534 F.3d 1338 (10th Cir. 2008), 07-2008, United States v. Chavez

Docket Nº:07-2008.
Citation:534 F.3d 1338
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Victor CHAVEZ, Defendant-Appellant.
Case Date:July 29, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1338

534 F.3d 1338 (10th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Victor CHAVEZ, Defendant-Appellant.

No. 07-2008.

United States Court of Appeals, Tenth Circuit.

July 29, 2008

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[Copyrighted Material Omitted]

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Arturo B. Nieto, Albuquerque, NM, for Defendant-Appellant Victor Chavez.

Gregory J. Fouratt, Assistant United States Attorney (Larry Gomez, Acting United States Attorney, with him on the brief), for Plaintiff-Appellee United States of America.

Before HARTZ, EBEL and TYMKOVICH, Circuit Judges.

EBEL, Circuit Judge.

During a search of Defendant-Appellant Victor Chavez's pick-up truck, a New Mexico State Police patrolman discovered approximately 1 kilogram of cocaine in a bucket covered with nails. Mr. Chavez eventually entered a conditional guilty plea to one count of conspiracy to commit possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B) and 846, and one count of possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). He conditioned his plea on the right to challenge on appeal the district court's decision not to suppress the narcotics evidence as fruits of an illegal stop and search.

The patrolman who pulled Mr. Chavez over was instructed to do so by a Drug Enforcement Agency (“DEA" ) task force officer. Prior to the traffic stop, a DEA task force had investigated and conducted surveillance of Servando Moreno, the passenger in Mr. Chavez's pick-up at the time of the stop. More to the point, the DEA had, through a confidential source, arranged to purchase 1 kilo of cocaine from Mr. Moreno on the day of the stop. Based on its investigation, the DEA directed the patrolman to stop and search Mr. Chavez's vehicle. Mr. Chavez contends that the patrolman lacked probable cause because he was not privy to the details of the DEA investigation. The central question presented here is whether the patrolman's stop and search of Mr. Chavez's vehicle was justified under the “collective knowledge" doctrine. We conclude that it was. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. The Sting

After a months-long investigation, the DEA set in motion a sting operation targeting Mr. Moreno on January 18, 2006. Serving as an intermediary, a confidential source (“CS" ) who had previously proven to be reliable,1 made a series of monitored telephone calls 2 to Mr. Moreno and indicated

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that a buyer from Amarillo, Texas, was interested in purchasing 1 kilo of cocaine. As negotiated by Mr. Moreno and the CS, the transaction was to occur at a truck stop in Santa Rosa, New Mexico (a location between Amarillo and Albuquerque). When Agent Maudlin spoke with the CS on the evening of January 18, the CS confirmed the location, price, and other logistical details of the drug deal, and also noted that Mr. Moreno had indicated that “he was going to get a driver to take him" from Albuquerque to Santa Rosa.3

B. The Surveillance

The next morning, January 19, Agent Maudlin and Task Force Officer (“TFO" ) James Mowduk staked out Mr. Moreno's trailer home in Albuquerque. Around 9:20 a.m., the CS called Mr. Moreno to check on the status of the deal, and Mr. Moreno indicated that the deal was on, but that he was still at home. Just a few minutes later, a man matching Mr. Moreno's description left the trailer carrying a small duffel bag, got in a burnt orange truck customarily driven by Moreno, and drove to 319 Riverside, a home located in the South Valley area of Albuquerque. The DEA agents followed the burnt orange pick-up to the Riverside residence. After arriving at 319 Riverside, the orange truck disappeared behind a stucco fence paralleling a driveway that led behind the house.

Approximately fifteen minutes later, a white pick-up truck left 319 Riverside. The DEA agents followed the truck to a gas station, where they ascertained that two individuals were in the truck. One matched Mr. Moreno's description and the other, as it turned out, was Mr. Chavez. While the white truck was at the gas station, the DEA team instructed the CS to telephone Mr. Moreno again. Mr. Moreno told the CS that he was just leaving Albuquerque en route to Santa Rosa. A few minutes later, the two individuals left the gas station, headed north on I-25, and then took eastbound I-40 towards Santa Rosa. The DEA agents, including Agent Maudlin and TFO Mowduk, continued their surreptitious pursuit.

C. The Stop

As members of the DEA task force followed the white pick-up onto I-40, TFO Mowduk called Patrolman Arcenio Chavez,4 a canine officer with the New Mexico State Police. The day before, in preparation for the sting operation, TFO Mowduk had confirmed with Patrolman Chavez that Chavez would be on duty the following day with his canine partner, Chica. TFO Mowduk then informed him that the DEA task force wanted him to perform a traffic stop the next day.

During their conversation on the morning of January 19, TFO Mowduk provided Patrolman Chavez with the “plate number, the vehicle description, the number of occupants," and a description of the white pick-up truck that the DEA wanted him to stop. TFO Mowduk also advised the patrolman that he would have to develop his own probable cause for stopping the vehicle because the occupants were wearing seat-belts and appeared to be observing traffic laws. Lastly, in response to Patrolman Chavez's queries, TFO Mowduk stated that the white pick-up was carrying “coke" and that he didn't know whether the occupants were armed.

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When TFO Mowduk called, Patrolman Chavez was waiting on the median of I-40 east of Albuquerque. He eventually located the white pick-up, and engaged his emergency equipment.5 After the white pick-up truck pulled over, a charade of sorts took place. Patrolman Chavez pretended that he had stopped Mr. Chavez for failing to turn on his headlights in a safety corridor-a failure that the patrolman in fact believed at the time of the stop was an infraction of New Mexico's regulations.6 As such, he followed his routine traffic stop procedure, asking first for Mr. Chavez's license, registration, and proof of insurance. Patrolman Chavez filled out a citation for the headlight infraction and for Mr. Chavez's failure to provide proof of insurance. After asking Mr. Chavez and Mr. Moreno routine questions about their travel plans, Patrolman Chavez returned Mr. Chavez's license and registration and stated that Mr. Chavez and Mr. Moreno were free to leave.

D. The Search

Before Mr. Chavez could drive off, however, Patrolman Chavez asked Mr. Chavez if he would answer some more questions. During this colloquy, the patrolman asked for permission to search the truck. Mr. Chavez queried what would happen if he did not consent; Patrolman Chavez responded that he would have Chica sniff the truck before letting them go. Eventually, Mr. Chavez consented to the search, and both Mr. Chavez and Mr. Moreno signed standardized consent forms that were written in both English and Spanish. During the subsequent search, Patrolman Chavez discovered a packet of a substance that was later confirmed to be cocaine in a bucket of nails on the truck's bed. He then arrested both Mr. Chavez and Mr. Moreno. All told, the traffic stop and search lasted about 30 minutes.

E. The Secrecy

The DEA task force opted to involve Patrolman Chavez-and to request that he develop his own rationale for stopping the truck-to maintain the secrecy of its investigation. Agent Maudlin testified that Patrolman Chavez was given minimal information to protect the integrity of the DEA investigation and the identity of the CS. By having a New Mexico State Police officer pull Mr. Moreno over, the DEA task force hoped to convince the traffickers that the stop was a random occurrence.

F. The Suppression Decision

On February 7, 2006, Mr. Chavez was indicted on one count of conspiracy to commit possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and 846, one count of possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B), and one count of aiding and abetting, in violation of 18 U.S.C. § 2. Mr. Chavez and Mr. Moreno submitted a joint motion to suppress evidence, and the district court held a suppression

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hearing on August 29 and August 31, 2006. After Judge Armijo rejected the motion to suppress in a Memorandum Opinion and Order dated September 8, 2006, Mr. Chavez entered a conditional guilty plea to the first and second counts (conspiracy and possession). On appeal, Mr. Chavez renews his Fourth Amendment objections to the traffic stop and the search.

II. DISCUSSION

A. Standard of Review

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