U.S. v. Martinez

• Decision Date: 15 May 2007
• Docket Number: No. 05-20330.,05-20330.
• Citation: 486 F.3d 855
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Angel MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

486 F.3d 855

UNITED STATES of America, Plaintiff-Appellee, v. Juan Angel MARTINEZ, Defendant-Appellant.

No. 05-20330.

United States Court of Appeals, Fifth Circuit.

May 15, 2007.

Julia Bowen Stern and James Lee Turner, Asst. U.S. Attys., Peter Rodney Mason (argued), Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Michael L. Herman (argued), Houston, TX, for Defendant-Appellant.

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

Before REAVLEY, JOLLY and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Based on a tip, Houston police suspected that the defendant, Juan Angel Martinez, had witnessed a violent crime and might possess the weapons used therein. The tipster provided a street address and indicated that Martinez was staying there with his girlfriend. Rather than seek a warrant, the police set up a ruse to draw Martinez out of the house. Martinez and his girlfriend took the bait, exited the home and drove off in a vehicle, unaware that they were being watched. Police officers stopped the vehicle a few blocks away, placed the defendant in the back of a police car, and then asked his girlfriend for consent to search her home, which she gave. Police discovered three firearms inside, but soon learned that the tipster was wrong. Martinez had not witnessed a violent crime, nor were the guns used in such a crime. Martinez was charged with being an illegal alien in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(5)(A), 922(g)(1), and 924(a)(2).

Martinez filed a motion to suppress both the guns and any statements given to police. The district court decided to suppress the statements but not the guns. After a bench trial, Martinez was found guilty of being a felon in possession. On appeal, Martinez again argues that the guns must be suppressed. Specifically, he claims that the stop was not supported by reasonable suspicion, and that the guns must be suppressed as the fruit of that poisonous tree. We agree with Martinez.

I. FACTS AND PROCEDURAL HISTORY

Law enforcement in Houston received a tip that a man named "Angel" might have been a witness to a quadruple homicide, might be in possession of the weapons used in the homicide, and might be planning to flee to Mexico with those weapons. The tipster stated that Angel was staying with his girlfriend, and provided her address in Pasadena, Texas. The day after receiving the tip, the police did not seek a warrant. Rather, six officers set up surveillance outside the residence. Three or four hours later, a car drove away from the residence. The officers stopped the car and interviewed the driver, a man named Bernardo, who confirmed that a man named Angel was in the residence. At the request of the police, Bernardo agreed to call the residence and ask Angel to come to the location of the stop to retrieve his car. Approximately twenty minutes later, Juan Angel Martinez ("Martinez") and his girlfriend, Georgina Amatt ("Amatt"), left the house, totally unaware that they were under surveillance. The police stopped them a few blocks away. They immediately placed Martinez in the back of a police cruiser, where he consented to being transported to the police station for questioning. Meanwhile, a Spanish-speaking officer obtained consent from Amatt to search her residence, which resulted in the discovery of three firearms.

The police quickly learned that Martinez's middle name was Angel, but contrary to the tipster's information, neither Martinez nor the discovered weapons had anything to do with the quadruple homicide. Martinez was charged only with being an illegal alien in possession of firearms and with being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(5)(A), 922(g)(1), and 924(a)(2). He filed a motion to suppress the statements given and the evidence seized. The district court held a lengthy suppression hearing at which both sides presented the testimony of multiple witnesses. Afterwards, the district court granted the motion to suppress the statements but denied the motion to suppress the evidence. The court later conducted a bench trial and found Martinez guilty of being a felon in possession. The district judge sentenced him to a term of 92 months plus three years supervised release.

On appeal, Martinez argues that the district court erred in denying his motion to suppress the weapons discovered at Amatt's home. He argues that the informant's tip was not itself reliable and specific enough to give rise to a reasonable suspicion that Martinez had engaged in criminal activity. He adds that the police might have established the reliability of the information by taking steps to corroborate it, but they did not adequately do so. Without reasonable suspicion, he says, the stop of his vehicle was unlawful, and the firearms must be suppressed as the fruit of that poisonous tree.

II. STANDARD OF REVIEW

As a preliminary matter, the parties disagree as to the appropriate standard of review to be applied in this case. Generally, when considering a motion to suppress evidence under the Fourth Amendment we review the district court's factual findings for clear error and its Fourth Amendment conclusions de novo. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir.2003). In this case, however, the government argues that Martinez never raised his appellate claim in the district court, and that we should review it for plain error only. Therefore, we first consider whether Martinez's claim was raised below.

After a lengthy evidentiary hearing, defense counsel summarized his arguments to the district judge, one of which was as follows: "The reasonable suspicion itself wouldn't be sufficient, because they didn't have reasonable suspicion that Martinez had just committed a crime." Martinez plainly asserted that the stop was not supported by reasonable suspicion because the police could not reasonably suspect that he had just committed a crime. This requirement comes from a long line of case law holding that "an investigatory stop would be proper only if based on reasonable suspicion that `criminal activity is afoot.'" United States v. Roch, 5 F.3d 894, 897 (5th Cir.1993) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Once all the evidence had been heard, and the arguments made, the district court explicitly ruled that the stops were supported by reasonable suspicion. The judge stated that "the stop was justified, that the information that the officers had was sufficient basis for the stops of the vehicles."¹

On this record alone, it would seem obvious that our review of the Fourth Amendment claim, which was presented to and decided by the district court, would be de novo. However, the government argues that Martinez's challenge to the reasonable suspicion was not specific enough to alert the court and the government to the particular concern he raises on appeal. In particular, the government says that Martinez did not argue in the district court that the informant's tip was inadequate to give rise to a reasonable suspicion of criminal activity. If Martinez had specifically stated that the informant's tip was unreliable, says the government, then it might have re-called its witnesses, or called new witnesses, to establish the reliability of its informant or its information. But this the government was already obligated to do.

The crucial fact in this case is that the government bore the burden of proving reasonable suspicion. See Roch, 5 F.3d at 897 ("[W]here the facts are undisputed that the arrest and seizures were made without benefit of warrants of any kind, . . . the government bears the burden of proving it had a reasonable suspicion to seize [the defendant]."); see also Terry, 392 U.S. at 21, 88 S.Ct. 1868 (1968) ("[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion."). The primary basis for that suspicion in this case was the informant's tip. Realizing this, the government asked its own witnesses about the informant's tip on direct exam.² The government's complaint, then, cannot be that it was caught unawares, nor that Martinez was under some obligation to inform it ahead of time of his particular concerns. Again, the burden rests with the government to demonstrate reasonable suspicion, and where that suspicion hinges on an informant's tip, part of the government's burden is to address the reliability of that information.

It is true that once the government had presented its evidence, Martinez still needed to make his specific legal arguments clear to the district court. If he failed to do so, we would review for plain error only. See United States v. Maldonado, 42 F.3d 906, 909-13 (5th Cir.1995). The government, relying on our holding in Maldonado, asserts that Martinez was not sufficiently specific. In Maldonado, we considered whether the defendant had properly raised a Dickerson objection³ to the police officer's search. Id. at 909-12. During the pat-down, the officer discovered a bulge in the defendant's boot. He reached in, removed a round package, and opened it to find heroin inside. Id. at 908. At a suppression hearing, defense counsel argued that the officer lacked probable cause to open the package, but never argued that Dickerson prevented the officer from seizing the package in the first place. Id. at 910-12. We took pains to explain that the two legal issues were distinct, and concluded, "[t]he district court ruled on the issues presented it. Had the Dickerson issue been presented, testimony could have been taken, and argument received, on that issue; and the district court would have dealt with it." Id. at 912. Because it was not, we confined our review to plain error only. Id.

This case is very different from Maldonado. As we have said, "the touchstone...