U.S. v. Lopez

• Decision Date: 04 March 2008
• Docket Number: No. 07-3159.,07-3159.
• Citation: 518 F.3d 790
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Carlos LOPEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

518 F.3d 790

UNITED STATES of America, Plaintiff-Appellant, v. Carlos LOPEZ, Defendant-Appellee.

No. 07-3159.

United States Court of Appeals, Tenth Circuit.

March 4, 2008.

Richard A. Friedman, Appellate Section, Criminal Division, Department of Justice, Washington, D.C. (Eric F. Melgren, United States Attorney; James A. Brown, Assistant United States Attorney; and David P. Zabel, Special Assistant United States Attorney, District of Kansas, with him on the briefs) for Plaintiff-Appellant.

Michael L. Harris, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), District of Kansas, for Defendant-Appellee.

Before TACHA, ANDERSON, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

The government seeks to appeal the district court's ruling suppressing drugs found in the back of Carlos Lopez's truck, but failed to file in a timely manner the certification required by 18 U.S.C. § 3731 — that is, a document representing that its appeal is not taken for delay and the suppressed evidence is substantial proof of a fact material to the prosecution. Our precedent indicates, however, that this failure is not jurisdictional and should not preclude an appeal so long as the government has materially, if not formally, complied with Section 3731. Because the record demonstrates that the government did, in substance, undertake the evaluation called for by Section 3731 before noticing this appeal, we must proceed to its merits. Doing so, we hold that the events witnessed by government surveillance agents, taken as a whole, provided the officers reasonable suspicion to effect an investigative detention, and we therefore reverse.

I

A

On a December morning in 2006, Dana Suchma, a federal Drug Enforcement Agency special agent, conducted drug-interdiction surveillance at a Best Western hotel in Kansas City, Kansas, near an I-35 interchange. Agent Suchma has ten years' experience in this line of work, and has described his job as including surveillance in hotel/motel parking lots, with an eye toward locating cars that are from "source cities" and then gathering information about the car and driver from hotel employees or others before deciding whether the car's journey sounds sufficiently suspicious to merit further monitoring for drug-related activity.

In the Best Western parking lot, Agent Suchma noticed a red pickup truck with its engine running and a person inside smoking a cigarette. Running a check on the truck's Texas license plate, he discovered it was registered to a Carlos Lopez from Pharr, Texas. Agent Suchma consulted a map and found that Pharr is a suburb of McAllen, a border town in south Texas that he believed to be a source city where drugs are brought over the border. The agent then entered the hotel and learned from the clerk that Mr. Lopez checked in the night before at 10:38, checked out that morning at 9:01, and paid cash for his room.

Returning to his own car, Agent Suchma decided to continue monitoring the truck and requested assistance by radio from three other nearby members of his surveillance team. After nearly an hour idling in the hotel parking lot, Mr. Lopez moved his truck from the hotel parking space and drove to one of the parking spaces of a Sonic drive-in restaurant immediately adjacent to the hotel. The agents then saw a green pickup truck, parked near Mr. Lopez's truck in the Best Western parking lot, follow Mr. Lopez's truck into the restaurant parking lot and pull into a space directly next to Mr. Lopez's vehicle on the passenger side.

As soon as both pickup trucks arrived at the Sonic, the agents observed Mr. Lopez get out of his truck and walk to the front of it. At the same time, a passenger in the green truck, Alfonso Urena-Bonilla, exited that vehicle carrying a white styrofoam cooler, and, without speaking with Mr. Lopez, placed it in the bed of Mr. Lopez's truck. While this transfer was occurring, the driver of the green truck, Ricardo Cardenas-Corona, got out and stood surveying the general area. Agent Suchma, concerned that the driver was engaged in counter-surveillance, relocated his vehicle to remain unnoticed.

Although Mr. Lopez and Mr. Cardenas-Corona stood outside their vehicles in parking spaces directly next to each other, the agents did not observe any communication between them. As soon as Mr. Urena-Bonilla deposited the cooler in Mr. Lopez's truck, Mr. Lopez reentered the vehicle and backed out of the parking space, at which point Mr. Urena-Bonilla came over and spoke with him briefly. After this brief exchange, Mr. Lopez drove out of the Sonic parking lot and proceeded southbound on I-35. None of the men apparently sought breakfast at the Sonic.

After following Mr. Lopez and observing him drive onto I-35, Agent Suchma contacted a member of the Kansas Highway Patrol to request assistance in stopping Mr. Lopez's truck. Highway Patrol Lieutenant Tom Catania and Trooper Charles Lovewell, in a car nearby, responded to the request by calling the agent on his cell phone. Agent Suchma told Lieutenant Catania what he and the other surveillance agents saw at the hotel and restaurant, gave a description of the truck and its plate number, and asked that the Lieutenant and his partner stop Mr. Lopez — for a traffic infraction if possible, although Agent Suchma believed he already had reasonable suspicion to justify an investigative stop.

Trooper Lovewell located Mr. Lopez's truck and, after following him for a distance, observed the truck weave slightly and the right-side tires momentarily stray over the fog line. Believing this violated state law, Trooper Lovewell pulled Mr. Lopez over. After explaining why he stopped Mr. Lopez and examining his license, registration, and proof of insurance, Trooper Lovewell asked Mr. Lopez about his destination and the significant mileage on his relatively new truck. Mr. Lopez responded that he had driven from Florida to Dallas to Kansas City, and was now returning to Dallas, and that, although he had driven approximately 14,000 miles in the 4 months he had owned the truck, he did not use it for business. The troopers believed this amount of mileage likely excessive for leisure travel and consistent with the operations of a drug courier.

Trooper Lovewell issued Mr. Lopez a written warning for failing to maintain his lane of travel and returned his documents. After he told Mr. Lopez to "have a safe trip" and walked away from the vehicle, and after Mr. Lopez prepared to drive away, Trooper Lovewell turned back toward the truck and knocked on the window. Mr. Lopez motioned for him to open the passenger door, which he did. Trooper Lovewell then asked whether he could ask Mr. Lopez some additional questions. When Mr. Lopez did not object, Trooper Lovewell asked whether he had anything illegal in the vehicle, such as drugs. Lieutenant Catania also came alongside the truck and asked whether Mr. Lopez had any weapons or large amounts of currency. Mr. Lopez responded "no" to these questions. Trooper Lovewell then asked if he could search the truck and Mr. Lopez answered affirmatively. Trooper Lovewell confirmed that Mr. Lopez understood his request to search and Mr. Lopez against consented. Opening the cooler in the truck bed revealed 3.3 kilograms of methamphetamine.

B

The government filed an indictment charging Mr. Lopez, along with Mr. Urena-Bonilla, with possession with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Mr. Lopez moved to suppress the contents of the cooler, alleging that his stop and search violated the Fourth Amendment. The district court agreed that the stop wasn't based on reasonable suspicion of a legitimate traffic infraction. A single instance of straying across the fog line without some evidence that it was unsafe to do so is not a traffic infraction under Kansas law, the court held, and Trooper Lowell conceded in his testimony that the circumstances at the time did not make Mr. Lopez's conduct unsafe (viz, there were no other cars nearby, the driving conditions weren't hazardous, etc.).

Although the district court recognized that the stop nonetheless could be considered lawful as an investigative detention if Agent Suchma acquired reasonable suspicion Mr. Lopez was involved in criminal drug activity before he asked highway patrol officers to stop Mr. Lopez, the court ruled that the observations of the surveillance agents did not provide reasonable suspicion of such conduct, though the court considered this a "close call."

After the district court issued its order suppressing the cooler's contents, the government filed a timely notice of appeal. In its appeal, the government did not contest the district court's ruling that there was insufficient evidence of a traffic infraction for crossing a lane marker to support a traffic stop, but argued that the circumstances surrounding the transfer of the cooler did give rise to reasonable suspicion of criminal activity sufficient to justify a brief investigative detention. At the same time, however, the government failed to certify to the district court, as required by 18 U.S.C. § 3731,¹ that its interlocutory appeal was not taken for purpose of delay and the suppressed evidence was a substantial proof of a fact material in the proceeding. In light of this deficiency, we entered an order to show cause why the case should not be dismissed. In response, the government filed the required certification and represented that its failure to file the document earlier was an oversight. During the briefing of this appeal, the government filed an unopposed motion (which we now grant) to supplement its response to our order to show cause, appending three sworn affidavits from the government attorneys involved in this case.

In its filings, the government explained that a Section 3731 certification was not filed because the Assistant United States Attorney ("AUSA") who...