U.S. v. Lopez, No. 84-1391

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before BARRETT, DOYLE and McKAY; BARRETT
• Citation: 777 F.2d 543
• Decision Date: 12 November 1985
• Docket Number: No. 84-1391
• Parties: 19 Fed. R. Evid. Serv. 1112 UNITED STATES of America, Plaintiff-Appellee, v. Augustin Alonso LOPEZ, Defendant-Appellant.

Page 543

777 F.2d 543 19 Fed. R. Evid. Serv. 1112 UNITED STATES of America, Plaintiff-Appellee,
v.
Augustin Alonso LOPEZ, Defendant-Appellant. No. 84-1391. United States Court of Appeals,
Tenth Circuit. Nov. 12, 1985.

Page 545

Paul J. Kennedy, Albuquerque, N.M., and Theodore R. Naimy, Jr., Los Angeles, Cal., for defendant-appellant.

David N. Williams, Asst. U.S. Atty., (William L. Lutz, U.S. Atty., and Jennifer A. Salisbury, Asst. U.S. Atty., Albuquerque, N.M., with him on brief), for plaintiff-appellee.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

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BARRETT, Circuit Judge.

Augustin Lopez (Lopez) appeals from a judgment and conviction in the United States District Court for the District of New Mexico for violating 21 U.S.C. Sec. 841(a)(1), possession with intent to distribute cocaine.

On October 17, 1983, at approximately 4:30 p.m., defendant Lopez was driving a 1978 station wagon bearing California license plates westbound on Interstate 40. He was stopped by the New Mexico State Police at a roadblock located near Santa Rosa, New Mexico. The roadblock had been established to conduct routine checks of drivers' licenses and automobile registrations. Officer Martin Pacheco of the New Mexico State Police approached the vehicle. When Lopez rolled down the window of the car, Officer Pacheco noticed a "strong smell of ether, a sweet smell from the vehicle." (R., Vol. VII at 21.) He then asked for Lopez' driver's license and the automobile's registration. Officer Pacheco also obtained the identification of Dagoberto Jaramillo who was accompanying Lopez and was in the back seat of the vehicle. Officer Pacheco's inspection of the documents revealed that the vehicle was registered in the name of Oscar C. Maia. When Officer Pacheco asked Lopez who owned the automobile, Lopez responded: "The vehicle isn't mine, I'm driving it to California for a friend." (R., Vol. VII at 20.)

Suspecting the vehicle might be stolen, Pacheco asked Lopez to remove the automobile out of the lane of traffic and on to the shoulder of the road. This was done so traffic could proceed while a National Crime Information Center (NCIC) check was run on the vehicle. Pacheco motioned to his partner, Officer Ted Tafoya, to assist in conducting the check. Officer Tafoya took the license and the registration to his patrol car and radioed the New Mexico State Police office to conduct the NCIC check.

While awaiting the results of the NCIC check, Officer Tafoya returned to the station wagon. Officer Tafoya told defendant Lopez that he had detected an ether-like odor in the station wagon. He asked Lopez and Jaramillo if he could search the automobile. Both Lopez and Jarmillo agreed to the search. (R., Vol. VII at 43-44.) The officers found nothing illegal on or under the seats or in the glove compartment of the vehicle. Officer Tafoya then asked Lopez if the officers could search the rear of the station wagon. Again Lopez and Jaramillo consented. Upon examining the rear of the station wagon, the officers found that the Phillips screws holding the speakers on the rear panel had been stripped. Recalling that they had seen Allen screwdrivers in the glove compartment, the officers retrieved and used them to remove the speakers. The ether-like odor became stronger when the left speaker was partially removed. Because the officers did not have a flashlight to look into the speaker compartments, they asked Lopez whether he would accompany them to the State Police office in Santa Rosa so a more thorough search could be conducted. Lopez agreed. (R., Vol. VII at 46-47.)

The officers escorted Lopez and Jaramillo to Santa Rosa, which was approximately one mile from the roadblock. There the officers obtained Lopez' signature on a consent to search form. The officers then removed the left speaker, pointed a flashlight at the space left by the speaker and saw some blue boxes. The officers subsequently placed Lopez and Jaramillo under arrest and read them Miranda warnings. Test samples from the contents of each of the eleven boxes seized from the station wagon revealed the presence of cocaine with an average purity of 87.8%.

A federal grand jury indicted both Lopez and Jaramillo. Prior to trial, the defendants moved to suppress all physical evidence taken from the vehicle at the time of their arrest. After an extensive pre-trial hearing, the district court denied the motion to suppress. On February 4, 1984, the jury found Lopez guilty of unlawfully possessing cocaine with the intent to distribute. Co-defendant Jaramillo failed to appear

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for trial and is not a party to this appeal.

Lopez raises two issues on appeal. First, Lopez questions the validity of the search and seizure conducted by the New Mexico State Police and the admissibility of any evidence obtained thereby. Second, Lopez asks us to consider whether the trial court erred in refusing to permit co-defendant Jaramillo's attorney from testifying regarding exculpatory statements made to him by Jaramillo in Lopez' presence.

I.

Lopez contends that his detention and the detention of his vehicle at the roadblock was an unreasonable seizure. First, Lopez contests the validity of the roadblock established by the New Mexico State Police. He maintains that the roadblock was established for purposes other than merely checking vehicle registrations and drivers' licenses. Lopez predicates this argument on statements by Officer Pacheco that the officers were also looking for evidence of illegal activity after the cars were stopped. Lopez maintains that based on Officer Pacheco's statements, the State Police were conducting a multi-purpose roadblock. He argues the effect of a multi-purpose roadblock is to grant impermissible discretion to the police in stopping vehicles along Interstate 40.

We addressed this very argument in United States v. Prichard, 645 F.2d 854 (10th Cir.1981), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981), reh'g denied, 454 U.S. 1069, 102 S.Ct. 620, 70 L.Ed.2d 605 (1981). There we said, "The purpose of the roadblock, i.e., to check drivers' licenses and car registrations, was a legitimate one. If, in the process of so doing, the officers saw evidence of other crimes, they had the right to take reasonable investigative steps and were not required to close their eyes." Id. at 857. Consistent with our reasoning in Prichard, we hold that the roadblock maintained by Officers Pacheco and Tafoya was not a multi-purpose roadblock and was lawful. The law does not require the police to ignore evidence of other crimes in conducting legitimate roadblocks, and they may look for evidence which is in plain view.

Lopez also argues that the roadblock must be valid under New Mexico law as well as under federal standards. In United States v. Lepinski, 460 F.2d 234 (10th Cir.1972), we found a similar roadblock valid under New Mexico law. Id. at 237. Our review of New Mexico law cited by Lopez leads us to conclude that the district court was not clearly erroneous in finding the roadblock valid under both federal and New Mexico law.

Second, Lopez contends that his detention and the detention of his vehicle on the shoulder of the highway after the roadblock stop was an unreasonable seizure. We addressed this issue in United States v. Obregon, 748 F.2d 1371 (10th Cir.1984).

In Obregon, the New Mexico State Police had established a roadblock to conduct routine driver's license and car registration checks. After the initial roadblock stop, the police requested Obregon to park his car on the shoulder of the road. The police took this action after they determined Obregon was driving a rented car with expired license plates and his name did not appear on the rental contract. Id. at 1373. We held that Obregon's detention after the initial roadblock stop was a proper Terry investigatory stop because Obregon was detained only when the police became reasonably suspicious that the car might be stolen. Id. at 1376.

In the case at bar, Officers Pacheco and Tafoya had reasonable and articulable suspicion that the car might be stolen, justifying Lopez' brief investigatory detention. Lopez argues, however, that because the automobile registration certificate was technically proper, the officers had no basis upon which to detain him. We do not agree. The station wagon operated by defendant in New Mexico bore California license plates. It was not registered to either passenger. The mere presence of the technically proper registration in the glove compartment of the vehicle did not necessarily

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remove the officers' concern that the vehicle might be stolen. Under these circumstances, the NCIC check was justified. Consequently, in order to run an NCIC check while minimizing the danger to the defendants and to travelers approaching the roadblock, the officers acted reasonably in requesting Lopez to park on the shoulder of the road.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court adopted a dual inquiry for evaluating the reasonableness of an investigative stop. Under the Terry approach, a court must examine "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified interference in the first place." Id. at 20, 88 S.Ct. at 1879. We find the detention of Lopez on the shoulder of the highway meets the Terry test of reasonableness; detaining the defendant while the officers ran an NCIC check was justified under the circumstances. Moreover, detaining the defendant and his vehicle on the shoulder of the road was reasonably related to conducting the permissible NCIC check. Therefore, we find both the initial roadblock stop and the subsequent detention of Lopez to be valid seizures.

II.

Lopez next contends that the initial search of the vehicle on the shoulder of Interstate 40 was unlawful. The basis of Lopez' argument is that his consent to the...