495 F.3d 1203 (10th Cir. 2007), 06-4230, United States v. Cortez-Galaviz

Docket Nº:06-4230.
Citation:495 F.3d 1203
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ramses CORTEZ-GALAVIZ, Defendant-Appellant.
Case Date:July 31, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1203

495 F.3d 1203 (10th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ramses CORTEZ-GALAVIZ, Defendant-Appellant.

No. 06-4230.

United States Court of Appeals, Tenth Circuit.

July 31, 2007

Appeal from the United States District Court for the District of Utah, D.C. No. 2:05-CR-802-PGC.

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Submitted on the briefs:[*]

Deirdre A. Gorman, Ogden, UT, for Defendant-Appellant.

Brett L. Tolman, United States Attorney, and Elizabethanne C. Stevens, Assistant United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

Before O'BRIEN, McWILLIAMS, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Ramses Cortez-Galaviz contends that a traffic stop ultimately leading to his conviction for possession with intent to distribute illegal drugs was unreasonable under the Fourth Amendment. Specifically, Mr. Cortez-Galaviz maintains that the information on which the detaining officer relied to effect the stop--derived from a state computer system containing vehicle insurance and registration data--was too meager to give rise to reasonable suspicion of unlawful conduct, too unreliable, and too stale. We agree, however, with the district court that the information from the database provided objective, particularized, and, while perhaps not perfect or immediate, sufficient information to justify a brief traffic stop. Accordingly, we affirm.

I

As part of a stakeout coordinated by a Drug Enforcement Agency ("DEA") task force on October 20, 2005, Marcelo Rapela of the Midvale City, Utah police department stationed himself outside a duplex in Salt Lake City that, according to a confidential informant, housed a drug dealing operation. During the course of the stakeout, Officer Rapela saw Mr. Cortez-Galaviz speak with another person outside the duplex and then enter the front passenger door of a white Ford Explorer, after which the Explorer proceeded to drive away. Deciding to follow the vehicle, Officer Rapela typed its license plate information into his squad car computer to check its registration and insurance status; shortly thereafter he received the following message, highlighted in red:

INSURED/Not Found: AS OF/9/30/2005 Recommend request proof of insurance.

This is apparently one of at least three possible responses to an officer's computer search, the others being messages indicating that the vehicle either definitely is or definitely is not insured.1

The database queried by Officer Rapela is the product of a program, directed by the Utah State Legislature, to help law enforcement monitor compliance with state insurance requirements and assist in reducing the number of uninsured motor vehicles on the road. Utah Code Ann. § 41-12a-803(1)(a)-(b). Maintained by a third party agent, Insure-Rite, Inc. ("Insure-Rite"), the database matches insurance information provided by insurance companies with vehicle registration information provided by the Utah Motor Vehicle Division ("MVD"), and is audited at least annually for accuracy. Utah Code Ann. § 41-12a-803(5) & (8)(b).2

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Officer Rapela testified that he takes the results of his database queries at face value and that his typical response to a "not found" message is to pull the vehicle over and ask the driver for proof of insurance; if the vehicle turns out to be insured, Officer Rapela recommends the individual take the information to the MVD to "allow them to update the system"; otherwise he issues the driver a citation. Following his usual practice, Officer Rapela stopped the Explorer to ask the driver about its insurance status. As he approached the vehicle, a passenger seated in the rear, Carlos Zepeta-Soto, started to reach underneath his seat. Officer Rapela asked Mr. Zepeta-Soto to keep his hands on the headrest in front of him, and Mr. Zepeta-Soto initially complied. The officer then asked the driver, Juan Carlos Reyes-Rubio, for his license, registration, and proof of insurance. Mr. Reyes-Rubio, however, had no license and started checking for registration and insurance information but, at this point, Mr. Zepeta-Soto removed his hands from the headrest and again reached under his seat. Officer Rapela, who was without backup at the time, grew concerned for his safety, opened the rear passenger door, and then saw drugs in plain view in the spot on the floor where Mr. Zepeta-Soto had been reaching. Officer Rapela arrested Mr. Zepeta-Soto and, after conducting a further search and finding additional drugs, also took into custody both the driver and Mr. Cortez-Galaviz.

Eventually indicted on three counts of distributing controlled substances, Mr. Cortez-Galaviz filed a motion to suppress and, after the district court denied the motion, entered a conditional guilty plea while preserving his right to appeal the disposition of his suppression motion.

II

A

The only question presented to us on appeal is whether the initial traffic stop of the Explorer complied with the Fourth Amendment. 3 In approaching this question, we must, as in all appeals from a district court's order on a motion to suppress, view the record evidence in the light most favorable to the district court's ruling and accept its factual findings unless clearly erroneous, though we will assess de novo the legal question whether the search was "reasonable" under the Fourth Amendment. United States v. Caro, 248 F.3d 1240, 1243 (10th Cir.2001). The Fourth Amendment test for assessing the reasonableness of traffic stops, in turn, tracks our test for investigative detentions--that is, a traffic stop will be held reasonable when, under the totality of the circumstances, the officer bears a "reasonable

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suspicion" that criminal activity "may be afoot." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation and citations omitted).

To satisfy the reasonable suspicion standard, an officer must have a "particularized and objective" basis for thinking the detained individual is involved in criminal activity. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). This standard aspires to draw a line that at once protects the rights of individual citizens "against police conduct which is overbearing or harassing" and the "toll in human injury and frustration" such conduct imposes, Terry v. Ohio, 392 U.S. 1, 15, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), yet balances the social need for security, recognizing "the rapidly unfolding and often dangerous situations on city streets [where] the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess," id. at 10, 88 S.Ct. 1868. As given to us, this standard requires an officer to have "some minimal level of objective justification," INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), but he or she "need not rule out the possibility of innocent conduct as long as the totality of the circumstances suffices to form a particularized and objective basis for a traffic stop." United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.2004) (internal quotations and citation omitted). Thus, reasonable suspicion may be supported by "a showing considerably less than preponderance of the evidence." Id. at 1263 (internal quotation and citation omitted).

Governed by these legal standards, we find ourselves compelled to hold Officer Rapela's stop compliant with the Fourth Amendment on the record before us. The officer indeed had both particularized and objective information before him suggestive of a traffic violation. He was not, as Mr. Cortez-Galaviz, "merely viewing the [Explorer] through his windshield, wondering" about its insurance status as he might any other passing vehicle. Aplt.'s Opening Br. at 9. Rather, Officer Rapela knew, objectively and with particularity, that the state database maintained for the purpose of recording vehicle insurance information contained no information suggesting that the owner of the Explorer had insured it. He had reason, therefore, to pluck this needle from the haystack of cars on the road for investigation of a possible insurance violation.

To be sure, the "not found" response Officer Rapela received from the database did not as definitively indicate criminal activity as a "no" response, but neither did it equate to an exculpatory "yes," and the suggestive ambiguity of the particularized and objective information Officer Rapela had at hand justified his decision to warrant a brief traffic stop--even though it surely would not have sufficed for an arrest. Indeed, the resolution of particularized and objective yet still ambiguous--potentially lawful, potentially unlawful--facts is the central purpose of an investigative detention. See Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ("Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.... Terry recognized that the officers could detain the individuals to resolve the ambiguity."); Terry, 392 U.S. at 22, 88 S.Ct. 1868 (recognizing "that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest").

In this respect, our case is not only controlled by the holdings of Wardlow and Terry, but may be analogized to their

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facts. In Wardlow, when the defendant saw officers drive by in a patrol car and look in his direction, he immediately fled; the Court explained that such flight "is not necessarily indicative of wrongdoing" but it is "certainly suggestive," and the very ambiguity of the situation allowed officers to pursue the...

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