589 F.3d 1048 (10th Cir. 2009), 08-2169, United States v. Pena-Montes

Docket Nº:08-2169.
Citation:589 F.3d 1048
Opinion Judge:LUCERO, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis PENA-MONTES, Defendant-Appellant.
Attorney:Stephen P. McCue, Federal Public Defender, Albuquerque, NM, for Defendant-Appellant. Terri J. Abernathy, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, with her on the briefs), Office of the United States Attorney for the District of New Mexico, Las Cruces, NM, for ...
Judge Panel:Before LUCERO, MURPHY, and O'BRIEN, Circuit Judges. O'BRIEN, J., concurring.
Case Date:December 07, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1048

589 F.3d 1048 (10th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,


Jose Luis PENA-MONTES, Defendant-Appellant.

No. 08-2169.

United States Court of Appeals, Tenth Circuit.

December 7, 2009

Page 1049

         Stephen P. McCue, Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

          Terri J. Abernathy, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, with her on the briefs),

Page 1050

Office of the United States Attorney for the District of New Mexico, Las Cruces, NM, for Plaintiff-Appellee.

          Before LUCERO, MURPHY, and O'BRIEN, Circuit Judges.

          LUCERO, Circuit Judge.

         This Fourth Amendment appeal arises from a traffic stop in Albuquerque, New Mexico. In the course of that stop, a police officer questioned Appellant Jose Luis Pena-Montes, the vehicle's passenger. This led to his arrest and the discovery that Pena-Montes had been previously removed from the United States after a felony conviction. See 8 U.S.C. § 1326(a), (b). Although the officer initiated the stop based on the reasonable belief that the vehicle lacked a license plate, after he pulled it over, he observed that it did, in fact, display a " dealer tag" but continued the detention to question the vehicle's occupants to determine whether the plate's use was lawful. Because we conclude that the officer could not have reasonably suspected criminal activity after he saw a dealer plate but before he began questioning the vehicle's occupants, we hold that the continued detention of Pena-Montes violated the Fourth Amendment's prohibition against unreasonable searches and seizures.

          Notwithstanding the foregoing treatment of the primary issue on appeal, when evidence of an individual's identity is discovered through routine booking procedures incident to an unlawful arrest, that evidence is not suppressed unless the arrest was purposefully exploited to learn the identity. See United States v. Olivares-Rangel, 458 F.3d 1104, 1115-16 (10th Cir.2006). Having rejected Pena-Montes' Fourth Amendment argument, the district court had no occasion to determine the purpose of Pena-Montes' booking. We thus cannot determine whether the evidence of Pena-Montes' identity must be suppressed on the record before us. Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion.



         Before we recount the material facts, it is necessary to resolve confusion engendered by the terminology used in the record. The district court referred to the tag at issue as a " dealer demonstration tag." In their briefing, the government and Pena-Montes use the term " dealer tag." However, both of these terms are foreign to New Mexico law. Rather, the New Mexico Statutes regulate " demonstration permits" and " dealer plates," both of which are issued to licensed dealers. Compare N.M. Stat. § 66-3-6(F) (demonstration permits), with § 66-3-401 (dealer plates).

         During trial, the officer effectuating the stop testified that the sole purpose of the type of plate displayed is the demonstration of vehicles, a characteristic consistent with demonstration permits. See N.M. Stat. § 66-3-6(F). However, in the proceedings below, the government volunteered N.M. Stat. § 66-3-401 as the operative statute. In its order denying the motion to suppress, the district court cited that same provision. Similarly, both parties cite § 66-3-401 before this court.

          When reviewing the denial of a motion to suppress, we " view[ ] the evidence in the light most favorable to the government and accept[ ] the factual findings of the district court unless they are clearly erroneous." United States v. Karam, 496 F.3d 1157, 1161 (10th Cir.2007). Though factual ambiguity exists, it is unnecessary for this court to determine whether construing

Page 1051

the record to suggest a dealer plate or a demonstration permit would be more favorable to the government. In agreeing on the operative statute, the parties treat as undisputed fact that the Yukon bore a dealer plate; and in basing its ruling on § 66-3-401, the district court implicitly made a factual finding to that effect. Such a finding was not clearly erroneous. We therefore premise our analysis on the fact that the Yukon bore a dealer plate, viewing that factual determination in the light most favorable to the government. With this issue resolved, we proceed.


         At approximately 9:00 p.m. on the evening of November 9, 2007, Officer Michael Hernandez of the Albuquerque Police Department (" APD" ) observed a GMC Yukon traveling eastbound on Central Avenue. Hernandez did not see a license plate on the Yukon, a violation of New Mexico law, prompting him to engage his emergency equipment and pull the vehicle over. As Hernandez approached the vehicle on foot, he observed a dealer plate displayed in the rear window of the vehicle. Undaunted, he continued to approach the driver.

         After the driver identified himself as Jeremy Crain, Hernandez asked for his driver's license, vehicle registration, and proof of insurance. Crain produced his driver's license and stated that he owned the vehicle, but he could not produce the registration, bill of sale, or proof of insurance, leading Hernandez to suspect the vehicle was stolen. Hernandez knew that within the past year or so, auto dealerships in and around Albuquerque had reported car thefts during which demonstration permits and dealer plates were also taken and used to disguise stolen cars. Upon questioning, Crain told Hernandez that he had a handgun in the car. Hernandez then ordered both occupants to exit the vehicle and wait near the curb while he radioed in the vehicle identification number (" VIN" ).

         After Hernandez learned that the vehicle had not been reported stolen, a second APD Officer, Daniel Morales, arrived on scene. The officers patted down Crain and his passenger, later revealed to be Pena-Montes. Morales took from the passenger two cell phones, a pair of sunglasses, and $1,800. Because the passenger did not have identification, Hernandez then asked for his name, date of birth, and social security number. The passenger gave his name as Marcus Garcia and claimed to have an Arizona driver's license, but Hernandez could not find a database record matching the name, social security number, and birth date " Marcus Garcia" provided.

         Suspecting the passenger was lying about his identity, Hernandez questioned Crain and the passenger further. The passenger gave a different birth date and social security number than he had previously, and his and Crain's explanations of how they knew each other were also at odds. Based on these answers, Hernandez handcuffed the passenger and took him into custody for concealing his identity.1 See N.M. Stat. § 30-22-3. He then transported the passenger first to APD's identification unit, then to a detention center for booking. After being fingerprinted twice, the passenger was identified through a national database as Jose Luis Pena-Montes.

Page 1052

          A day later, Immigration and Customs Enforcement (" ICE" ) interviewed Pena-Montes at the detention center. ICE records showed that he had previously been convicted of a felony in California state court and subsequently deported. Based on this history, Pena-Montes was indicted on one count of reentry of a removed alien after a felony conviction in violation of 8 U.S.C. § 1326(a) and (b).

         After being indicted, Pena-Montes moved to suppress all evidence derived from the traffic stop, including his identity. The district court held a hearing on the motion, during which Hernandez and Pena-Montes testified. Concluding that Hernandez reasonably suspected illegal activity when he initiated questioning of Pena-Montes and that probable cause for arrest arose from Pena-Montes' inconsistent answers, the court denied Pena-Montes' suppression motion.

         Following that denial, Pena-Montes entered a conditional guilty plea, reserving his right to appeal the suppression ruling. This appeal followed.


          Although we view the evidence in the light most favorable to the government, whether a seizure is reasonable under those facts is a question of Fourth Amendment law we review de novo. Karam, 496 F.3d at 1161. Similarly, when a question of state law is implicated, as here, we " [r]eview [ ] the district court's construction of ... state law de novo. " United States v. DeGasso, 369 F.3d 1139, 1144 (10th Cir.2004).

          A routine traffic stop is indisputably a seizure within the meaning of the Fourth Amendment. United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1226 (10th Cir.2008). However, because a traffic stop is " necessarily [a] swift action predicated upon the on-the-spot observations of the officer on the beat," an officer need only reasonably suspect that a crime is in the offing to justify such a detention. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Karam, 496 F.3d at 1161. Terry set forth a two-step framework for determining the constitutional scope of a traffic stop: (1) the stop must be " justified at its inception," and (2) the resulting detention must be " reasonably related in scope to the circumstances that justified the stop in the first place." United States v. Winder, 557 F.3d 1129, 1133-34 (10th Cir.2009) (quotations omitted). " Generally, an investigative detention must last no longer than is necessary to effectuate the purpose of the stop." Id. at 1134 (quotation omitted).

          Reasonable suspicion arises when " an officer of reasonable caution" has a " particularized and objective basis...

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