Alejandre v. State

• Decision Date: 04 October 1995
• Docket Number: No. 25340,25340
• Citation: 111 Nev. 1235,903 P.2d 794
• Parties: , 64 USLW 2271 Aurelio Pintor ALEJANDRE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 794

903 P.2d 794

111 Nev. 1235, 64 USLW 2271

Aurelio Pintor ALEJANDRE, Appellant, v. The STATE of Nevada, Respondent.

No. 25340.

Supreme Court of Nevada.

Oct. 4, 1995.

Frederick B. Lee, Jr., Public Defender, Elko County, for appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District Attorney and Sherburne M. MacFarlan, III and Robert Lowe, Deputy District Attorneys, Elko County, for respondent.

OPINION

YOUNG, Justice:

FACTS

John Martinez ("Mr. Martinez"), an agent with the Drug Enforcement Agency ("DEA"), observed two vehicles, a Grand Marquis and appellant Aurelio Pintor Alejandre's ("Aurelio") Ranchero truck, heading east on Interstate 80. Mr. Martinez became suspicious because the vehicles were being driven in tandem, had California plates and tinted windows.

Mr. Martinez called the Nevada Highway Patrol ("NHP") and discovered that both vehicles were registered in Oakland, California. The Grand Marquis was registered to a body shop from which a different vehicle had previously been seized for narcotics related activity. Mr. Martinez also ran a "lane check" on the vehicles that reveals whether they had ever crossed the U.S./Mexican border. The Grand Marquis apparently crossed the border six months prior. Aurelio's truck, however, was not registered to the body shop nor did it come up on the "lane check." Mr. Martinez called his office and was told that these facts were not sufficient "articulable facts" to stop either vehicle. Regardless, Mr. Martinez called the NHP to obtain assistance in stopping the vehicles. At that point, Mr. Martinez had followed the vehicles from Fernley to about ten miles outside Winnemucca.

NHP Trooper Thomas E. Ames ("Trooper Ames") received a call from the dispatcher telling him to "develop probable cause to stop the vehicle [Aurelio's truck]." Trooper Ames caught up with Aurelio's truck and followed it for about four miles. Trooper Ames testified that on two occasions he witnessed Aurelio's truck cross over the fog line, the white line on the right-hand side of the road, about "a tire width." However, Trooper Ames admitted that he was basically looking for some reason to pull the truck over. In fact, even after Aurelio's truck crossed the fog line, Trooper Ames waited until an exit to pull Aurelio's truck over to where there was better light, indicating that Trooper Ames was not worried about the recklessness of Aurelio's driving.

Trooper Ames testified that it was apparent Aurelio did not speak English. Nonetheless, Trooper Ames, to search Aurelio's truck, had Aurelio sign a consent form that was written in English. Trooper Ames did not orally translate the consent form for Aurelio. After Aurelio signed the consent form, Trooper Ames put him in handcuffs.

Trooper Ames then searched the truck and found skis, poles, tools and some clothes, but no contraband. Trooper Ames then called in a drug dog. With the drug dog's assistance, Trooper Ames discovered marijuana by removing the taillights of Aurelio's truck.

Before trial, Aurelio, maintaining that the stop of his truck was pretextual and that he did not give consent, filed a motion to suppress the evidence discovered during the search of his truck. The district court denied the motion to suppress. The district court, adhering to the philosophy of the United States Courts of Appeals for the Seventh and Eighth Circuits, determined that the stop of Aurelio's truck did not constitute an unconstitutional pretextual stop. In addition, the district court determined that Aurelio consented to the search.

Aurelio was convicted, pursuant to a jury verdict, of one count of possession of a controlled substance. Aurelio was sentenced to six years in the Nevada State Prison. Aurelio appeals, arguing that the traffic stop and subsequent search were violative of the Fourth Amendment of the United States Constitution. We agree.

DISCUSSION

It is well established that an arrest may not be used as a pretext to search for evidence. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932). "[A] pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop." United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988).

In determining whether the stop violated the Fourth Amendment, an objective test should be utilized. "Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken." Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978).

However, two conflicting objective tests have emerged. The first test, labeled the "would" test, asks whether a reasonable officer would have stopped the vehicle in the absence of an invalid purpose. See United States v. Miller, 821 F.2d 546, 549 (11th Cir.1987). The second test, labeled the "could" test, focuses on whether the officer was legally authorized to make the stop. See United States v. Meyers, 990 F.2d 1083, 1085 (8th Cir.1993). In applying the "could" test, "the stop 'remains valid even if the officer would have ignored the traffic violation but for his other suspicions.' " Id. (quoting United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir.1990), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991)).

We conclude that this court should follow the United States Court of Appeals for the Ninth Circuit in adopting the "would" test. See United States v. Hernandez, 55 F.3d 443, 445 (9th Cir.1995) (affirming that the Ninth Circuit follows the "would" test); United States v. Cannon, 29 F.3d 472, 476 (9th Cir.1994) ("[W]e treat our previous cases as consistent with the Tenth and Eleventh Circuits' objective 'would have' standard."). ¹

Although the United States Supreme Court has not directly addressed the issue of pretextual stops, the "would" test is consistent with the Court's analysis of Fourth Amendment "pretext" questions. In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Court analyzed whether the police had impounded an automobile that had outstanding parking tickets as a pretext to search it for drugs. The Court stated that "there is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive." Id. at 376, 96 S.Ct. at 3100 (footnote omitted). An inquiry into "standard procedure" is an inquiry into whether reasonable officers would have impounded a vehicle with outstanding parking tickets, absent an invalid purpose (to search it for drugs).

We conclude that the reasoning articulated by State v. Chapin, 75 Wash.App. 460, 879 P.2d 300, 304 (1994), is persuasive in adopting the "would" test. Chapin noted:

We decline to follow a pure objective approach [the "could" test] for two reasons.

First, if a court's inquiry is limited to determining whether the police had a lawful basis for making the stop which lead [sic] to the search and/or seizure, logically there can no longer be a pretext rule. This is because, under a pure objective approach, an officer's actions are per se reasonable if they are pursuant to lawful authority. The entire purpose of the pretext rule is to deter police from using their lawful authority to detain a person for a minor offense in order to investigate or search for evidence of a more serious offense.... We reject this approach because it extinguishes the rule.

Second, under a pure objective approach, there is no basis for judicial review of an officer's use of the discretionary power to stop so long as the stop has a lawful basis.

Id. (emphasis in original); see also United States v. Smith, 799 F.2d 704 (11th Cir.1986).

Because the district court concluded that it would follow the authority of the Seventh and Eighth Circuits, and not the Ninth Circuit, in making its decision, we conclude that the district court incorrectly applied the "could" test in determining whether or not to suppress the evidence obtained from Aurelio's truck.

In applying the "would" test, the stop of Aurelio's truck clearly violated the Fourth Amendment. The appropriate inquiry is whether Trooper Ames would have stopped Aurelio for crossing the fog line, absent the desire to search Aurelio's truck for drugs. ² Trooper Ames would have acted reasonably only if he stopped every car that he observed crossing the fog line. See United States v. Strickland, 902 F.2d 937, 940 (11th Cir.1990).

If a trooper would have generally stopped a vehicle for going over the fog line, the trooper would have issued a citation or at the very least informed the driver as to why he was stopped. In the case at bar, Trooper Ames demonstrated that crossing the fog line is a very minor violation when he did not bother to inform Aurelio of the violation. Consequently, we conclude that in the case at bar, this was not the usual traffic violation that prompts reasonable officers to stop vehicles. See United States v. Miller, 821 F.2d 546 (11th Cir.1987) (holding that a reasonable officer would not have pulled over a vehicle that crossed over the white painted lane marker about four inches).

In addition, when the stop is suggested by someone who has no traffic related duties and there is no probable cause for that individual to stop the vehicle, then that indicates the stop was pretextual. See United States v. Millan, 36 F.3d 886, 889 (9th Cir.1994) (the fact that the stop was suggested by a city interdiction officer was an additional factor pointing toward pretext). In this case, Mr. Martinez suggested the stop and the facts which gave rise to his suspicions were...