U.S. v. Cardenas-Alatorre

• Decision Date: 08 May 2007
• Docket Number: No. 06-2101.,06-2101.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus CARDENAS-ALATORRE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

485 F.3d 1111

UNITED STATES of America, Plaintiff-Appellee, v. Jesus CARDENAS-ALATORRE, Defendant-Appellant.

No. 06-2101.

United States Court of Appeals, Tenth Circuit.

May 8, 2007.

Roger A. Finzel, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before HENRY, ANDERSON, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Jesus Cardenas-Alatorre seeks reversal of his conviction for possession with intent to distribute a substantial quantity of methamphetamine, contending primarily that the statute under which he was stopped while driving on a New Mexico highway is unconstitutionally vague and, therefore, the drugs discovered pursuant to that stop should have been suppressed. The state statute in question makes it a misdemeanor for a car's license plate to be obscured by "foreign material," at least in any way that renders the plate less than "clearly legible." Reluctant to venture into constitutional thickets unnecessarily, we hold that, whatever the constitutional status of the statute in question, the arresting officer acted in an objectively reasonable manner and, under Supreme Court precedent, this suffices to permit the fruits of the search to be used against Mr. Cardenas-Alatorre. It is on this basis that we affirm his conviction.

I

Around noon on May 11, 2005, Deputy Peter Roth of the Bernalillo County Sheriff's Department stopped Mr. Cardenas-Alatorre on Interstate 40 just outside of Albuquerque, New Mexico. Appellant's Br. 3; Tr. at 9-11.¹ Deputy Roth testified that he pulled over Mr. Cardenas-Alatorre because a license plate frame, one of those supplied by auto dealers anxious for free advertising, obscured a portion of the license plate on his car — specifically, the entirety of the name of the state of registration, Arizona. Tr. at 10. This, Deputy Roth believed, constituted a violation of a New Mexico statute requiring a license plate to be attached to the rear of every vehicle that is "clearly visible[ ] and . . . free from foreign material and in a condition to be clearly legible." N.M. Stat. Ann. § 66-3-18(A) (1998 N.M. Laws, Ch. 48, § 4 (eff. July 1, 1998)) (in effect on May 11, 2005).² The license plate frame did not, however, obscure other pertinent information, including the license plate number, the registration stickers, the image of the distinctive Arizona saguaro cactus, or the top half of the state's "Grand Canyon State" motto. Tr. at 37-40; Def.'s Ex. A. During questioning by the district court judge, Deputy Roth admitted that, based on the information that was visible, the license plate "appeared" to be issued by Arizona, though he had qualms it might be "fictitious" because he could not see the word "Arizona." Tr. at 40.

During the ensuing conversation with Mr. Cardenas-Alatorre, Deputy Roth expressed his concern about the obscuring license plate frame and then asked for, and obtained, Mr. Cardenas-Alatorre's vehicle registration, insurance information, and driver's license. Tr. at 12-13.³ In doing so, Deputy Roth detected that "there was an extreme odor of air freshener which is, in my past experience, a masking agent" for drugs; he also thought Mr. Cardenas-Alatorre appeared "extremely nervous." Id. at 14-15. Accordingly, Deputy Roth ordered Mr. Cardenas-Alatorre to step out of the vehicle. Id. at 18. After conducting a computer investigation in his patrol car, Deputy Roth confirmed that the car driven by Mr. Cardenas-Alatorre was not stolen and no outstanding warrants existed for either Mr. Cardenas-Alatorre or his passenger, Felis Sosa-Reyes. Id. at 21. Deputy Roth then turned on the video camera affixed to his patrol car, returned Mr. Cardenas-Alatorre's documents, and issued Mr. Cardenas-Alatorre a citation for failure to display the license plate properly. Id. at 21-22.⁴

As the traffic stop wound down, Deputy Roth asked Mr. Cardenas-Alatorre if he could speak with him further, to which Mr. Cardenas-Alatorre responded, "About?" Id. at 23, 88-89. Deputy Roth replied by asking whether Mr. Cardenas-Alatorre had any illegal items inside the car, including drugs, to which Mr. Cardenas-Alatorre answered in the negative. Id. at 24-26, 58-59. Deputy Roth next sought permission to search the vehicle. Mr. Cardenas-Alatorre variously shrugged and nodded his head affirmatively in response. Id. at 25-26, 59-60; see generally DVD. Deputy Roth asked the question again and Mr. Cardenas-Alatorre then verbally responded definitively, yes. Id. at 60-61.⁵ At about this point, New Mexico State Police Sergeant Rudy Mora, who had been patrolling the area independently, saw Deputy Roth's car and stopped at the scene. Id. at 27-28, 99. Sergeant Mora had with him a trained narcotics detection dog. Id. at 27, 99-100; DVD. As Sergeant Mora walked the dog around the perimeter of the vehicle, the dog alerted to the area near the glove box. Tr. at 100-03. Deputy Roth then searched that area and found two wrapped packages containing methamphetamine. Id. at 31-33.

Mr. Cardenas-Alatorre moved the district court to suppress the methamphetamine seized during the traffic stop and to dismiss the indictment. In support of these motions, Mr. Cardenas-Alatorre argued (i) that the traffic stop was an unlawful seizure because it was based upon an unconstitutionally vague statute; (ii) even assuming the statute were constitutional, Deputy Roth did not have reasonable suspicion to stop Mr. Cardenas-Alatorre because he did not violate the statute; and (iii) Mr. Cardenas-Alatorre did not voluntarily consent to the search of his car. The district court rejected these arguments and Mr. Cardenas-Alatorre thereafter pled guilty subject to his right to appeal the district court's denial of his motions. Appellee's Br. 6.⁶

II

Before us, Mr. Cardenas-Alatorre argues primarily that the fruits of the officers' search of his car should be suppressed because the New Mexico statute at issue, at least as applied,⁷ is unconstitutional. Mr. Cardenas-Alatorre submits that the statute is so opaque that police officers and prosecutors can use it as something of a blank slate on which to write their own private conceptions of what the law ought to be, thereby effecting traffic stops capriciously and in violation of the Constitution's prohibition against statutes of "standardless sweep" that fail to establish "minimal guidelines to govern law enforcement." Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

The curative aim of the void for vagueness doctrine is vital and twofold, seeking to ensure that penal statutes "define the criminal offense with sufficient definiteness" in order both to apprise the citizenry of what conduct is prohibited and to prevent police from arbitrarily enforcing the laws and thereby effectuating a form of state-sanctioned discrimination. Kolender, 461 U.S. at 357, 103 S.Ct. 1855. The arbitrary enforcement problem is especially troublesome because it carries with it the potential to emasculate the rights of citizens — conditioning their ability to go about their daily business on "the whim of any police officer." See Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965).⁸ If the New Mexico statute was, as Mr. Cardenas-Alatorre alleges, unconstitutionally vague as applied in this case, it follows that the traffic stop and the search of the car culminating in the methamphetamine find would have occurred in violation of his Fourth Amendment right against unreasonable searches and seizures. The traditional remedy for such violations, of course, is the exclusion of the evidence obtained as a result of the unlawful search. Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987); see also Hudson v. Michigan, ___ U.S. ___, 126 S.Ct. 2159, 2163-64, 165 L.Ed.2d 56 (2006); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

But this remedy is not exceptionless. The Supreme Court has repeatedly instructed that the exclusionary rule ought not to be deployed when officers act in good faith — that is, in "objectively reasonable reliance" upon a statute — even though the statute ultimately may be found unconstitutional. Krull, 480 U.S. at 355, 107 S.Ct. 1160; see also United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The rationale animating the good faith exception is, we are told, in harmony with the underlying purpose of the exclusionary rule, for if "the officer is acting as a reasonable officer would and should act in similar circumstances[, e]xcluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty." Leon, 468 U.S. at 920, 104 S.Ct. 3405 (internal quotation omitted).

We find this exception applicable and dispositive here. Even assuming (without deciding) that Mr. Cardenas-Alatorre is correct that the New Mexico statute is unconstitutional as applied to him, we are unable to conclude that Deputy Roth acted in an objectively unreasonable manner.⁹ Although the statute's opening directive that license plates must be located "in a place and position so as to be clearly visible," might not, when read in isolation, be the most specific statutory command known to bar and bench, the following clause adds that the plate must "be maintained free from foreign material and in a condition to be clearly legible." This latter language arguably complements what precedes, narrowing the contours of the conduct prohibited by the statute.¹⁰ Under this view, the law, taken as a whole, sets out to proscribe "foreign material" (including the auto dealer's advertising frame) to the extent that it prevents all of the plate from being clearly legible — that is, readable.¹¹

This understanding of the statute — allowing officers to effect stops only when foreign material...