U.S. v. Orrego-Fernandez

• Citation: 78 F.3d 1497
• Decision Date: 19 March 1996
• Docket Number: D,ORREGO-FERNANDE,No. 95-4011,95-4011
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luisefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1497

78 F.3d 1497

UNITED STATES of America, Plaintiff-Appellee, v. Luis ORREGO-FERNANDEZ, Defendant-Appellant.

No. 95-4011.

United States Court of Appeals,

Tenth Circuit.

March 19, 1996.

Appeal from the United States District Court for the District of Utah (D.C. No. 93-CR-222).

G. Fred Metos, Salt Lake City, Utah, for Defendant-Appellant.

Bruce C. Lubeck, Assistant United States Attorney (Scott M. Matheson, Jr., United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, BARRETT, Circuit Judge, and KERN, District Judge. ^*

SEYMOUR, Chief Judge.

Mr. Luis Orrego-Fernandez was convicted of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) after the district court denied his motion to suppress the evidence seized as a result of the stop, detention, and search of the pickup truck he was driving. He contends on appeal the district court erroneously (1) rejected the credibility findings of the magistrate, (2) found that Trooper Miller observed alterations to his truck, (3) held lawful the stop and his detention, and (4) found voluntary his consent to the search of the truck he was driving. We affirm.

I.

Mr. Orrego-Fernandez was driving a 1987 Mazda pickup truck north on Interstate 15 at approximately sixty miles per hour. Utah Highway Patrol Trooper Douglas R. Miller was traveling south on Interstate 15 at approximately sixty to sixty-five miles per hour. As the trooper passed Mr. Orrego-Fernandez, he noticed that the truck did not have a front license plate, was freshly painted, and appeared to have been altered. Trooper Miller turned his vehicle and followed Mr. Orrego-Fernandez. The trooper noted that the truck had a rear Pennsylvania license plate but did not know whether Pennsylvania required a front license plate. He confirmed the truck was altered as he followed and pulled into the lane next to it. Eventually he turned on his overhead lights and stopped the truck.

Trooper Miller further confirmed the truck was altered as he approached the driver's side. When he requested a driver's license and truck registration, Mr. Orrego-Fernandez produced a New Jersey driver's license bearing his name but was unable to produce a registration. Instead he offered an insurance card which indicated the truck was registered in Pennsylvania to Mr. Jose Caez. Trooper Miller asked Mr. Orrego-Fernandez if he had permission to use the truck. Mr. Orrego-Fernandez replied that he did and stated that Mr. Caez was his cousin. The trooper then informed Mr. Orrego-Fernandez he had stopped him because of a possible registration violation. Trooper Miller testified, however, that he actually stopped the truck because he suspected it had a hidden compartment which probably contained drugs or guns.

Trooper Miller went back to his car to verify Mr. Orrego-Fernandez's license and the registration of the truck. The dispatcher stated that no information could be found with respect to Mr. Orrego-Fernandez's license but verified that the owner of the truck was Mr. Caez. The trooper returned to the truck and, while holding Mr. Orrego-Fernandez's license and the insurance card, asked if there were any guns or drugs in the truck. Mr. Orrego-Fernandez responded that there were no guns or drugs. Trooper Miller then asked if he could search the truck for guns and drugs, to which Mr. Orrego-Fernandez responded, "sure, if you want to." Rec., supp. vol. III, at 34. The trooper requested Mr. Orrego-Fernandez to get out of the truck and stand on the shoulder. In the meantime, two additional troopers arrived on the scene. Trooper Miller searched the exterior of the truck for further signs of a hidden compartment and found that the gas tank intake hose had been altered and that there was a gap between the end gate and the bed of the truck. Both modifications indicated to him that the truck contained a hidden compartment. Trooper Miller testified he then arrested Mr. Orrego-Fernandez because he thought the alterations to the truck gave him probable cause to believe it contained a hidden compartment which held guns or drugs. Mr. Orrego-Fernandez and the truck were transported to the sheriff's office where Trooper Miller obtained a warrant for a further search. On further inspection, officers discovered 109 kilogram packages of cocaine in a hidden compartment.

The district court designated a magistrate judge to conduct a hearing on Mr. Orrego-Fernandez's motion to suppress evidence. The magistrate recommended that the evidence be suppressed. The district court reviewed the magistrate's findings and the objections thereto, rejected some of the findings, and denied Mr. Orrego-Fernandez's motion to suppress. Mr. Orrego-Fernandez entered a conditional guilty plea and this appeal followed.

II.

As an initial matter, Mr. Orrego-Fernandez contends the district court erred under 28 U.S.C. § 636(b)(1) by rejecting the magistrate's credibility determination without rehearing the testimony. Mr. Orrego- Fernandez insists the case should be remanded with an order requiring the district court either to take testimony or adopt the magistrate's recommendations.

Under section 636(b)(1)(B), the district court may designate a magistrate judge to hear certain pretrial motions, including a motion to suppress evidence in a criminal case. With respect to such "dispositive" motions, the district court may "designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of [the] motion." 28 U.S.C. § 636(b)(1)(B). The statute further provides that the district court

shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

28 U.S.C. § 636(b)(1). " 'De novo review is statutorily and constitutionally required.... Where circumstances indicate that the district court has not conducted such review following timely objection to the magistrate's report, the case must be remanded for compliance with the statute.' " Bratcher v. Bray-Doyle Indep. Sch. Dist., 8 F.3d 722, 724 (10th Cir.1993) (quoting Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991)). However, "the express references to de novo review in [the district court's] order must be taken to mean it properly considered the pertinent portions of the record, absent some clear indication otherwise." Id. In United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 2411-12, 65 L.Ed.2d 424 (1980), the Supreme Court held that section 636(b)(1) requires "a de novo determination, not a de novo hearing" where a district court adopts the recommendation of the magistrate. In a footnote, the Court said "we assume it is unlikely that a district judge would reject a magistrate's proposed findings on credibility when those findings are dispositive and substitute the judge's own appraisal; to do so without seeing and hearing the witness or witnesses whose credibility is in question could well give rise to serious questions which we do not reach." 447 U.S. at 681 n. 7, 100 S.Ct. at 2415 n. 7. The Court's caveat, however, was directed only to findings that are dispositive.

Thus, before we determine whether the district court is required to rehear testimony, we must decide whether the magistrate's credibility findings were dispositive or material to the district court's holding. The district court here stated it would make a de novo determination, and then held that the alterations to the truck observed by Trooper Miller, given his experience with similar alterations to similar trucks, constituted reasonable suspicion. The question is whether the magistrate made material, contrary credibility findings with respect to Trooper Miller's testimony that he observed the truck's alterations.

The magistrate first noted that Trooper Miller testified he made certain observations as he passed the truck going the opposite direction. The magistrate found that Trooper Miller could not have made the asserted observations because of the distance between, and speed of, the respective vehicles. This credibility finding is not material because Trooper Miller did not base his stop on that observation. The trooper also testified he confirmed his observations when he followed the truck prior to the stop. The magistrate did not find otherwise.

We have thoroughly reviewed the record and conclude that the magistrate did not make material credibility findings contrary to the district court's conclusion. The magistrate did not specifically discredit Trooper Miller's testimony regarding his closer observations of the alterations. Nor did the magistrate's credibility findings address Trooper Miller's demeanor or any other factor gleaned from live testimony. Instead, the magistrate personally observed the truck's alterations but concluded that they were consistent with innocent behavior. ¹ The district court disagreed and held that the alterations constituted reasonable suspicion of criminal activity. Whether the alterations were innocent in nature is not a credibility determination. Because the magistrate's credibility findings were not material to the district court's ultimate determination, we do not address whether a district court's rejection of such findings requires rehearing the testimony.

III.

We review the factual findings in support of a district court's denial of a motion to suppress evidence under the clearly erroneous standard. United States v. Betancur, 24 F.3d 73, 76 (10th Cir.1994). We consider the evidence in the light most favorable to the district court's ruling. United...