462 F.3d 1302 (10th Cir. 2006), 05-8031, United States v. Guerrero-Espinoza

Docket Nº:05-8031.
Citation:462 F.3d 1302
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Antonio GUERRERO-ESPINOZA, Defendant-Appellant.
Case Date:September 15, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1302

462 F.3d 1302 (10th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Antonio GUERRERO-ESPINOZA, Defendant-Appellant.

No. 05-8031.

United States Court of Appeals, Tenth Circuit.

Sept. 15, 2006

Page 1303

Ronald G. Pretty, Cheyenne, WY, for Defendant-Appellant Antonio Guerrero-Espinoza.

David A. Kubichek, Assistant United States Attorney (Matthew H. Mead, United States Attorney, with him on the brief) for Plaintiff-Appellee United States of America.

Before TYMKOVICH, HOLLOWAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, Defendant-Appellant Antonio Guerrero-Espinoza ("Guerrero") asserts that the district court erred in denying his motion to suppress illegal drugs discovered in his minivan by a Wyoming state trooper during a traffic stop. At the time the trooper stopped the minivan for speeding, Guerrero, the minivan's registered owner, was riding as a passenger and another individual was driving. The trooper took the driver to the trooper's patrol car and eventually completed the traffic stop when he returned the driver's license, issued the driver a warning, and let him out of the

Page 1304

patrol car. Since the traffic stop had ended, the trooper no longer had authority to detain Guerrero or the driver further. Before the driver returned to the minivan, however, the trooper reinitiated contact with him and then with Guerrero, questioning them about their travel plans and the possible presence of drugs in the minivan. The Government asserts that Guerrero consented to this further detention and questioning. While a completed traffic stop can evolve into a consensual encounter between a citizen and a trooper, it can only do so if a reasonable person in the same circumstances would feel free to decline to answer the trooper's questions and leave. In this case, however, because the trooper completed the traffic stop outside Guerrero's presence and because the released driver never returned to the minivan, a reasonable person in Guerrero's position would not have realized the traffic stop had ended and he was free to leave. Therefore, as far as Guerrero was concerned, the traffic stop did not evolve into a consensual encounter. For these reasons, we REMAND this case to the district court with orders to VACATE Guerrero's convictions.

I. BACKGROUND.

A jury convicted Guerrero of three drug charges: possessing 1) more than 500 grams of cocaine and 2) approximately twenty pounds of marijuana, with the intent to distribute both, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and (D); and 3) conspiring to possess those amounts of cocaine and marijuana, with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and (D), 846. 1 The district court sentenced Guerrero to seventy months on each of counts one and three, and sixty months on count two, all to run concurrently. Guerrero now appeals, challenging his convictions and sentence.

On appeal, Guerrero argues the district court 1) erred in denying his motion to suppress the state trooper's discovery of the drugs; 2) denied Guerrero his Sixth Amendment right to confront witnesses when the court allowed the Government to present hearsay evidence of statements the van's driver and Guerrero's wife made during the traffic stop, and between Guerrero and his wife; and 3) abused its discretion in permitting a state trooper to testify to a recorded conversation between Guerrero and his wife that occurred in the back of a patrol car. Guerrero further argues that 4) the statutory mandatory minimum sentence that applied to two of his convictions was unconstitutional. Because we conclude the district court erred in denying Guerrero's motion to suppress, we do not address Guerrero's other issues. Having jurisdiction to consider this appeal under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, therefore, we REMAND this case to the district court with instructions to VACATE Guerrero's convictions.

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II. STANDARD OF REVIEW

"When reviewing a district court's denial of a motion to suppress, we view the evidence in the light most favorable to the government, accepting the district court's factual findings unless clearly erroneous. Fourth amendment reasonableness is reviewed de novo." United States v. Gregoire, 425 F.3d 872, 875 (10th Cir.2005) (citation omitted). The Government bears the burden of demonstrating reasonableness. See United States v. Herrera, 444 F.3d 1238, 1242 (10th Cir.2006).

III. DISCUSSION

A. Relevant Facts.

Viewing the evidence 2 in the light most favorable to the government, see id., the evidence presented at the pretrial suppression hearing established the following: On October 19, 2003, a state trooper, Benjamin Peech, stopped a white minivan with a Mississippi license plate that was travelling eastbound on Interstate 80 just east of Cheyenne, Wyoming. The trooper's radar gun indicated that the minivan was travelling eighty-four miles per hour, in excess of the posted seventy-five-miles-per-hour speed limit. The minivan's occupants included Alfredo Anguiano-Cipres ("Cipres" or "the driver"), Guerrero, 3 and Guerrero's wife, Edelmira Hernandez-Mancilla ("Hernandez").

The trooper stopped the van at 8:06 a.m. He approached the driver, Cipres, and asked for his driver's license, the vehicle's registration, and proof of insurance. Because Cipres did not speak English very well, the trooper spoke to Cipres in Spanish. Cipres produced a California driver's license.

At this same time, Guerrero, the minivan's owner who was sitting in the front passenger seat, was going through a stack of papers he had retrieved from the glove box, apparently looking for the vehicle's registration. The trooper offered to help Guerrero find the registration and Guerrero agreed, handing Trooper Peech this entire stack of papers. The trooper took the stack of papers back to his patrol car, accompanied by Cipres.

While sitting in his patrol car with Cipres, the trooper wrote Cipres a warning for speeding. The trooper also eventually located the vehicle's registration in the stack of documents Guerrero had given him--the van was registered in Mississippi to Guerrero. The trooper, however, was unable to locate any indication that the minivan was insured. Trooper Peech gave Cipres the warning and handed him back his driver's license, but indicated to Cipres that the trooper had to speak further with Guerrero about the vehicle's insurance. Cipres remained in the patrol car. Trooper Peech testified that Cipres was not free to leave the patrol car at that time.

Leaving Cipres in the patrol car, Trooper Peech went to the passenger side of the minivan to verify with Guerrero that he was the van's owner and to ask him about the van's insurance. This occurred at 8:16 a.m. The trooper spoke with Guerrero in both Spanish and English after Guerrero indicated that he could speak English pretty well. Guerrero acknowledged that he owned the van and told the trooper that: he had been in Mexico for the past three months; during that time he had left the van with his brother; and the brother was supposed to pay the insurance on the van.

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Guerrero never produced any proof of insurance. 4

Trooper Peech gave Guerrero back the stack of papers taken from the minivan's glove compartment, including the vehicle's registration, and then returned to his patrol car. There, he opened the door of the patrol car to allow Cipres to exit the vehicle. Although Trooper Peech did not tell Cipres he was free to drive away, the trooper deemed the traffic stop to be over at this point. As Cipres got out of the patrol car and started walking toward the minivan, however, Trooper Peech "recontacted" Cipres and asked him if the trooper could ask him some more questions. Cipres agreed. Trooper Peech then inquired about Cipres's travel plans and his relationship to Guerrero. This conversation occurred on the side of the highway while the two men were standing between the van and the patrol car. Trooper Peech then asked Cipres if the trooper could speak to Guerrero again. Cipres agreed. Trooper Peech returned to the van's front passenger area to speak with Guerrero. Although the trooper testified that Cipres was free to get back into the minivan at this time, Cipres did not do so, but instead remained standing on the side of the highway, at the back of the van, during Trooper Peech's conversation with Guerrero.

According to the state trooper, Guerrero "pretty much" agreed that the trooper could ask him some more questions. Trooper Peech first questioned Guerrero about his travel plans, and then asked Guerrero if he had any guns or illegal drugs in the vehicle. Guerrero answered that he did not. The trooper asked Guerrero twice, in both Spanish and English, if the trooper could search the van. Guerrero twice replied that the trooper could search. Trooper Peech then went back to Cipres, who was still standing at the back of the van. He asked Cipres if he had anything in the car, and Cipres indicated that he had a suitcase. Trooper Peech asked if he could search Cipres's suitcase, and Cipres agreed. Trooper Peech then asked Guerrero, Cipres, and Guerrero's wife, Hernandez, to stand outside the van while he searched.

The first place Trooper Peech searched was the undercarriage of the van, where he noticed "tooling" marks--marks indicating tools had been used on the bolts and screws--as well as other apparent alterations on and near the gas tank. The trooper then called for a drug-sniffing dog. He also went inside the van, where he located what appeared to be an access point to the gas tank. While he was doing this, Cipres, Guerrero, and Hernandez approached the van. Trooper Peech asked them to get back, and then asked again if he could continue searching. Guerrero said yes.

Two additional troopers arrived, one with a drug-sniffing dog. Trooper Peech asked Guerrero if the dog could search...

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