up and Officers Palmer and Munk arrived soon thereafter. Id. at 41. According to Belyeu, Vanness provided Officer Palmer with a different spelling of the name "Michael D. Herrera" and told him he had a driver's license in New York, but again a records check revealed no such license. Id. at 42. Belyeu also testified that Vanness told Officer Palmer that he was welcome to search the vehicle. Id. at 43.

Officers Belyeu and Palmer subsequently searched Vanness's car and found seven knives, a small tin box with "[r]esidue of a green leafy substance which" Officer Belyeu "believed to be marijuana," and a "bag with a white powdery substance." III R. 43-44 (Transcript of 6/13/01 proceedings).² Officer Munk observed "a very large speaker in the back" of the vehicle "which was taking up most of the rear area of the vehicle, a very large base-type [sic] speaker" consistent with the noise that was emanating from the vehicle. III R. 95. Officer Palmer discovered Vanness's wallet, which contained his suspended Colorado driver's license, in Kelly's jacket. III R. 44-45. The government says that defendant was then arrested for "interference with officer" or concealing his identity. Id. at 46.

On March 29, 2001, Vanness filed a motion to suppress all the evidence seized from the vehicle he was driving on the grounds that the "initial stop and seizure of the defendants was unconstitutional as there was no reasonable suspicion that the defendants had violated the unreasonable noise ordinance 2-1-7 because there is no such ordinance in the town of Bernalillo" and "[i]n the alternative, if the court finds ordinance 2-1-7 ... to be a valid ordinance in the town of Bernalillo, the same ordinance is unconstitutionally vague and overbroad, and does not warrant good-faith reliance by any law enforcement officials." I R. (Doc. 48). The government opposed Vanness's motion.

The district judge issued an order denying Vanness's motion to suppress evidence based on the reasons the judge "stated on the record" at a hearing on June 13, 2001. Brief of Appellant (Attachment C: Order denying suppression of evidence). During this hearing, the district judge found credible the police officers' testimony that they heard music from Vanness's car from 450 feet away and that Vanness consented to the search of the car. III R. 137-38 (Transcript of 6/13/01 proceedings). The judge also found that the testimony of Vanness and Kelley, which contradicted the police officers' testimony, was not credible. Id. at 142. The judge held that the noise prohibition of Section 2-1-7 of Town of Bernalillo Ordinance No. 62 was "valid and not unreasonably vague or overbroad." Id. at 139. The judge found that "[t]he ordinance does not, in my opinion, encourage arbitrary and discriminatory enforcement, and I find that the officer initially stopped the Defendant because of the loud noise coming from his vehicle." Id. at 139-40.

Conceding that he did not know what Vanness' citation was issued for,³ the district judge stated that "the vehicle was stopped, according to the police officers, for unreasonable noise, and there was certainly reasonable ground to believe that the ordinance that has been used by both the Government and the Defense in this case, 2-1-7, was being violated." Id. at 140. The district judge cited this court's unpublished decision United States v. Briscoe, 216 F.3d 1088, 2000 WL 779879 (10th Cir.2000) (Table), for the proposition that "the Fourth Amendment looks not at the subjective belief of the officer, but the objective evidence." III R. 140. Therefore, the district judge stated, "I conclude that the ordinance under which the Defendant was stopped was Constitutional and that the stop was lawful." Id. at 141.

Further, the district judge said that "even if it could be determined that the ordinance was vague and overbroad, it would be inappropriate ... to apply the exclusionary rule because of the good faith reliance by a police officer on the Constitutionality of an ordinance and, specifically, the one in question, and that is the rule set forth," id. at 141, by the Supreme Court in Illinois v. Krull, 480 U.S. 340, 342, 360, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (extending the United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), good faith exception to evidence obtained under an unconstitutional statute). The district judge then denied the motion to suppress. III R. 141. Thus, the district judge in addition to finding the noise ordinance constitutional, also held that the good faith exception barred the application of the exclusionary rule.

The district court denied Vanness's suppression motion on June 13, 2001 and on July 31, 2001, Vanness pled guilty to the grand jury indictment as part of a plea agreement which reserved his right to appeal the district court's denial of his motion to suppress evidence. II R. (Doc. 88 at 2).

II DISCUSSION

The good faith exception to the exclusionary rule

We agree with the government that even if the ordinance is held unconstitutional, the good faith exception may apply. Whether the good faith exception to the exclusionary rule applies is a question of law that this court reviews de novo. See United States v. Tuter, 240 F.3d 1292, 1299 (10th Cir.), cert. denied, 534 U.S. 886, 122 S.Ct. 195, 151 L.Ed.2d 137 (2001).

The good faith exception was pronounced by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). There the Court addressed this question:

This case presents the question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.

Id. at 900, 104 S.Ct. 3405. The Court stated further:

We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively...