U.S. v. Martinez

• Citation: 983 F.2d 968
• Decision Date: 29 December 1992
• Docket Number: 91-4177,Nos. 91-4174,s. 91-4174
• Parties: 37 Fed. R. Evid. Serv. 968 UNITED STATES of America, Plaintiff-Appellee, v. Mary E. MARTINEZ, a/k/a Esperanza Lozada; and Clara J. Araujo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 968

983 F.2d 968

37 Fed. R. Evid. Serv. 968

UNITED STATES of America, Plaintiff-Appellee, v. Mary E. MARTINEZ, a/k/a Esperanza Lozada; and Clara J.

Araujo, Defendants-Appellants.

Nos. 91-4174, 91-4177.

United States Court of Appeals, Tenth Circuit.

Dec. 29, 1992.

Mary C. Corporon, of Corporon & Williams, P.C., Salt Lake City, UT, for defendant-appellant Mary E. Martinez.

Joseph C. Fratto, Jr., Salt Lake City, UT, for defendant-appellant Clara J. Araujo.

Bruce C. Lubeck (David J. Jordan, U.S. Atty., with him on the briefs), Asst. U.S. Atty., for plaintiff-appellee.

Before LOGAN and TACHA, Circuit Judges, and CAUTHRON, District Judge. ^*

TACHA, Circuit Judge.

In this consolidated appeal, Defendants Clara Araujo and Mary Martinez challenge their convictions on single counts of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Ms. Martinez also appeals her sentence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.

On April 4, 1991, a Utah highway patrolman observed a vehicle driving east on Interstate 80 at a slow rate of speed in the left or "fast lane" of the two-lane highway leading uphill and away from Salt Lake City. Due to its slow speed, faster-moving cars were forced to pull into the right lane to pass the vehicle. The patrolman pulled behind the slower vehicle and flashed his headlights in an effort to get the vehicle to move into the slower lane of traffic on the right. Instead of moving to the right lane, the vehicle decelerated.

The officer again flashed his headlights and waved his hand to signal the driver to pull into the right lane. However, the vehicle came to a complete stop in the left lane of the congested interstate. At this point, the officer turned on his emergency lights and signaled with his air horn for the vehicle to move to the right side of the highway. The driver complied and pulled to a stop in the breakdown lane.

As he approached the vehicle, the officer noticed the displayed Minnesota license plates were expired. Ms. Araujo, the driver, handed the officer a valid New Jersey operator's license as well as a Minnesota car title showing a man named John Selega had transferred ownership of the vehicle to a Cheryl Clark of Minnesota three months earlier. Ms. Araujo provided no registration.

The officer asked Ms. Araujo who owned the car. Ms. Araujo stated she borrowed the car from a friend named Deanna or Diana Lopez in Las Vegas and the car belonged to Ms. Lopez's boyfriend. The officer testified he suspected the car was stolen and asked what was in the trunk in an effort to test Ms. Araujo's ability to identify the contents. Without comment, Ms. Araujo opened the trunk. Inside, the officer observed a blue suitcase and a spare tire that was not located in its designed compartment. He also noticed the trunk was shortened so that it did not extend under the rear window and was not what he considered a normal size trunk. Ms. Araujo then closed the trunk.

The officer contacted Mr. Selega by telephone and he confirmed he sold the car to Cheryl Clark in January. However, the officer was unable to locate anyone named Cheryl Clark to inquire further about ownership of the vehicle. A computer check revealed no reports of a stolen vehicle matching the car.

After inquiring as to the identity of the passenger, Ms. Araujo explained Ms. Martinez was a Colombian who spoke no English. As a result, the officer called for assistance from a Spanish-speaking officer who arrived approximately ten minutes later. The two officers then questioned the women separately, without advising either individual of their Miranda rights. ¹ The second officer questioned Ms. Martinez for only two minutes. Ms. Martinez explained they had left Los Angeles, stayed in Las Vegas, and were headed to Minnesota on a pleasure drive. Ms. Araujo, however, replied they had no particular destination and were just sightseeing.

The officers asked Ms. Araujo if they could inspect the trunk again. Although it is unclear which of the two women opened the trunk, Ms. Araujo insisted she had nothing to hide and walked to the rear of the car. The officers tapped the back panel of the trunk compartment and found it had considerable "give." They lifted the unsecured panel and observed what they believed were packages containing kilogram quantities of cocaine.

The officers arrested the two women and secured the vehicle at a highway patrol facility until they could obtain a search warrant the next day. Officers subsequently recovered 22.2 kilograms of high-grade cocaine from the trunk compartment. Following their arrest and Miranda warnings, Ms. Araujo stated they were indeed headed for Minnesota but neither of them knew drugs were hidden in the car. At the suppression hearing, both women testified their original car had broken down near Las Vegas and a woman named Cyndy Lopez, not Diana Lopez as named earlier, loaned them her boyfriend's car to go sightseeing. Neither woman knew the name of the boyfriend, however.

Citing numerous constitutional violations, both Ms. Araujo and Ms. Martinez moved to suppress all evidence and testimony acquired as a result of the stop. The district court adopted the magistrate judge's recommendation denying Defendants' motion to suppress the narcotics and statements made by both women. A jury trial resulted in guilty verdicts, and this appeal followed.

Both Defendants assert the district court erred in denying the motion to suppress, claiming (1) the initial stop was pretextual; (2) they had standing to assert a Fourth Amendment violation; (3) the officers had no probable cause to request permission to search the car; (4) no valid consent was issued for the search; (5) the subsequent search warrant resulted from the initial illegal search, thereby requiring suppression of the narcotics; (6) their detention was unreasonable; and (7) the stop resulted in a custodial interrogation requiring Miranda warnings. In addition, Ms. Martinez claims the trial court erred by denying her motion in limine to exclude evidence of her nationality and by refusing to grant a downward adjustment of her sentence by four points based on her alleged minimal role in the offense.

I

At the outset, Ms. Martinez claims the initial traffic stop was pretextual. She asserts the officer had only a hunch the two Hispanic women were involved in some illegal activity rather than basing the stop on legitimate grounds. Ms. Martinez contends they were traveling under the posted speed limit and the officer's explanation that he stopped them because they were traveling in the left lane was not reasonable. For support, she points to an expert's testimony at trial which contradicted the officer's account of the events leading to the stop. ² Ms. Martinez's argument lacks merit and support.

When reviewing the denial of a motion to suppress, we must accept the district court's fact findings unless those findings are clearly erroneous. United States v. Berryhill, 880 F.2d 275, 280 (10th Cir.1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 853, 107 L.Ed.2d 846 (1990). The district court accepted the officer's description of the events, finding the officer stopped the vehicle after it came to a complete halt in the left lane of the interstate. The record supports these findings and we therefore reject Ms. Martinez's attempt to relitigate the facts.

The standard for determining if the stop of a vehicle for a misdemeanor traffic infraction is pretextual turns on whether the stop was objectively reasonable under the circumstances. United States v. Guzman, 864 F.2d 1512, 1517 (10th Cir.1988) (citing United States v. Smith, 799 F.2d 704, 709-10 (11th Cir.1986)). We inquire "whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose." Id. (emphasis in original). In short, if officers in the jurisdiction routinely enforce the traffic law at issue, then the stop is not pretextual even if the officer "hoped to discover contraband during the stop." Id. at 1518. Stated differently, to show pretext, "the law enforcement officer must deviate from his usual practice." United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990).

While on routine patrol on Interstate 80, the officer observed Defendants' vehicle driving in the left lane and slower than the flow of traffic. ³ He noted other vehicles approaching Defendants' car from the rear had to move to the right lane to pass. After several attempts to signal the driver to move to the right lane, the vehicle came to a complete stop in the left lane before finally pulling off the right side of the road. The officer testified his normal practice after removing a slow vehicle from the fast lane is to issue a warning or a citation.

Given the facts detailed in the record, we conclude the officer's decision to stop the vehicle was " 'business as usual,' not a deviation from normal practice." Id. We believe the officer's decision to stop the vehicle was fully justified and consistent with his usual practice of enforcing Utah's motor vehicle laws. Ms. Martinez puts forth no evidence that convinces us otherwise.

II

Next, Ms. Araujo and Ms. Martinez assert they have standing to challenge the vehicle search and subsequent cocaine discovery because their exercise of dominion over the car also conveyed to them a reasonable expectation of privacy over the contents of the vehicle. We disagree.

Because the standing issue remains " 'invariably intertwined' " with substantive Fourth Amendment privacy rights analysis, logic dictates we "determine 'whether the challenged search or seizure violated the Fourth Amendment rights of [the] criminal defendant who seeks to exclude the evidence.' " United States v. Arango, 912 F.2d 441, 445 (10th Cir.1990) (quoting Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978)), cert. denied, --- U.S. ----, 111 S.Ct. 1318, ...