U.S. v. Gonzalez

• Decision Date: 24 May 1985
• Docket Number: No. 84-1603,84-1603
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Antonio GONZALEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1127

763 F.2d 1127

UNITED STATES of America, Plaintiff-Appellee, v. Jose Antonio GONZALEZ, Defendant-Appellant.

No. 84-1603.

United States Court of Appeals Tenth Circuit.

May 24, 1985.

Jack G. Goldberg, New York City, for defendant-appellant.

Mark D. Jarmie, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., with him on briefs), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Jose Antonio Gonzalez appeals from his conviction after a guilty plea of knowingly and unlawfully possessing, with the intent to distribute, a quantity of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Pursuant to Fed.R.Crim.P. 11, the court permitted defendant to preserve for appeal the denial of his motion to suppress evidence. He contends on appeal that the search of his automobile, which revealed the cocaine, was illegal.

A state patrolman stopped the car defendant was driving in New Mexico on Interstate 40 at 9:00 p.m. in January 1984 for a speeding violation. As the officer approached the vehicle, which contained defendant and a woman passenger, defendant stepped out of the car. The officer noticed an "extremely strong odor of some kind of deodorizer" which he testified at the suppression hearing is often used to mask the odor of narcotics. Defendant gave the officer a valid New York state driver's license as well as a valid California registration and a valid, though unsigned, California car title document. While defendant waited at the roadside, the officer stopped another car, issued a warning to that driver, and let that car proceed. Defendant, in response to the officer's questions, stated that he was going to a Holiday Inn in Albuquerque to give the car to the owner. The defendant, however, could not name the car's owner or tell the officer how to get in touch with that owner.

The officer, who retained the driver's license, the registration, and the title, asked defendant to follow him to the state police office three to four miles away. The officer testified at the suppression hearing that the purpose of the trip was to verify that the car was not stolen and for their "safety and protection" from oncoming traffic. He also testified that he suspected defendant was engaging in other criminal activity aside from the traffic violation, although he was unable to articulate particular facts--other than the deodorizer smell and the unusual combination of automobile license, registration, and title documents-- that might give rise to a finding of probable cause. In the few minutes it took to drive to the state police office, the officer received word on his car radio that there were no warrants outstanding against defendant and that the car had not been reported stolen. At the police office, the officer prepared the speeding citation as well as a consent to search form. After issuing the citation and while retaining the car documents, the officer asked defendant to sign the consent form. Defendant signed the form. The search of the car revealed approximately eighty pounds of cocaine underneath the rear seat and in the side wall panels. Defendant claims that the officer detained him for approximately twenty minutes. Defendant was arrested after the search.

Following a suppression hearing, the district court determined that the stop was proper; that the defendant was not free to leave; that the officer was justified in detaining the defendant and exploring the possibility of a stolen car; and thus, that there were reasonable, articulable grounds for detaining defendant for a reasonable length of time to investigate the ownership of the car. The court also determined that the officer had smelled deodorizer in the car; that deodorizers are often used to mask the scent of narcotics; and that those facts, together with the car documentation, gave the officer articulable reasons to suspect that there were narcotics in the car and to make him want to search the car. It also found that defendant voluntarily and freely executed the consent to search. Nevertheless, the court specifically declined to find that the officer could have searched the vehicle on the basis of the information he had at the scene of the stop. The following exchange on this subject took place between defense counsel and the court:

"MR. BENAVIDEZ: Is the Court finding that the officer could have searched the vehicle with what he had at the scene of the stop?

THE COURT: I did not say that.

MR. BENAVIDEZ: Okay.

THE COURT: I did not say that. I said he had reasonable articulable grounds to detain the Defendant briefly and ask him to come back to Moriarty where they could see whether a consent to search could be obtained and, indeed, was obtained. I say he absolutely had grounds to return him to Moriarty in connection with the traffic--not the traffic violation but the ownership of the car and all of the other circumstances."

R. IV, 9-10.

Defendant contends on appeal that he was seized in violation of the Fourth Amendment, that his consent to search was the product of an unlawful arrest, and that, therefore, the subsequent seizure of the cocaine was unlawful. He concedes that the initial stop for speeding was lawful and that the limited detention for the purpose of issuing a speeding citation was proper. The government does not contest the court's finding that after the officer stopped defendant he was not free to leave.

Although we asked for and the parties have provided supplemental briefs on whether the New Mexico state police officer had probable cause at the time of the traffic stop either to arrest defendant or search his car, we are unable to discern sufficient facts here to support such probable cause. Cf. Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam) (suspicion based on circumstances common to many innocent travelers did not support probable cause). We do not consider the proper parameters of a drug courier profile because the police officer here specifically denied that he was using any such profile. Instead, the officer stopped the defendant solely because he was speeding. In the course of his roadside conversation with defendant the officer smelled a deodorizer, which the officer said indicated to him that defendant was committing more than just a traffic violation. But the officer could not articulate facts that gave him a more specific cause for suspicion to justify a search. He just had bad intuitions about this driver, which later proved entirely correct.

Part of the officer's suspicion arose from the unusual combination of a driver bearing a New York driver's license, in a car with California plates and registered to a California owner, carrying an unsigned title, and headed for a Holiday Inn in Albuquerque to meet with an unknown owner at an uncertain time. We would unduly hamstring police officers if we told them they must turn their back on such bizarre circumstances. These facts obviously raise a reasonable suspicion that the car might be stolen and they warrant detention of a suspect for a reasonable time while the officer checks the car's ownership. The police officer had a car radio and contact thereby with dispatchers who had instant access to the National Crime Information Center (NCIC) computer records that could quickly resolve, with reasonable certainty, whether there were warrants outstanding against the driver and whether the car had been reported stolen. The officer here availed himself of these modern techniques and received a negative answer to his queries about the car in less time than it took to drive the three to four miles to the station office. Had the officer remained with defendant on the side of the highway, as is customary in routine traffic stops, he could have issued his speeding ticket and obtained all available information about the suspected car theft in a matter of minutes. ¹

If the officer still had thoughts that defendant had done something else illegal he could have asked defendant for consent to search the car then and there. See Schneckcloth v. Bustamonte, 412 U.S. 218, 228, 232, 93 S.Ct. 2041, 2048, 2050, 36 L.Ed.2d 854 (1973) (consent searches "may result in considerably less inconvenience for the subject of the search," and they "normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions."). Had defendant refused to consent the officer would have been put to the choice of arresting defendant in order to conduct an involuntary search or letting him go. An arrest or search would require facts giving rise to probable cause. We construe the district court's findings to mean that there was not probable cause for such a search. The government has presented nothing that convinces us this finding was incorrect. ² Therefore we must confront whether the officer's request to have defendant accompany him to the police station, and once there whether his request for consent to search defendant's car, were acceptable as part of a valid Terry stop detention. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Two recent Supreme Court decisions are dispositive of this question. In United States v. Sharpe, --- U.S. ----, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), the Court declined to impose any per se rule for the acceptable length of a Terry stop and instead held that the length of the stop must be reasonable under the circumstances. Id. at ----, 105 S.Ct. at 1575. We cannot disagree with the district court's conclusions here that the length of this officer's stop was reasonable. Although the police officer equivocated about the time elapsed from the initial stop to the incriminating search, it clearly lasted only a short while.

Nevertheless, as the Court specifically noted in Sharpe, it did not have before it any challenge...