U.S. v. Melendez-Garcia, MELENDEZ-GARCI

• Decision Date: 30 June 1994
• Docket Number: D,No. 93-2104,MELENDEZ-GARCI,93-2104
• Citation: 28 F.3d 1046
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuelefendant-Appellant.

Page 1046

28 F.3d 1046

UNITED STATES of America, Plaintiff-Appellee, v. Manuel MELENDEZ-GARCIA, Defendant-Appellant.

No. 93-2104.

United States Court of Appeals, Tenth Circuit.

June 30, 1994.

Kurt J. Mayer, Asst. Federal Public Defender, Las Cruces, NM, for defendant/appellant.

David N. Williams, Asst. U.S. Atty. (Larry Gomez, U.S. Atty. and Kelly H. Burnham, Asst. U.S. Atty., with him on the brief), Las Cruces, NM, for plaintiff/appellee.

Before EBEL and McKAY, Circuit Judges, and SAFFELS, Senior District Judge. ^*

EBEL, Circuit Judge.

Defendant/Appellant Manuel Melendez-Garcia, appeals from a conditional guilty plea to charges of conspiracy, in violation of 21 U.S.C. Sec. 846, aiding and abetting, in violation of 18 U.S.C. Sec. 2, and possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(D), alleging that the government seized evidence in violation of his Fourth Amendment rights. In addition, he claims that the district court erred in enhancing his sentence for being an "organizer" under Sec. 3B1.1 of the United States Sentencing Guidelines ("U.S.S.G.").

The evidence at issue is approximately 21 pounds of marijuana found in a car owned by Melendez and driven by another individual, Scott Perez. Melendez argues that he and Perez were illegally arrested without probable cause and that Perez' consent to the search that produced the marijuana was tainted by the illegal arrest.

At the suppression hearing, the district court learned the following facts about the seizure of the marijuana and the events leading to the seizure. The court heard evidence only from two government witnesses: Phillip George, a Las Cruces, New Mexico police officer assigned to the Drug Enforcement Agency ("DEA") Task Force in Las Cruces, and Brad Cox, a DEA agent. Both Melendez and Perez challenged the evidence; however, neither presented any evidence of their own.

The evidence showed that on August 24, 1992, the DEA obtained information from a confidential informant that Perez and Oscar Angel would transport a load of marijuana from the Las Cruces area to California "in the next few days." The informant told the officers that the marijuana would be transported in a "white T-bird-type vehicle," and told the officers where Perez and Angel lived. The officers learned that the marijuana would be hauled to Deming, New Mexico through a checkpoint on Interstate 10.

The officers set up a surveillance of the address given by the informant. At the address, they found a white Mercury Cougar that Officer George testified is "very similar" to a Thunderbird and also made by the Ford Motor Company. Two other vehicles at the address were found to be registered to Perez and Angel, respectively. Perez claimed the address as his residence.

On the 26th of August, the informant told the police that someone whom informant did not know had already taken the marijuana from Las Cruces to Deming. Nonetheless, the informant told the police that Angel and Perez would still take the drugs to California and would travel to Deming in the white Cougar to get the drugs.

The Border Patrol checkpoint on Interstate 10 informed the officers that the white Cougar had passed through the checkpoint on the way to Deming. The officers then located the car at a motel in Deming and set up surveillance. Officer George testified that Perez or Angel would repeatedly look out the window of their motel room as if looking for something. Late that evening, the officers observed that Perez and Angel left their motel and drove back to Las Cruces. The officers did not stop the car because they assumed that the drugs were still in Deming.

Perez and Angel returned to the Deming motel and later left the motel with two other individuals, Melendez and Ponce-Aguilar. Melendez, Ponce, and Angel rode in the white Cougar, while Perez drove a brown Dodge owned by Melendez. Both cars drove to the Deming bus station, where Ponce was dropped off.

The cars then proceeded northeast out of Deming towards Hatch, New Mexico on Highway 26. The cars were travelling in tandem. Officer George testified that smugglers often travel in tandem so that the lead vehicle can investigate checkpoints. The officers decided that the cars were probably heading to Hatch, where they would catch Interstate 25 to Interstate 40 to California. The cars were heading away from the most direct route to California from Deming on Interstate 10. Based on their belief that the cars were going to California, the officers summoned a marked State Police car to stop the two cars. At this time at least three or four police vehicles were present--the state police car, two DEA cars, and a U.S. Customs car--as were at least six officers.

By this time, the Cougar had gotten some distance ahead of the Dodge, so that when the officers sought simultaneously to stop the cars, they were separated. The record contains no indication of how far the vehicles were apart. However, the brown Dodge, driven by Perez, continued to drive after the police turned on their lights, until it stopped behind the white Cougar. Once the cars were stopped, the officers conducted what they referred to as a "felony stop." The officers pulled out their weapons and trained them on the vehicles. The occupants were told to throw their keys out the window and put their hands out. They were then told to exit the vehicles one at a time and walk backwards towards the officers. The officers then handcuffed and frisked them. The three were placed in separate vehicles and strapped in with seatbelts. There is a conflict in the record regarding whether the handcuffs were removed when Perez, Melendez, and Angel were secure in the police cars.

Agent Cox holstered his gun and then asked Perez for permission to search the brown Dodge. At some point he also asked for permission to use a canine to search the car. Perez responded that the officers could search the car, but that they would not find anything inside. The record indicates that the officers may not have known that Melendez, who was a passenger in the Cougar and placed in a different police car from Perez, was the owner of the Dodge.

The officers visually searched the Dodge and found no drugs. However, a drug-sniffing canine that arrived on the scene five to fifteen minutes after the request to search, depending on Officer George's or Agent Cox's recollection, alerted to the presence of contraband towards the rear of the car. ¹ After the dog alerted to the presence of drugs, the officers read Melendez, Perez, and Angel their Miranda rights. The officers subsequently found about 21 pounds of marijuana in the gas tank of the Dodge. Nothing was found in the Cougar. Subsequent to the police discovery of the marijuana, Perez gave a confession.

After he was indicted, Melendez sought to suppress the marijuana, the key evidence in the case against him, by arguing that Perez had been illegally arrested without probable cause and that the consent to search the Dodge was tainted by this illegal arrest. ² At the suppression hearing, the district court ruled that the stop was permissible as an investigatory detention justified by reasonable suspicion. However, the court was concerned about the voluntariness of Perez' consent. After additional briefing, the court determined that Perez' consent was voluntary under the totality of the circumstances, despite the potentially coercive nature of the stop.

After losing on the suppression motion, Melendez conditionally pled guilty, subject to his right to appeal on the suppression issue. The district court subsequently sentenced him to a term of 21 months imprisonment and three years of supervised release. The sentence included an enhancement for Melendez' alleged role as an "organizer" of the criminal activity under U.S.S.G. Sec. 3B1.1.

I. INITIAL STOP

The government argues, and the district court concluded, that the officers had reasonable suspicion to stop the Cougar and the Dodge based on information supplied by a confidential informant and their own observations. Melendez does not argue this point on appeal, but insists that the encounter was an arrest conducted without probable cause from the outset.

In this case, although the confidential informant updated or changed parts of the story, such as the location of the marijuana, the informant correctly predicted some future behavior, such as the trip by Angel and Perez from Las Cruces to Deming in the white Cougar. Further, the officers' observations of the suspects yielded some suspicious behavior, such as the repeated glances from the motel window at night and the fact that the Cougar and the Dodge travelled in tandem. ³

We acknowledge that some parts of the informant's story were not corroborated by the police. Further, the police believed that there may have been an error in the amount the informant believed would be paid because he related that Angel and Perez would be paid $11,000 for transporting the marijuana to California. The officers thought that fee was too high for transporting marijuana and suspected that the drug may have been cocaine or heroin. Additionally, at the time of the stop, Melendez, Perez, and Angel were travelling northeast from Deming--away from California. Nonetheless, the officers testified that they could have been headed for Interstate 25 and then 40 to California.

These facts are clearly sufficient to establish reasonable suspicion for a Terry stop. The Fourth Amendment requires only a "minimal level of objective justification" for making a Terry stop. INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). It requires "considerably less than proof of wrongdoing by a preponderance of the evidence," but "something more than an 'inchoate and unparticularized suspicion or "hunch." ' " Alabama v. White, 496 U.S. 325, 329-330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990) (quoting United States v....