U.S. v. Leyva-Serrano, LEYVA-SERRAN

• Decision Date: 03 November 1997
• Docket Number: D,No. 97-2051,LEYVA-SERRAN,97-2051
• Citation: 127 F.3d 1280
• Parties: 97 CJ C.A.R. 2717 UNITED STATES of America, Plaintiff-Appellant, v. Manuelefendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1280

127 F.3d 1280

97 CJ C.A.R. 2717

UNITED STATES of America, Plaintiff-Appellant, v. Manuel LEYVA-SERRANO, Defendant-Appellee.

No. 97-2051.

United States Court of Appeals, Tenth Circuit.

Nov. 3, 1997.

Charles L. Barth, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, NM, for the Appellant.

Joe M. Romero, Jr., Romero & Associates, P.A., Albuquerque, NM, for the Appellee.

Before BRISCOE, Circuit Judge, LUCERO, Circuit Judge, and McWILLIAMS, Senior Circuit Judge.

McWILLIAMS, Senior Circuit Judge.

In a one count indictment filed on August 7, 1996, Manuel Leyva-Serrano was charged with the possession of 50 grams of cocaine with an intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. Pursuant to Fed.R.Crim.P. 12(b)(3), on January 7, 1997, Serrano filed a motion to suppress the use at trial of the crack cocaine seized by the police in a search of his automobile, contending that the "stop and seizure" was unlawful. The government filed a response to the motion to suppress, contending that, under the circumstances, the "stop and seizure" was lawful.

An evidentiary hearing was held on the issues presented by the motion to suppress and response thereto on January 21, 1997, at which time Desi Garcia, a police officer for the City of Albuquerque who effected the "stop" and thereafter made the "search and seizure," testified at length. Serrano, a Cuban national expelled from Cuba who had been living in Albuquerque since 1993, also testified briefly. At the conclusion of the hearing, the district court, after argument of counsel, granted Serrano's motion to suppress, holding that the "stop" was not supported by reasonable, articulable suspicion as required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and, alternatively, that the ensuing search of Serrano's automobile and the seizure of the 50 grams of crack cocaine were improper since the "arresting police officer did not believe he was in any danger." The government then filed a timely notice of appeal pursuant to 18 U.S.C. § 3731. We reverse. This case turns on the facts and circumstances leading up to the stop and seizure, and they will be set forth in some detail.

In August, 1995, Garcia, a detective in the Albuquerque Police Department assigned to the homicide unit, was investigating two unsolved murders that had occurred in Albuquerque in July, 1995. One involved Cara Garner, a prostitute, who was shot and killed behind the Trade Winds Motel in Albuquerque. The second involved an Avelio Guzman, who was stabbed in the neck and then shot and killed. During the course of his investigation, Detective Garcia was advised by other members of the Albuquerque Police Department that Tracy Bankhead perhaps knew the person, or persons, who might be involved in these two homicides, or who, at least, might know something about the murders. Accordingly, Detective Garcia arranged an interview with Bankhead at police headquarters on August 31, 1995.

During the August 31st interview, Detective Garcia asked Bankhead questions about the Garner homicide, although he did not use the name "Garner," since Bankhead did not recognize that name, as such. Rather, Detective Garcia asked Bankhead about a prostitute who had been shot and killed behind the Trade Winds Motel in Albuquerque. In the interview, Bankhead stated that on one particular evening, a month or so prior to the interview, she and Serrano, and two others, had gone to the Trade Winds Motel to look for a prostitute who owed Serrano, and the others, money for narcotics. She said that Serrano and one of the others were armed. Bankhead also said that they were unable to locate the prostitute, and that the four of them returned to her residence. Bankhead went on to say that shortly thereafter the three men left her residence. The next day, according to Bankhead, she heard news reports that a prostitute had been shot to death behind the Trade Winds Motel.

As concerns the murder of Guzman, also a Cuban national, investigators were of the opinion that the person killing Guzman had, himself, received serious knife wounds in the course of the homicide. Guzman apparently died more-or-less on the spot, and a trail of blood lead away, and a long way, from the scene of the homicide. When interviewed by Detective Garcia, Bankhead stated that Serrano had received some sort of a "laceration" around the date of the Guzman homicide, although she thought it was slightly prior to the date of the murder. Bankhead also provided Detective Garcia with the addresses, phone numbers and pager numbers of Serrano and the others who had been with her at the Trade Winds Motel, and stated that Serrano could be located in the 400 block of Virginia SE in Albuquerque.

Based on the information given him by Bankhead, Detective Garcia considered Serrano a "suspect" in both the Garner and Guzman homicides. After the interview with Bankhead, Detective Garcia, on the same day, drove by the address on Virginia SE to look for an automobile owned by Serrano, which Bankhead had described as a red Pontiac convertible. Detective Garcia espied such a vehicle, and, after driving around the block, saw the vehicle pulling away from the curb. Detective Garcia followed in his unmarked police vehicle. As Detective Garcia followed, he noted the driver of the red Pontiac convertible "looking" at him in his side-view and rear-view mirrors. The driver of the red Pontiac did not "accelerate," although he did, at one point, make a sharp right-hand turn and shortly thereafter made a U-turn. About this time, Serrano was stopped by an officer in a marked police car who had been called in by Detective Garcia to make the stop.

After the driver of the red Pontiac convertible was stopped, the driver being Serrano, the uniformed officer ordered him to step out of his vehicle, which he did. The arresting officer, after "patting" down Serrano, and finding no contraband, ordered him to the marked police vehicle. Simultaneously, Garcia went to the passenger door of the red Pontiac convertible to look for firearms. Putting his hand under the passenger's seat, Garcia found what he thought was a .25 caliber or .380 caliber handgun wrapped in some sort of a plastic wrap. Bringing the object out from under the seat, it proved not to be a firearm, but crack cocaine wrapped in some sort of plastic. Detective Garcia testified that his was a "protective search" of the red Pontiac convertible, because he was concerned, inter alia, that if Serrano declined to converse with him, and they returned him to his vehicle, that he might then "open fire." So much for the "facts" as developed at the evidentiary hearing on Serrano's motion to suppress.

In United States v. Foster, 100 F.3d 846, 849 (10th Cir.1996) we spoke of our scope of review of a district court's order granting a pre-trial motion to suppress as follows:

When reviewing an order granting a motion to suppress, this court accepts the trial court's factual findings unless clearly erroneous, and views the evidence in the light most favorable to the district court's finding. United States v. Little, 18 F.3d 1499, 1503 (10th Cir.1994) (en banc). Moreover, 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. Fernandez, 18 F.3d 874, 876 (10th Cir.1994). Nevertheless, we review de novo the ultimate determination of the reasonableness of a search under the Fourth Amendment. United States v. Callwood, 66 F.3d 1110, 1112 (10th Cir.1995).

As indicated, at the hearing on the motion to suppress there were only two witnesses, Detective Garcia and Serrano, the...