U.S. v. Martinez-Cigarroa, MARTINEZ-CIGARRO

• Decision Date: 24 January 1995
• Docket Number: D,MARTINEZ-CIGARRO,No. 93-2232,93-2232
• Citation: 44 F.3d 908
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguelefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 908

44 F.3d 908

UNITED STATES of America, Plaintiff-Appellee, v. Miguel MARTINEZ-CIGARROA, Defendant-Appellant.

No. 93-2232.

United States Court of Appeals Tenth Circuit.

Jan. 24, 1995.

Submitted on the briefs: ^*

Michael G. Katz, Federal Public Defender, and James P. Moran, Asst. Federal Public Defender, Denver, CO, for defendant-appellant.

John J. Kelly, U.S. Atty., and Kelly H. Burnham, Asst. U.S. Atty., Las Cruces, NM, for plaintiff-appellee.

Before SEYMOUR, Chief Judge, McKAY and BALDOCK, Circuit Judges.

SEYMOUR, Chief Judge.

Appellant Miguel Martinez-Cigarroa was convicted on two counts of transportation of illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B) and aiding and abetting in violation of 18 U.S.C. Sec. 2. Mr. Martinez-Cigarroa filed a pretrial motion to suppress certain evidence. The district court initially granted the motion to suppress, but upon the government's motion for reconsideration the court reversed its initial ruling and held the disputed evidence admissible. Mr. Martinez-Cigarroa appeals from the denial of his motion to suppress. ¹ We affirm.

I.

On November 20, 1992, United States Border Patrol Agent Jose Alvarado was on roving patrol, travelling south on Highway 185 in Dona Ana County, New Mexico, when he observed a white van travelling north. Agent Alvarado testified that as he passed the white van he observed that the driver of the van was gripping the steering wheel tightly and was looking straight ahead. Agent Alvarado observed that the van had tinted rear windows and bore temporary Texas license plates. Based on his experience that smugglers of illegal aliens often use vehicles with temporary license plates, his observations of the driver, and the fact that highway 185 is often used to circumvent a border patrol checkpoint on Interstate 25, Agent Alvarado became suspicious and turned to follow the van. As he did so, Agent Alvarado testified, the van drastically reduced its speed and drifted from left to right. As Agent Alvarado continued to follow the van, he observed a gold Ford Thunderbird stopped by the side of the road. He testified that the occupant of the Thunderbird appeared to show "great interest" in the van and the border patrol car. ² Agent Alvarado stopped the van and discovered several illegal aliens therein. At that point, he radioed to other border patrol agents that he suspected the gold Thunderbird was a scout car for the van, and requested that the vehicle be stopped. Another border patrol officer, Agent Clinton, observed a gold Thunderbird travelling north on Interstate 25 and stopped it in response to Agent Alvarado's request. The driver of the Thunderbird was Mr. Martinez-Cigarroa. Mr. Martinez-Cigarroa was arrested, and inside the car the border patrol agents found a notebook with the names of individuals corresponding to those of the illegal aliens discovered in the white van.

Prior to trial, Mr. Martinez-Cigarroa filed a motion to suppress "any and all evidence which arose from the stop of a 1984 Gold Thunderbird, driven by Miguel Martinez-Cigarroa, at milepost 19, on I-25, North of Radium Springs." Rec., vol. I, doc. 40 at 1. The premise of the motion was a violation of spousal privilege. At the hearing on the motion, however, the district court sua sponte raised the issue of the warrantless stop of the van and the car. The arguments at the hearing focused on this issue. At the conclusion of the hearing, the district court found that the stop of the van was illegal. The court also found that at the time the van was stopped, there was no proper basis for believing that the van and the Thunderbird were in any way connected. In its motion for reconsideration, the government argued that Mr. Martinez-Cigarroa lacked standing to contest the stopping of the van, but that because of the court's decision to raise the issue sua sponte at the hearing on the motion to suppress, the standing issue had not been properly presented. The district court agreed and vacated its earlier grant of Mr. Martinez-Cigarroa's motion to suppress, ordering that arguments on Mr. Martinez-Cigarroa's standing to contest the stopping of the van be heard on April 14, 1993. At that hearing, which was actually held on April 19, the court quickly concluded that Mr. Martinez-Cigarroa lacked standing to contest the stop of the van and denied the motion to suppress. On appeal, Mr. Martinez-Cigarroa does not contest the district court's denial of the motion to suppress with respect to evidence obtained from the stopping of the van. Rather, he contends that the notebook found in the gold Thunderbird, containing the names of the illegal aliens found in the van, should have been suppressed because the agents lacked reasonable suspicion to stop his car.

II.

On appeal from the denial of a motion to suppress, we accept the trial court's findings of fact unless clearly erroneous, and we consider the evidence in the light most favorable to the government. United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990). Questions of law, including the ultimate determination of the reasonableness of a search under the Fourth Amendment, are reviewed de novo. United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989).

It is settled law that border patrol agents on roving patrol "may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles" are involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975). Here, we are concerned with ascertaining whether this test was met with respect to the gold Thunderbird. Accordingly, we must examine the specific articulable facts and the rational inferences to be drawn from them that might justify Agent Alvarado's decision to order the Thunderbird stopped. ³ The government cites three articulable facts justifying the stop. These three facts, as found by the district court, are: 1) the car's occupant showed an interest in the passing van and the border patrol vehicle; 2) Agent Alvarado observed green out-of-state license plates resembling Colorado plates on the Thunderbird; and 3) Agent Alvarado did not recognize the Thunderbird as a local vehicle. ⁴ Agent Alvarado was "entitled to assess the[se] facts in light of his experience," Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. at 2582, and we must assess his decision to have the Thunderbird stopped in light of the "totality of the circumstances." United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1988). In performing this analysis, we must examine the facts individually in their context to determine whether rational inferences can be drawn from them which support the line of suspicion under investigation. See Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. at 2581-82; Terry v. Ohio, 392 U.S. 1, 21-23, 88 S.Ct. 1868, 1880-81, 20 L.Ed.2d 889 (1968). In other words, each fact must either be rationally suspicious in itself, or, despite being innocent on its face, must be rationally suspicious when viewed in context with the other articulable facts.

Here, the first arguably suspicious fact is the interest that the occupant of the Thunderbird allegedly showed in the passing van and border patrol vehicle. This interest is at least equally consistent with the reaction that might be expected from one whose car had broken down and who was hoping for some assistance. Moreover we note Agent Alvarado's testimony that the general public shows at least "some" interest in passing border patrol cars. Taking this fact in the light most favorable to the government, however, we conclude that it provides some slight support for Agent Alvarado's decision to stop the vehicle. However, we cannot conclude that the other two facts, the out-of-state license plates and Agent Alvarado's inability to identify the Thunderbird as a local vehicle, contribute measurably to the analysis. First, they are actually two different formulations of the same fact: a vehicle with out-of-state license plates is by definition not a local vehicle. Second, while out-of-state license plates may be a relevant consideration in some circumstances, see, e.g., United States v. Barbee, 968 F.2d 1026, 1029 (10th Cir.1992), this factor in and of itself is not significantly probative of illegal activity and adds little to the reasonable suspicion equation, see United States v. Monsisvais, 907 F.2d 987, 991 (10th Cir.1990). Therefore, the only arguably significant articulable fact before us upon which the decision to stop the Thunderbird could rationally have been based was the interest shown by its occupant in the passing van and the border patrol vehicle. Even if we add the marginally significant fact that the Thunderbird bore out-of-state license plates, the Brignoni-Ponce test is not met. Consequently, Agent Alvarado lacked reasonable suspicion to order the Thunderbird stopped, and the stop therefore violated the Fourth Amendment. The district court accordingly erred in denying Mr. Martinez-Cigarroa's motion to suppress the evidence found in his car.

III.

Having determined that the district court erred in admitting the notebook containing the names of the illegal aliens, we must now consider whether the error was harmless. In performing this analysis, we ask "not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Sullivan v. Louisiana, --- U.S. ----, ----, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); United States v. March, 999 F.2d 456, 463 (10th Cir.1993). We will reverse unless the state can show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Sullivan, --- U.S. at ----, 113 S.Ct. at 2081 (quoting Chapman v. California, 386 U.S. 18, 24, 87...