U.S. v. Greenspan, 93-2139
| Decision Date | 06 June 1994 |
| Docket Number | No. 93-2139,93-2139 |
| Citation | 26 F.3d 1001 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Harry GREENSPAN, aka Alfred A. Lugo, aka Alfred Anthony Lugo, aka Alex Lugo, aka Alex Stone, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Peter Schoenburg of Rothstein, Donatelli, Hughes, Dahlstrom, Cron and Schoenburg, Albuquerque, NM, for appellant.
Louis E. Valencia, Asst. U.S. Atty. (U.S. Atty., Larry Gomez with him on the brief), for appellee.
Before EBEL and McKAY, Circuit Judges, and VAN BEBBER, District Judge. *
The defendant-appellant, Harry Greenspan, appeals from the district court's denial of his motion to suppress physical evidence found in his car after a traffic stop on Interstate 25 in New Mexico. We affirm in part, reverse in part, and remand the case for further proceedings.
On October 21, 1992, Harry Greenspan was stopped while driving north on Interstate 25 between Albuquerque and Santa Fe by two New Mexico State Police officers, Jimmy R. Salmon and James Montoya. The officers testified that they stopped Greenspan for driving 74 miles per hour in a 65 mile-an-hour zone.
Prior to stopping Greenspan on I-25, Officers Salmon and Montoya had travelled from Albuquerque to Santa Fe to obtain new body armor. They rode together in Officer Salmon's patrol unit. In Santa Fe, the officers were issued their new body armor and visited the state police mechanic's office to inquire about a new patrol unit for Officer Salmon. The officers left Albuquerque at approximately 2:30 p.m. While returning to Albuquerque, the officers decided to turn on the patrol car's radar equipment when they entered the Albuquerque patrol district at approximately mile marker 252 on I-25. They had not engaged the radar during their earlier drive north to Santa Fe or until this point in their return trip.
Immediately after turning on the radar equipment, Officer Salmon, the driver and radar operator, locked on and visually observed defendant's northbound vehicle in the fast lane of traffic exceeding the posted speed limit and travelling at 74 miles per hour. The officers crossed the median and pulled over defendant's vehicle at approximately 3:30 p.m. Officer Salmon approached defendant's vehicle, and as he did so, the driver started to get out of his vehicle. Officer Salmon asked the driver to remain in the vehicle and then approached the driver. Officer Salmon testified that immediately upon the driver rolling down his window, he smelled a strong odor of marijuana. Officer Salmon explained to the driver that he had stopped him for travelling 74 in a 65 mile-per-hour zone and asked for his driver's license. He observed that the driver was very nervous. The driver was Harry Greenspan, but gave his name as Alfred Lugo.
Officer Salmon then explained to Greenspan what he was going to do, and returned to his patrol car to write a traffic citation. While writing the citation, Officer Salmon told Officer Montoya that he smelled a strong odor of marijuana coming from the vehicle. Officer Montoya asked Officer Salmon for the name of the driver. Officer Salmon told Officer Montoya that the driver's name was Alfred Lugo. Montoya recognized the name as one that he had heard in the context of a previous case.
Nearly a month before the stop of Greenspan, Officer Montoya had stopped a man named Michael Haigerty on a nearby stretch of highway, Interstate 40, for speeding. Officer Montoya discovered marijuana in Haigerty's car. Upon being questioned by the police, Haigerty named the supplier of his marijuana as a man he knew by the name of Alfred Lugo. Haigerty also told another New Mexico State Police narcotics agent, Glenn Kelsey, that Lugo drove a blue Mercury Marquis of late 1980's vintage.
Officers Salmon and Montoya then approached defendant's car. Montoya was on the passenger side of the vehicle and Salmon was on the driver's side. Both testified that they smelled marijuana. Officer Salmon explained to Greenspan his options concerning the speeding citation. Greenspan responded that he would mail in his fine. Officer Salmon then asked Greenspan if he was carrying anything illegal and Greenspan said "no." Officer Salmon then asked Greenspan for permission to search the car and its contents. Officers Salmon and Montoya testified that Greenspan consented.
Officer Salmon asked Greenspan to step out of the vehicle. After walking to the rear of the car, Officer Salmon asked Greenspan for the keys to the trunk and was told they were in the ignition. Officer Salmon took the keys from the ignition and opened the trunk, where marijuana was discovered under a sheet, wrapped in clear plastic and placed in trash bags with baking soda between the bags. Upon being notified by Officer Salmon that there was marijuana in the trunk, Officer Montoya arrested Greenspan. A search of Greenspan revealed $3,600.00 in cash and two additional small baggies of marijuana.
Greenspan was indicted and charged with possession with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B), and filed a motion to suppress the physical evidence obtained during the October 21, 1992, search. A suppression hearing was held by the district court, at which time testimony was adduced concerning the New Mexico State Police policies on speeding violations. Officer Montoya testified that it was the state police policy to stop all speeders and that he consistently stops persons travelling nine miles over the limit. Officer Salmon testified that he would not issue traffic citations to persons driving in the "traffic flow" at speeds of 65 to 68 miles per hour. Officer Montoya stated that he would not stop a car going 74 miles per hour only if everybody in the flow of traffic was driving 75 or faster. Evidence was also presented concerning the specific number of traffic stops made by Officers Salmon and Montoya in the months before and after the stop of Appellant Greenspan.
At the suppression hearing, the trial court denied defendant's request to rewrap the marijuana seized from his vehicle in order to conduct a "smell test" of the marijuana's odor. The purpose of the proposed experiment was to impeach the arresting officers' testimony concerning the strong odor of marijuana emanating from defendant's car at the time of the stop.
The motion to suppress was denied by the trial court orally at the hearing, followed by a written order dated March 2, 1993. On March 8, 1993, Greenspan filed a motion for recusal of the trial judge based upon the judge's evidentiary rulings and in-court statements. It was denied. Also on March 8, 1993, Greenspan entered a plea of guilty to one count of possession of less than fifty kilograms of marijuana contrary to 21 U.S.C. Secs. 841(a)(1) and (b)(1)(C). The guilty plea reserved Greenspan's right to appeal the trial court's denial of his motion to suppress.
On April 21, 1993, the trial court sentenced Greenspan to a term of 51 months to be followed by supervised release for three years, and to pay a special assessment of $50.00. At the sentencing hearing, Greenspan amended the affidavit accompanying his prior motion for recusal and renewed the motion based upon allegations that the district judge had received information concerning an investigation into alleged threats on the judge's life by Greenspan. It was denied. Greenspan filed a timely notice of appeal.
In reviewing the district court's denial of a motion to suppress evidence, we must accept the court's factual findings unless they are clearly erroneous and must consider the evidence in the light most favorable to the government. United States v. Abreu, 935 F.2d 1130, 1132 (10th Cir.), cert. denied --- U.S. ----, 112 S.Ct. 271, 116 L.Ed.2d 224 (1991). The ultimate question of whether a search and seizure was reasonable under the Fourth Amendment is a question of law that we review de novo. Id.
We review the district court's denial of the motion for recusal under an abuse of discretion standard. United States v. Burger, 964 F.2d 1065, 1070 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1854, 123 L.Ed.2d 477 (1993). The trial court's decision to exclude an in-court reconstruction of the circumstances of the case--here, the so-called marijuana "smell test"--will also be reviewed for abuse of discretion. United States v. Wanoskia, 800 F.2d 235, 238 (10th Cir.1986).
Appellant Greenspan appeals the trial court's denial of his motion to suppress on the ground that the officers' stop of his vehicle was unconstitutionally pretextual. Greenspan contends that because of Officer Montoya's previous involvement with the arrest of Michael Haigerty, the officers lay in wait for Greenspan's vehicle, visually recognized his car from the description given by Haigerty, and hoped to intercept him with a load of marijuana. Greenspan argues that the claimed purpose of the stop of his vehicle for travelling nine miles per hour over the posted speed limit was merely a pretext for stopping him to search for drugs.
As has often been stated by this court, "a pretextual stop occurs when 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." United State v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988). In Guzman, this court adopted the following test for determining whether an investigatory stop is unconstitutional: "[A] court should 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.' " 864 F.2d at 1517 (citing United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986)). Thus, the court's inquiry is objective rather than a subjective examination of the...
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