U.S. v. Fernandez

Decision Date11 March 1994
Docket NumberNo. 93-4011,93-4011
Citation18 F.3d 874
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Edelmiro Augustin FERNANDEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Edward K. Brass, Salt Lake City, UT, for defendant-appellant.

Scott M. Matheson, Jr., U.S. Atty., and Kevin L. Sundwall, Asst. U.S. Atty., Salt Lake City, UT, for plaintiff-appellee.

Before SEYMOUR and MOORE, Circuit Judges, and BROWN, * District Judge.

SEYMOUR, Circuit Judge.

Defendant Edemiro A. Fernandez was indicted by a federal grand jury for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1988). Fernandez filed a motion to suppress evidence. After an evidentiary hearing, the magistrate judge recommended denying Fernandez's motion to suppress. The district court adopted the magistrate's Report and Recommendation in its entirety. Fernandez entered a conditional guilty plea reserving his right to appeal the denial of his motion to suppress on Fourth Amendment grounds. After reviewing the record, we reverse.


Trooper Lance Bushnell of the Utah Highway Patrol was patrolling southbound on Interstate 15 near Nephi, Utah when he observed a blue GMC pickup truck with a camper shell traveling northbound. He noticed the windows appeared to be tinted darker than permitted under Utah law. Bushnell went to the next turnaround, turned north onto the highway, and traveled about eight or nine miles before he caught up with the truck, which was apparently traveling fast. At no time did Bushnell clock the truck's speed or plan to stop it for a speeding violation. When Bushnell eventually caught up with the truck, he pulled alongside it to visually confirm that the windows were too dark. He noticed the driver's side window was one third down and that the driver, Fernandez, glanced over at him. The truck then pulled partially over into the emergency lane on the right side of the highway and traveled there for approximately a quarter of a mile at reduced speed. Bushnell had not yet activated the patrol lights of his vehicle. Bushnell considered the driver's behavior unusual and suspicious. He dropped back behind the truck, and the truck reentered the travel lane of the highway and resumed its speed. Bushnell then activated his lights and pulled the truck over for excessively tinted windows and improper lane travel.

Bushnell approached the vehicle and asked for Fernandez's driver's license and registration. Both documents were in Fernandez's name. Bushnell felt a "tension in the air" and noticed Fernandez's hand was trembling when he reached for his registration. Aplt.App., Suppression Hearing, 1/8/92, at 24, 26 (hereinafter Aplt.App.). Blanch, the passenger, was sleeping on the front seat next to Fernandez, and a young boy was behind the front seat. During the encounter Blanch woke up and appeared startled upon seeing a trooper in the window of the truck. He sat stiffly during the encounter. Bushnell asked for and received Blanch's identification.

In response to Bushnell's inquiries, Fernandez and Blanch informed Bushnell that the boy was Blanch's son and that they were taking him from Los Angeles to Chicago to visit his grandmother. This seemed unusual to Bushnell who asked if it wasn't more cost-effective or efficient to fly the boy to Chicago instead of driving. Mr. Fernandez replied that they had checked on airline tickets and mentioned a price of $500. Bushnell then returned to his patrol car with Fernandez's license and registration. Bushnell testified that due to the truck occupants' nervousness, he became suspicious and concerned for his safety. He therefore radioed for backup and requested a NCIC computer check on the vehicle and its occupants.

Officer Mangelson arrived after six or seven minutes to assist Bushnell. As Bushnell returned to the driver's side of the truck, Mangelson approached the passenger side. Bushnell had a warning citation and Fernandez's license and registration in his possession. He also retained Blanch's identification. Without returning these papers, Bushnell started to ask a series of questions. He asked if there were any weapons in the truck and also inquired whether there were any drugs or other contraband in the vehicle. Fernandez replied in the negative, and both occupants said they did not use drugs. Bushnell asked Fernandez why he was so nervous. During his testimony at the suppression hearing, Bushnell could not recall Fernandez's response, but he did recall that the answer was unsatisfactory. Fernandez and Blanch appeared to get increasingly nervous as the encounter continued.

Bushnell testified that Fernandez was not free to leave once he had been stopped. Without returning Fernandez's license or registration, or Blanch's identification, Bushnell asked for permission to look in the truck. Fernandez and Blanch started to exit the vehicle without answering Bushnell verbally so Bushnell asked Fernandez again, "Do you understand I want to search the truck?" Fernandez replied, "I understand, go ahead." Brief of Aplt., App. at 10 (Magistrate Report & Recommendation) (hereinafter Report); Aplt.App. at 39.

Bushnell and Mangelson started searching the truck together. As they pushed the front seat forward, they observed a compartment covered by a piece of carpet. When they pulled back the carpet, they saw through a seam in the compartment what appeared to be numerous kilograms of cocaine. The troopers arrested Fernandez and Blanch. An inventory search of the truck uncovered 123 kilograms of cocaine in various hidden compartments.

The magistrate judge concluded that the stop was not pretextual because the Utah Highway Patrol Unit to which Bushnell was assigned regularly enforces the tinted window law by arresting or issuing citations to Utah drivers and warning out-of-state drivers who are in violation of the law. The magistrate judge found that Fernandez's driver's license and vehicle registration were not returned to him until after the arrest, but held that Bushnell had reasonable suspicion justifying the continued detention. Finally, although the magistrate judge found that "at the time of the consent to search Fernandez was still being detained," Report at 20-21, he nevertheless held that Fernandez's consent to search was voluntary. He denied the motion to suppress and the district court adopted the Report and Recommendation in its entirety.


In reviewing the Fourth Amendment claims of Fernandez, we uphold the factual findings of the district court unless they are clearly erroneous. United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). We are mindful that at a hearing on a motion to suppress, the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge. United States v. Werking, 915 F.2d 1404, 1406 (10th Cir.1990). However, the ultimate determination of reasonableness under the Fourth Amendment is a question of law which we review de novo. Walker, 933 F.2d at 815.

Fernandez raises three Fourth Amendment claims. First, he contends the stop was pretextual because a reasonable officer under the circumstances would not have made the stop in the absence of an invalid purpose. Second, he argues that his detention beyond the time necessary to issue a citation was not based on reasonable suspicion. Finally, he contends that he did not give free and intelligent consent to search his truck. We address each of these claims in turn.


A pretextual stop occurs when an officer uses some legal justification to stop a person or vehicle in order to investigate unrelated criminal matters for which the officer lacks reasonable suspicion. See United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988). In Guzman, we defined the test to be applied to claims of pretextual stop. To determine whether an investigative detention is unconstitutional as a pretext we ask " 'not whether the officer could validly have made the stop, but 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)).

Applying the Guzman test, the district court concluded that the stop was not pretextual. It stated that Bushnell and the "Utah Highway Patrol unit to which Trooper Bushnell was attached enforced the Utah window tinting law on a regular basis." Aplt.App. at 8, 11. The district court noted that it is the policy of the Utah Highway Patrol Unit to which Bushnell is assigned to issue warning tickets to out-of-state vehicles in violation of the tinted window law and that Bushnell issued sixty-three such warnings between July and November of 1991, as well as seven citations. Thus, it appears that Bushnell routinely stops and issues warning citations to out-of-state motorists for excessively tinted windows. The routine practices of an individual officer, however, will not preclude a finding of pretext if an objectively reasonable officer under the same circumstances would not have made the stop absent an invalid purpose. See Guzman, 864 F.2d at 1517.

There is considerable objective evidence in the record suggesting that, although this stop was not unusual for Bushnell, a reasonable officer in the same circumstances might not have stopped Fernandez's truck in this case. For example, while Bushnell issued sixty-three warning citations for tinted windows over a five month period, statistics for Bushnell's unit reveal that in the same five month period one officer issued no warnings, two officers issued one warning each, one officer issued three warnings, and another officer issued twenty warnings. See Aplt.App., exh. at 13. Assuming, in accordance with the stated policy of Bushnell's unit, that each of these warning citations resulted from the...

To continue reading

Request your trial
207 cases
  • People v. Haley, No. 01SA148
    • United States
    • Colorado Supreme Court
    • November 27, 2001
    ...exhibit signs of nervousness when confronted by a law enforcement officer." Wood, 106 F.3d at 948; see also United States v. Fernandez, 18 F.3d 874, 879-80 (10th Cir.1994)(stating that "nervousness is of limited significance in determining reasonable suspicion" and that the government's rep......
  • U.S. v. Garcia Hernandez
    • United States
    • U.S. District Court — District of Utah
    • December 17, 1996
    ...Id. p. 1248. The officer suspected a stolen vehicle, the court upheld the detention Id. p. 1251 quoting from United States v. Fernandez, 18 F.3d 874, 879 (10th Cir.1994) ".... a defendant's lack of a valid registration, license, bill of sale, or some other indicia of proof to lawfully opera......
  • State v. Johnson
    • United States
    • North Carolina Supreme Court
    • August 13, 2021
    ...the probative value of an officer's observation that the defendant was nervous during a traffic stop. See, e.g. , United States v. Fernandez , 18 F.3d 874, 879 (10th Cir. 1994) ("We have repeatedly held that nervousness is of limited significance in determining reasonable suspicion and that......
  • U.S. v. Bennett, No. 01-8101.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 22, 2003
    ...to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge." United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.1994). Nevertheless, we review de novo the ultimate determination of reasonableness under the Fourth Amendment because it is a......
  • Request a trial to view additional results
2 books & journal articles
  • Using Legislative History as a Tool of Statutory Construction in Kansas
    • United States
    • Kansas Bar Association KBA Bar Journal No. 71-5, May 2002
    • Invalid date
    ...vehicle in question gives rise to objectively reasonable suspicion that the vehicle may be stolen.") (quoting United States v. Fernandez, 18 F.3d 874, 879-80 (10th Cir.1994)). 67. United States v. Arango, 912 F.2d 441, 443, 447 (10th Cir. 1990) (driver who produced valid vehicle registratio......
  • Miles of Asphalt and the Evolving Rule of Law: Are We There Yet?
    • United States
    • Kansas Bar Association KBA Bar Journal No. 71-5, May 2002
    • Invalid date
    ...vehicle in question gives rise to objectively reasonable suspicion that the vehicle may be stolen.") (quoting United States v. Fernandez, 18 F.3d 874, 879-80 (10th Cir.1994)). 67. United States v. Arango, 912 F.2d 441, 443, 447 (10th Cir. 1990) (driver who produced valid vehicle registratio......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT