U.S. v. Fernandez-Castillo

Decision Date08 April 2003
Docket NumberNo. 01-30398.,01-30398.
Citation324 F.3d 1114
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rigoberto FERNANDEZ-CASTILLO, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Robert Kelleher, Jr., Kelleher Law Office, Billings, MT, for the defendant-appellant.

Lori Harper Suek, Assistant United States Attorney, Great Falls, MT, and Shelley Hicks, Assistant United States Attorney, Billings, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CR-00-00084-RFC.

Before: FERGUSON, FISHER, and TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge.

We are asked to decide whether an officer had a reasonable suspicion that the driver of a car was impaired, justifying an investigatory traffic stop of that car, where: (1) the vehicle had been reported as driving erratically; (2) the officer who stopped the vehicle knew the source of the report; (3) the report described the vehicle in detail, noting the car's color, make and model, and state license plate; (4) the report was made contemporaneously with the source's observations of the erratic driving; (5) the officer discovered the car in the area where the report indicated that the car would likely be found; (6) the officer noticed that the driver was sitting very close to the steering wheel, a behavior the officer knew was typical of impaired drivers; and (7) the officer corroborated the report of erratic driving by observing the car weave within its lane. Given the totality of these circumstances, we hold that the district court correctly found, after an evidentiary hearing, the existence of a reasonable suspicion that the operator of the car was impaired and properly held that the investigatory stop of the vehicle was constitutional.


On the afternoon of September 18, 2000, Montana Department of Transportation (MDOT) employees Jay Harvey and Terry Omland were traveling eastbound on Interstate 94 outside Miles City, Montana. They stopped on the median strip of the divided freeway to pick up debris and then re-entered traffic. Harvey was accelerating their state maintenance truck to highway speed when he noticed a car approach in his rear-view mirror. The car caught Harvey's attention because its left-turn signal light was blinking, but the car did not move to the left lane. Instead, the car straddled the center line of the two eastbound lanes. The car eventually passed Harvey and Omland's truck while traveling in the right lane. After it passed, the driver signaled and moved over into the left lane. After it did so, Harvey and Omland noticed the car cross the yellow line that ran along the median. The car passed two other vehicles and then slowly drifted back to the right lane and across the fog line to the shoulder of the interstate. It then drifted back towards the left lane, where the driver-side tires touched the center line.

Concerned that the driver of the vehicle was impaired, Harvey and Omland decided to report their observations to the Montana Highway Patrol. In his twenty-two-year tenure at the MDOT, this was the second time Harvey had decided to report such erratic driving. Harvey radioed his MDOT dispatcher in Miles City. The MDOT dispatcher then relayed the report of erratic driving to the Montana Highway Patrol dispatcher. The MDOT dispatcher told the Highway Patrol dispatcher that "one of our guys" called in about an older model black Monte Carlo near milepost 116 on eastbound Interstate 94 whose driver was "evidently driving quite erratically." She stated that the car had North Dakota license plates that the MDOT employee thought read "7575." An MDOT log recorded the time of Harvey's report as 2:18 p.m.1

Officer Calvin Schock received the report of erratic driving at 2:21 p.m. from the Billings, Montana, Highway Patrol dispatcher while he was at his office in Miles City. The dispatch conveyed the following information: a black Monte Carlo with North Dakota license plates heading eastbound on Interstate 94 was seen driving erratically near milepost 116. The dispatch also indicated that the report came from the MDOT.

Officer Schock immediately left his office and headed westbound on Interstate 94 in an attempt to locate the black Monte Carlo. Near milepost 134, Schock saw a vehicle traveling eastbound that matched the described vehicle. As the car passed, Schock noticed that the driver was sitting very close to the steering wheel, a behavior that Schock, as a veteran traffic officer with eleven years of experience and hundreds of DUI arrests, associated with impaired drivers. Schock made a U-turn and began following the Monte Carlo. He activated his cruiser's video recorder and began filming the vehicle's driving performance. The car matched the description radioed-in by Harvey. Soon after he caught up to the Monte Carlo, Schock noticed the car drift in its lane and then observed "one rather large movement towards the center line and then back again."

As the patrol car got close to the Monte Carlo, the driver decided to exit into Miles City. Officer Schock stopped the car on the freeway exit off-ramp at milepost 138. At the suppression hearing, Schock explained why he stopped the Monte Carlo even though he did not personally observe the driver of the car commit a traffic violation, such as crossing the traffic lines:

I probably would have followed [the car] a little longer if it had stayed on the interstate, but as the car started to take and go off the exit right at that time, it kind of raised the bar for me a little bit because now, if we're following it, if we do have an impaired driver, we're going to a — I know there's a stop sign at the end of the exit ramp. We're getting into two-lane traffic where traffic is oncoming. And I decided it would be better, safer for everybody, if I made the stop before we got into town.

After stopping the Monte Carlo, Schock approached the vehicle to contact the driver. As Fernandez rolled down the window Schock immediately smelled marijuana coming from inside the car. Schock also noticed a piece of ash on the driver's lip. After determining that the driver, Rigoberto Fernandez-Castillo (Fernandez), was in the country illegally, Schock detained Fernandez on an immigration hold. Pursuant to a state search warrant, the car was later searched, and officers discovered over 500 grams of methamphetamine hidden in a speaker cabinet in the backseat. Fernandez was indicted by a federal grand jury on one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).

Fernandez moved to suppress the evidence found in the search on the ground that the original traffic stop was not based on reasonable suspicion and was therefore a violation of the Fourth Amendment. After a suppression hearing, the district court found that the traffic stop was justified from its inception and denied the motion.

A jury found Fernandez guilty of the drug count charged in the indictment. Fernandez appeals, arguing that the district court erred by not suppressing evidence that was fruit of the unlawful stop of his car.2 We affirm.


We review de novo the district court's denial of a motion to suppress evidence. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Factual findings of the district court are reviewed for clear error. United States v. Hammett, 236 F.3d 1054, 1057 (9th Cir.2001).

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, an investigatory traffic stop "is permissible under the Fourth Amendment if supported by reasonable suspicion." Ornelas, 517 U.S. at 693. In deciding whether Officer Schock had a reasonable suspicion that Fernandez was operating the Monte Carlo while impaired, which would justify the stop of Fernandez's car, we must, as the Supreme Court has repeatedly instructed us, consider the totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). All relevant factors must be considered in the reasonable suspicion calculus — even those factors that, in a different context, might be entirely innocuous. Id. at 277-78, 122 S.Ct. 744. The district court properly concluded on this factual record that the report of Fernandez's erratic driving observed and called-in by MDOT employees, coupled with Officer Schock's own corroborating observations, gave rise to a reasonable suspicion that Fernandez was impaired sufficient to justify an investigatory stop.


We begin our analysis by discussing the relevance of the MDOT report conveyed to Officer Schock. For a third-party report of suspected criminal activity to form the basis of an officer's reasonable suspicion, that report must possess sufficient indicia of reliability. See Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). For several reasons, we think the MDOT report was reliable and therefore must be considered in the reasonable suspicion calculus.3

Most significantly, the report of erratic driving came from a known source: the MDOT. The MDOT dispatcher knew that MDOT employee Jay Harvey provided the report; indeed, Harvey's name was written as the source on the MDOT log introduced into evidence at the suppression hearing.

When relaying Harvey's report to the Highway Patrol, the MDOT dispatcher informed the Highway Patrol dispatcher that "one of our guys" called in the report and that the driver was "evidently driving quite erratically." Although the Highway Patrol dispatcher distilled and paraphrased this information in passing it on to Officer Schock, the dispatcher's knowledge is properly considered as part of our analysis of reasonable suspicion. See ...

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