U.S. v. Valle Cruz

• Decision Date: 03 July 2006
• Docket Number: No. 05-3258.,05-3258.
• Citation: 452 F.3d 698
• Parties: UNITED STATES of America, Appellant, v. Rigoberto VALLE CRUZ, also known as Abraham Orona Saez; Angelina A. Alford, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 698

452 F.3d 698

UNITED STATES of America, Appellant, v. Rigoberto VALLE CRUZ, also known as Abraham Orona Saez; Angelina A. Alford, Appellees.

No. 05-3258.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2006.

Filed: July 3, 2006.

COPYRIGHT MATERIAL OMITTED

John E. Higgins, argued, Asst. U.S. Attorney, Omaha, NE, for appellant.

Michael J. Tasset, Oakland, NE, for appellant Alford.

Jeffrey L. Thomas, Federal Public Defender, Omaha, NE, for appellee Valle Cruz.

Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.

BOWMAN, Circuit Judge.

The United States appeals from the order of the District Court granting the suppression motions filed by Rigoberto Valle Cruz and Angelina Alford. See 18 U.S.C. § 3731 (2000) (allowing the government to appeal a suppression order before final judgment under certain conditions where the evidence in question "is a substantial proof of a fact material in the proceeding"). We reverse and remand the case for further proceedings.

The traffic stop that set in motion the events leading up to the suppression order took place on January 14, 2005, on Interstate 80 in Dawson County, Nebraska. Much of the relevant activity was videotaped by the Nebraska State Patrol trooper who made the stop. At about 3:30 in the afternoon, Trooper Chad Phaby¹ pulled over a westbound Ford Expedition SUV for speeding. Within seconds after the Expedition pulled over, a white Daewoo automobile went past on the highway, pulled onto the shoulder, and stopped some distance, perhaps 1000 feet, in front of the SUV and the patrol car. Phaby approached the SUV and asked the driver, who Phaby later learned was Valle Cruz, for his license, the vehicle's registration, and proof of insurance. Observing the interior of the SUV, Phaby saw a radar detector; deodorizers; fast food trash; and blankets, pillows, and clothing in the back, but no luggage. When asked, Valle Cruz said that the Daewoo driver was his girlfriend. Phaby asked Valle Cruz to pull up behind the car; Phaby pulled up his patrol car as well.

Phaby noted the California license plates and called the license and registration information into dispatch. The license bore the name "Abraham Oronosaez," whose criminal history was reported to Phaby as including an arrest for first degree murder in Puerto Rico. The SUV was registered to "Alma Lugo" but had not been reported stolen.

Phaby returned to the SUV and asked Valle Cruz about his travels. Valle Cruz said he was returning from New York, where he and his girlfriend had tried to deliver the Daewoo to a friend named "Herman," but "Herman" was not there anymore. It was at this juncture, about ten minutes after the initial stop, that Phaby made his first contact with the driver of the Daewoo, Angelina Alford. He asked her about their trip. She said they had been in New York about a week to visit friends, and she slept most of the time. She did not mention "Herman" or the plan to give away the car. Phaby testified at the hearing that it appeared to him that Alford was coming down from drugs, or perhaps she was just tired. He did not check her license or registration, but he did tell her to "sit tight." Phaby returned to the SUV where he asked Valle Cruz how long they had been in New York; he said two days.

Phaby told Valle Cruz that he was free to go, but then said he had some more questions, if Valle Cruz did not mind. Valle Cruz denied having drugs, weapons, or large sums of cash in the SUV and nodded affirmatively when Phaby asked if he could search the Expedition. Valle Cruz stepped out of the vehicle, and Phaby did a protective pat-down search. He then called for a drug-detection dog to sniff the SUV before he conducted a physical search of the vehicle. This was approximately fifteen minutes into the stop. When Phaby asked Valle Cruz who had rented the Daewoo, Valle Cruz answered, "That's her car." Phaby then went to the Daewoo to advise Alford that the dog was on the way and once more told her to "sit tight" and he would get them out of there in a minute. He also asked her if she had any questions. Again, he did not check her license or registration.

In the next ten minutes or so, while waiting for the drug-detection dog, Valle Cruz announced to Phaby that Alford was hungry. Phaby responded that he had just talked to her, she was fine, and she said she was going to wait for him. Phaby's suspicions were aroused by Valle Cruz's attempt to have Alford leave the scene after the drug dog was called, so he went to the Daewoo and asked Alford if he could run her license. She said she did not care. Phaby took the license, returned to his patrol car, and called in the license information. While he was waiting for the results of the license check, the canine handler and his dog arrived, about thirty-five minutes after the SUV was stopped. Phaby returned to the Daewoo to tell Alford to "stand tight," that they wanted to run the dog around the car as well as the SUV. She said no, that she was "fine," and that she had done nothing wrong. He told her again to "sit tight" and returned to his patrol car where he received the report on her license check. Her criminal history included drug charges. At about the same time, the dog alerted on the center console of the Expedition. Phaby then decided to detain Alford as well as Valle Cruz, believing that he had sufficient probable cause with the drugs found in the SUV and the fact that Valle Cruz and Alford were traveling together. Phaby nevertheless called the county attorney and told him, among other things, that Alford's criminal history showed a "positive Triple I [Interstate Identification Index] for drugs and stuff like that." The attorney verified that Alford could be detained.

The troopers conducted a cursory search of the SUV, focusing on the console, and found a plastic bag containing a small amount of a white substance that they believed to be methamphetamine. The substance later field-tested positive for cocaine. Phaby arrested Valle Cruz.

The canine handler then attempted to walk his dog around the Daewoo. Alford interfered with the dog sniff by sticking her head out the car window and shouting at the handler. The handler pulled the dog away because the dog was then more interested in biting Alford than sniffing for drugs. The dog did not alert on the Daewoo. After the failed attempt to walk the drug dog around the car, Phaby asked Alford to open the trunk, then to step out of the car, to unlock and open the door, and to give him the keys. She refused and asked for Phaby's supervisor. Phaby made another call to the county attorney and updated him on what had happened. Phaby then reported to Alford that he had been told he had probable cause to search her car. After a verbal tussle, including a threat by Phaby to arrest Alford for obstruction of justice, Alford got out of the car. Within a minute or two, the troopers found a crack pipe with a white residue in it on the driver's side floorboard, and Phaby arrested Alford.

Both vehicles were towed to a body shop where troopers conducted a thorough search. In a suitcase in the trunk of the Daewoo they found approximately 2.2 pounds of cocaine. Valle Cruz and Alford were charged with possession of cocaine with intent to distribute. Both filed motions to suppress.

The Magistrate Judge held a hearing on the motions. Ruling from the bench, he concluded that the initial stop of Valle Cruz for speeding was supported by reasonable suspicion, that Valle Cruz consented to the search of the SUV, and that Alford was not illegally detained (seized) by Phaby. But the Magistrate Judge also decided that the search of the Daewoo was not supported by probable cause. He recommended denying the motion to suppress the drugs found in the Expedition but granting the motions to suppress the crack pipe and the 2.2 pounds of cocaine retrieved from the Daewoo, as well as incriminating statements that Alford made after her arrest. The District Court, in a written memorandum and order, agreed with the Magistrate Judge's recommendation and overruled the government's objections. The United States appeals, maintaining that Phaby had the necessary probable cause to search the Daewoo.

The Supreme Court announced the "automobile exception" to the Fourth Amendment's warrant requirement in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and has since explained that automobiles are excepted for two primary reasons. First, a car's mobility makes it "a fleeting target for a search." Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Second, drivers and passengers have lower expectations of privacy in motor vehicles because of "the pervasive regulation of vehicles capable of traveling on the public highways." California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). A warrantless search of a car will be constitutionally valid, however, only if it is supported by probable cause. Ornelas v. United States, 517 U.S. 690, 693, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

We review for clear error the District Court's findings of historical fact, id. at 699, 116 S.Ct. 1657, about which there is virtually no dispute in this case because most of those facts are evidenced on at least the audio portion of the videotape. We review de novo the ultimate conclusion regarding probable cause. Id.

The government challenges three of the District Court's factual findings: that Phaby did not receive the information about Alford's criminal history until after her arrest; that Alford "was almost immediately told by the officer to `stay here, don't go anywhere,"' Memorandum and Order at 2; and that the initial search of the Daewoo followed the stop by two hours, instead of less than one. We have reviewed the videotape and agree that these findings are clearly erroneous. Alford concedes the errors, but she and Valle Cruz contend that the errors were not...