U.S. v. Botero-Ospina, BOTERO-OSPIN

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before SEYMOUR, Chief Judge, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, and LUCERO; STEPHEN H. ANDERSON; SEYMOUR, Chief Judge, with whom HENRY and LUCERO; LUCERO, Circuit Judge, with whom SEYMOUR, Chief Judge, and HENRY
• Citation: 71 F.3d 783
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlosefendant-Appellant.
• Docket Number: D,BOTERO-OSPIN,No. 94-4006
• Decision Date: 05 December 1995

Page 783

71 F.3d 783 64 USLW 2422 UNITED STATES of America, Plaintiff-Appellee,
v.
Carlos BOTERO-OSPINA, Defendant-Appellant. No. 94-4006. United States Court of Appeals,
Tenth Circuit. Dec. 5, 1995.

Page 784

R. Steven Chambers, Salt Lake City, Utah, for appellant.

Scott M. Matheson, Jr., United States Attorney (David J. Schwendiman, First Assistant U.S. Attorney, and Bruce C. Lubeck, Assistant U.S. Attorney, with him on the briefs), Salt Lake City, Utah, for appellee.

Page 785

Before SEYMOUR, Chief Judge, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, and LUCERO, Circuit Judges. ^*

STEPHEN H. ANDERSON, Circuit Judge.

On our own motion we granted in banc review in this case to review that portion of the panel opinion in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988), holding that the proper standard for determining whether a traffic stop is unconstitutionally pretextual is whether "under the same circumstances, a reasonable officer would have made the stop in the absence of the invalid purpose." Id. at 1517 (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986)). For the reasons set forth below, we hold that the Guzman standard should be overruled and we adopt a new test in this circuit for determining when an initial stop of an automobile violates the Fourth Amendment.

BACKGROUND

On March 9, 1993, Carlos Botero-Ospina was traveling eastbound on Interstate 70 just east of Salina, Utah. Deputy Phil Barney, of the Sevier County Sheriff's Department, was traveling westbound in his patrol car when he observed Mr. Botero-Ospina's vehicle swerve from the outside lane, straddle the center line, and swerve back to the outside lane. Deputy Barney testified at the suppression hearing that along this particular stretch of highway, midway between Los Angeles and Denver, drivers frequently experience fatigue. R. Vol. IV at 10-12. Thus, he decided to stop the vehicle to ensure that the driver was not falling asleep or driving under the influence of drugs or alcohol. ¹

Deputy Barney approached the vehicle and asked Mr. Botero-Ospina for his driver's licence and registration. The driver's license was that of Mr. Botero-Ospina, but the vehicle was registered in New Jersey to another man, Jamie Higuero. Mr. Botero-Ospina explained that he had recently purchased the vehicle from a woman in California and that she had told him he could obtain the title from a bank in New Jersey. Id. at 17-19. Mr. Botero-Ospina, however, was unable to identify the woman or to explain her connection to the registered owner of the vehicle, Mr. Higuero.

In response to the deputy's question regarding where he had been, Mr. Botero-Ospina indicated that he had just come from "Garfield." Deputy Barney, however, knew from his experience that there was no such town along Mr. Botero-Ospina's route. Given the unusual nature of the encounter, Deputy Barney then asked Mr. Botero-Ospina if he had any weapons or drugs. Mr. Botero-Ospina answered that he did not. The deputy asked if he could search the vehicle, to which Mr. Botero-Ospina responded "sure." Id. at 19-21.

The search resulted in the seizure of 74 kilograms of cocaine from a secret compartment in the vehicle. Mr. Botero-Ospina moved to suppress the cocaine, arguing, inter alia, that the initial stop of his vehicle was pretextual, in violation of the Fourth Amendment. Following a suppression hearing, the district court adopted the recommendation of the magistrate judge and denied the motion. Following his conviction and sentencing, Mr. Botero-Ospina filed this appeal.

DISCUSSION

I.

In reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous. United States v. McSwain, 29 F.3d 558, 560 (10th Cir.1994). The ultimate determination of reasonableness under the Fourth Amendment, however, is a question of law which we review de novo. United States v. Horn, 970 F.2d 728, 730 (10th Cir.1992). We view the evidence on appeal in the light most favorable to the government. United States v. Pena, 920 F.2d 1509, 1513 (10th Cir.1990),

Page 786

cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991).

A traffic stop is a seizure within the meaning of the Fourth Amendment, "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). An ordinary traffic stop is, however, more analogous to an investigative detention than a custodial arrest. United States v. Jones, 44 F.3d 860, 871 (10th Cir.1995); United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, 502 U.S. 1093, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). We therefore analyze such stops under the principles pertaining to investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Walker, 933 F.2d at 815. To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S.Ct. at 1879; see McSwain, 29 F.3d at 561; United States v. Dewitt, 946 F.2d 1497, 1501 (10th Cir.1991), cert. denied, 502 U.S. 1118, 112 S.Ct. 1233, 117 L.Ed.2d 467 (1992).

In United States v. Guzman, 864 F.2d 1512 (10th Cir.1988), we defined a pretextual traffic stop as one in which "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." Id. at 1515. We identified as the "classic example" of an unconstitutional pretext stop the case of an officer stopping a motorist for a minor traffic violation in order to investigate the officer's "hunch" that the individual is engaged in other illegal activity. Such a stop, we concluded, is not justified at its inception, and therefore violates the Fourth Amendment.

In Guzman, we adopted the following test to determine whether a stop is pretextual: " 'whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.' " Id. (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986)). This has become known as the "would" or the "usual police practices" standard. Time has proven the Guzman standard unworkable.

In our own circuit, its application has been inconsistent and sporadic. For example, while in Guzman we defined usual police practices in terms of the entire New Mexico police force, see Guzman, 864 F.2d at 1518, in United States v. Fernandez, 18 F.3d 874 (10th Cir.1994), we focused on the common practices of a particular unit of the Utah Highway Patrol. Id. at 877. In some cases we have specifically rejected an analysis which would consider the practices of an individual officer, id.; see Guzman, 864 F.2d at 1518, while in other cases we have focused exclusively on the practices of the individual officers. See United States v. Harris, 995 F.2d 1004, 1006 (10th Cir.1993); see also United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990). Additionally, since Guzman, we have only once, in United States v. Lyons, 7 F.3d 973, 975 (10th Cir.1993), relied on the "would" standard to reverse an order denying suppression. ² In every other case, we have either implicitly or explicitly concluded that the stop was not pretextual based upon the officer's having observed a traffic violation or having had reasonable suspicion that a violation was occurring. See, e.g., United States v. Dirden, 38 F.3d 1131, 1140 (10th Cir.1994); United States v. Betancur, 24 F.3d 73, 77 (10th Cir.1994); Harris, 995 F.2d at 1005-06; United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993); Horn, 970 F.2d at 731; United States v. Deases, 918 F.2d 118, 121 (10th Cir.1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2859, 115 L.Ed.2d 1026 (1991); Werking, 915 F.2d at 1408; United States v. Corral, 899 F.2d 991, 994 (10th Cir.1990); United States v. Erwin, 875 F.2d 268, 272 (10th Cir.1989).

Page 787

Moreover, the clear majority of other circuits considering the issue, as well as many state courts, including most within our circuit, have rejected the Guzman standard, either explicitly or implicitly. See United States v. Johnson, 63 F.3d 242, 247 (3d Cir.1995); United States v. Whren, 53 F.3d 371, 375-76 (D.C.Cir.1995), cert. granted, --- U.S. ----, 116 S.Ct. 690, --- L.Ed.2d ---- (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 207, 130 L.Ed.2d 136 (1994); United States v. Ferguson, 8 F.3d 385, 388-92 (6th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994); United States v. Hassan El, 5 F.3d 726, 729-31 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1374, 128 L.Ed.2d 50 (1994); United States v. Kelley, 981 F.2d 1464, 1467 n. 3 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2427, 124 L.Ed.2d 647 (1993); 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); United States v. Hope, 906 F.2d 254, 257-58 (7th Cir.1990), cert. denied, 499 U.S. 983, 111 S.Ct. 1640, 113 L.Ed.2d 735 (1991); State v. Corpany, 859 P.2d 865, 870 (Colo.1993) (en banc); Skelly v. State, 880 P.2d 401, 404 (Okla.Crim.App.1994); State v. Lopez, 873 P.2d 1127, 1136-37 & n. 4 (Utah 1994); Vrooman v. State, 642 P.2d 782, 784 (Wyo.1982); cf. United States v. Hadfield, 918 F.2d 987, 993 (1st Cir.1990), cert. denied, 500 U.S. 936, 111 S.Ct. 2062, 114 L.Ed.2d 466 (1991). But see United States v. Hernandez, 55 F.3d 443, 445 (9th Cir.1995); United States v. Harris, 928 F.2d 1113, 1116-17 (11th Cir.1991). ³

Because the Guzman standard is unworkable, we now...