United States v. Benard

• Decision Date: 25 May 2012
• Docket Number: No. 11–4005.,11–4005.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Reshard BENARD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

680 F.3d 1206

UNITED STATES of America, Plaintiff–Appellee,

v.Reshard BENARD, Defendant–Appellant.

No. 11–4005.

United States Court of Appeals,Tenth Circuit.

May 25, 2012.

J. Edward Jones, Heber, UT, for Defendant–Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (Carlie Christensen, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff–Appellee.

Before GORSUCH, HOLLOWAY, and McKAY, Circuit Judges.

McKAY, Circuit Judge.

In this criminal appeal, Defendant Reshard Benard challenges the district court's denial of his motion to suppress evidence obtained during a vehicle stop on January 16, 2009. Following the denial of his suppression motion, Defendant entered a conditional plea of guilty to conspiracy to manufacture cocaine base and possession of a firearm as a convicted felon. He was then sentenced to a twenty-year sentence, the mandatory minimum for his conspiracy charge.

Background

In 2008, the FBI began investigating an individual named Gessiel Sanchez, who was allegedly dealing drugs out of the tire store he managed in Salt Lake City, Utah. From December 16, 2008, until January 23, 2009, the FBI conducted an authorized wiretap on Mr. Sanchez's phone. Among those who frequently called Mr. Sanchez, the FBI identified one individual they dubbed “Tommy.” Although Tommy and Mr. Sanchez never expressly mentioned drugs, the FBI concluded that Tommy was purchasing cocaine from Mr. Sanchez based on the context, including the per-ounce prices discussed and Tommy's complaint regarding the amount of product when “cooked up.” Tommy also made a few phone calls in which he talked about purchasing tires, and in these phone calls he did not request products in ounces.

The intercepted phone calls suggested that Tommy purchased drugs from Mr. Sanchez on approximately ten occasions, with all or almost all of their meetings occurring at Mr. Sanchez's tire shop. Because the surveillance team was not always available, the FBI attempted surveillance of only five or so meetings between Tommy and Mr. Sanchez. On these occasions, the surveillance team observed Defendant arriving at the store and then leaving within about five minutes. Defendant was also observed purchasing tires from the store on one occasion. By checking the license plate number on Defendant's white Cadillac, FBI agents were able to determine Defendant's name. Agents from the surveillance team then confirmed that the photo on his driver's license matched the person they had observed meeting with Mr. Sanchez following Tommy's phone calls. When they checked his records, the FBI also discovered that Defendant had previously been convicted of possessing a firearm in furtherance of a drug-trafficking offense.

On January 16, 2009, Tommy and Mr. Sanchez had a series of phone calls setting up a sale. In a phone call that morning, Tommy asked Mr. Sanchez what he could get for $1,300. Mr. Sanchez asked whether he wanted “1 1/2 or 2.” (R. vol. 2 at 26.) In reply, Tommy said he wanted 2 1/2 and would “make it up to [Mr. Sanchez] later.” ( Id.) Based on previous phone calls establishing that Mr. Sanchez sold cocaine for approximately $650 per ounce, FBI agents concluded that Defendant was requesting Mr. Sanchez to sell him two ounces and front him an additional half ounce of cocaine. Around 1 pm, Mr. Sanchez called Tommy and told him “it's ready.” ( Id.) Tommy replied, “[G]ive me about 15 minutes.” ( Id.) At 2:02 pm, Mr. Sanchez called Tommy, who said he would be there in five minutes. Mr. Sanchez replied, “[Y]ou have three minutes.” ( Id.)

At “[a]pproximately 2 o'clock,” agents from the surveillance team observed Defendant arriving at the tire store, where he stayed for about five minutes. ( Id. at 36.) When he left, surveillance units followed him. One of the investigating officers then contacted a trooper from the Utah Highway Patrol and asked him to conduct a “wall stop” on Defendant's vehicle. In a wall stop, a patrol officer is asked to find his own lawful reason to stop and search the vehicle and is not advised of the information known by investigators in order to protect the secrecy of the ongoing investigation. In this case, the surveillance units informed the trooper of Defendant's movements and told him Defendant was driving a white Cadillac with Utah license plate number A468RJ. The trooper was also informed of Defendant's history of weapons possession. The trooper then ran a check on Defendant's vehicle and received a message that no insurance was on file. Based on the apparent traffic violation of driving without insurance, the trooper initiated a traffic stop on the car, which pulled into a nearby residential driveway. Defendant immediately began getting out of the car, and the trooper told him to get back inside. After Defendant got back inside his vehicle, the trooper instructed him to show his hands, and Defendant complied. The trooper then approached Defendant's vehicle and instructed him to get out of the car. Defendant exited the car and approached the trooper, who briefly placed a hand on Defendant's back to guide him to the back of the car. Defendant's friends came out of the nearby residence to see what was happening, and the trooper instructed them to return inside. They complied.

The trooper then asked Defendant if he could pat him down, and Defendant agreed. While patting down Defendant's left pocket, the trooper felt something and asked if he could take it out. Defendant agreed to let the trooper remove it, telling him it was Mexican candy. This item was later found to contain cocaine. After removing the purported candy, the trooper patted down Defendant's right pocket and again found something he could not identify. When asked, Defendant told the officer that this item was weed, and he allowed the trooper to remove the item. The trooper saw that the item indeed appeared to be marijuana, and he accordingly handcuffed Defendant and took him into custody. The trooper then asked what else he might find in the car, and Defendant said there might be a gun left by his girlfriend. An officer who searched the car at the scene found a loaded gun inside the vehicle. At no point during the encounter was Defendant advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Following his indictment, Defendant filed a motion to suppress all of the evidence obtained as a result of the traffic stop. In addition to challenging the legality of the traffic stop as a whole, he also challenged the validity of his consent to the pat-down search and the admissibility of his un-Mirandized statements. The matter was referred to a magistrate judge, who held an evidentiary hearing and recommended that the motion to suppress be denied in full. The magistrate judge concluded that the traffic stop could be justified on either of two alternative grounds—(1) probable cause to believe the vehicle contained contraband, or (2) reasonable suspicion that Defendant was operating the vehicle without insurance. The magistrate judge further concluded that the pat-down search was consensual and that Defendant's statements did not need to be suppressed under Miranda. The magistrate judge's findings and conclusions were adopted by the district court, which accordingly denied Defendant's suppression motion. Defendant then entered a conditional guilty plea and was sentenced to twenty years' imprisonment. This appeal followed.

Discussion

In reviewing the denial of a defendant's motion to suppress, we view the evidence in the light most favorable to the government, accept the district court's findings of fact and credibility determinations unless clearly erroneous, and review de novo the ultimate question of reasonableness under the Fourth Amendment. United States v. Vazquez, 555 F.3d 923, 927 (10th Cir.2009). On appeal, Defendant challenges the denial of his suppression motion as it related to (1) the traffic stop itself; (2) the pat-down search; and (3) the failure to give Miranda warnings.

We first consider the district court's conclusion that the traffic stop was supported by probable cause. Under the automobile exception to the warrant requirement, police officers may stop and search a car if they have probable cause to believe it contains contraband, regardless of whether a traffic violation has occurred or a search warrant has been obtained. See United States v. Chavez, 534 F.3d 1338, 1343–45 (10th Cir.2008). “Probable cause to search a vehicle is established if, under the totality of the circumstances, there is a fair probability that the car contains contraband or evidence.” Id. at 1344 (quotation marks omitted). Under the collective knowledge doctrine, the officer who conducts the vehicle search does not need to be aware of the facts establishing probable cause, so long as he is acting on instructions delivered by an officer who has probable cause. See id. at 1345–47. Defendant does not dispute that the trooper who conducted the traffic stop would have probable cause under the collective knowledge doctrine if the FBI agents had probable cause. He simply argues that probable cause was lacking because there was insufficient evidence to tie him to any drug trafficking at the tire store.

In essence, the parties' arguments on this issue boil down to one question—did the investigating officers have probable cause to believe Defendant was the drug buyer they had designated as “Tommy”? Defendant argues that “the fact that his appearance at a tire store sometimes coincided with tapped phone calls” is insufficient to establish probable cause (Appellant's Opening Br. at 19), especially since the surveillance team observed him actually purchasing tires from the tire store and installing them on his vehicle. However, although the officers may not have had air-tight proof that Defendant was Tommy, we conclude that the facts were sufficient to establish probable cause. There were around...