U.S. v. Mendez

• Decision Date: 30 October 2006
• Docket Number: No. 05-10205.,05-10205.
• Citation: 467 F.3d 1162
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lionel MENDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

467 F.3d 1162

UNITED STATES of America, Plaintiff-Appellee, v. Lionel MENDEZ, Defendant-Appellant.

No. 05-10205.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2006.

Filed October 30, 2006.

Jon M. Sands & Michael D. Gordon, Federal Public Defender, Phoenix, AZ, for the defendant-appellant.

Paul K. Charlton, John Joseph Tuchi & Bill C. Solomon, United States Attorney, Phoenix, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; James A. Teilborg, District Judge, Presiding. D.C. No. CR-04-00241-JAT.

Before: REINHARDT, PAEZ, and TALLMAN, Circuit Judges.

REINHARDT, Circuit Judge:

On a December evening in 2003, appellant Lionel Mendez was pulled over by two police officers for failure to display a visible license plate or registration tag. He was asked to exit the vehicle, patted down for weapons and, although there were three small children in the car, told to sit on the curb behind the vehicle while a records check was conducted. In response to questioning about matters unrelated to the purpose of the traffic stop, Mendez ultimately told the officers that there was a gun in the car, at which point they arrested him, searched the car and found the gun. After the district court denied his motion to suppress the evidence, Mendez entered a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The only issue on appeal is whether the district court erred when it denied his motion to suppress. We conclude that it did, vacate Mendez's conviction and remand.

I. FACTUAL AND PROCEDURAL HISTORY¹

At approximately 9:18 p.m. on December 21, 2003, two Phoenix gang enforcement officers pulled over a car driven by Mendez because they mistakenly thought that it did not have a license plate or temporary registration tag.² Both officers testified that the sole purpose of the stop was "no registration." The officers, Detectives Jaensson and Bracke, approached the car and saw that there were three small children inside. Det. Jaensson told Mendez why they had stopped him and asked for "his identification or license." Mendez presented a California identification card. Det. Jaensson then instructed him to get out of the vehicle and interlock his hands behind his head. He proceeded to pat him down for weapons, during which time he noticed a tattoo on his left hand. Mendez complied without incident. The pat-down produced no weapons. Det. Jaensson then instructed Mendez to sit on the curb behind his car. The three small children remained in the vehicle unattended.

Det. Jaensson stayed with Mendez at the curb while Det. Bracke took his identification card to the patrol car to conduct a records check. Det. Jaensson again noticed the tattoo on Mendez's left hand, recognizing it as a gang-affiliated insignia.³ Prompted by the gang tattoo, he questioned Mendez, asking, "Where are you from?" According to Det. Jaensson, Mendez responded that he was "from the Latin Kings," a gang located in Chicago. Det. Jaensson testified that he then continued the questioning, next asking Mendez about his other tattoos. In response to Det. Jaensson's interrogation, Mendez said at some point that he had left the Latin Kings "in good standing," and had moved to Arizona "to get away from all that, to turn his life around."⁴

While a portion, at least, of Det. Jaensson's interrogation of Mendez was taking place, Det. Bracke was at the patrol car conducting a records check, using the car's Mobile Data Terminal ("MDT").⁵ At this time, he noticed in the rear window of Mendez's vehicle a temporary registration plate that had expired eight days earlier on December 13, 2003.

After completing the records check, which revealed that Mendez had a valid driver's license and no outstanding warrants, Det. Bracke returned to the curb with the intention of informing him that the temporary registration plate in his rear window had expired. At that time, he overheard Mendez telling Det. Jaensson, in response to the detective's questioning, that he had come to Arizona "trying to get away from the gang life."⁶ Det. Bracke also overhead him answer that he had spent time in prison in Illinois. Det. Bracke then questioned Mendez as to why he had been imprisoned.⁷ Mendez replied that he had been convicted of a weapons violation. Det. Bracke then asked him if he had any weapons in the car. According to Det. Jaensson and Det. Bracke's testimony, Mendez became agitated, told them that he was a good father and was trying to make a good life for himself in Arizona, and then said that there was a firearm in the driver's door handle. At this point, the officers arrested him. Det. Bracke then searched the vehicle and found a loaded, small caliber, semi-automatic pistol in the driver's side armrest.

Mendez was indicted on charges of violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (felon in possession of a firearm).⁸ He moved to suppress the handgun, arguing that the officers improperly interrogated him about matters unrelated to the traffic stop and failed to diligently investigate the purpose of the stop. The district court denied the motion, finding that the detectives "identified specific, objective factors sufficient to permit them to expand the scope of questioning" and did not unreasonably prolong the stop. Mendez subsequently entered a conditional guilty plea, preserving his right to appeal the court's ruling on the suppression motion. The district court sentenced him to fifty-seven months in prison. He appeals.

II. DISCUSSION

Mendez does not contest the legality of the initial traffic stop. Instead, he argues that the officers' unrelated questioning and extended detention violated his Fourth Amendment rights because (1) the officers did not observe additional particularized, objective factors sufficient to create reasonable suspicion to justify interrogating him about matters beyond the purpose of the stop, and (2) the officers unreasonably prolonged the stop.⁹ The government responds that there were specific, objective factors that justified suspicion of criminal activity and the expansion of the scope of the questioning. It does not argue, however, that the questioning was justified by concerns for officer safety.

A. Propriety of the Investigatory Questioning

The limits of the Fourth Amendment "apply to investigative stops of vehicles such as occurred here." United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). The scope of an investigative detention "must be carefully tailored to its underlying justification." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). During a traffic stop, a police officer may only "ask questions that are reasonably related in scope to the justification for his initiation of contact." United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir. 2001); see also United States v. Chavez-Valenzuela, 268 F.3d 719, 724 (9th Cir. 2001) ("An officer must initially restrict the questions he asks during a stop to those that are reasonably related to the justification for the stop."). An officer may expand the scope of questioning beyond the initial purpose of the stop only if he "articulate[s] suspicious factors that are particularized and objective." Murillo, 255 F.3d at 1174; see also Chavez-Valenzuela, 268 F.3d at 724(stating that an officer may expand scope of questioning "only if he notices particularized, objective factors arousing his suspicion" (emphasis added)); United States v. Perez, 37 F.3d 510, 513 (9th Cir.1994) (same).

As the Eleventh Circuit held in another traffic stop case, United States v. Pruitt, 174 F.3d 1215 (11th Cir.1999), it is not necessary that questions be designed to pursue a specific investigatory objective in order for them to violate the Fourth Amendment. There, the court concluded that "additional `fishing expedition' questions such as `What do you do for a living?' and `How much money did your van cost?' are simply irrelevant, and constitute a violation of Terry." Id. at 1221. We cited Pruitt with approval in Chavez-Valenzuela. See Chavez-Valenzuela, 268 F.3d at 724 n. 4.

In the case before us, the record demonstrates that the officers asked Mendez a number of questions that were unrelated to the purpose of the stop, including questions involving his gang affiliation and the reason for an out-of-state prison sentence a number of years earlier. Det. Jaensson began his questioning by asking Mendez where he was from. Although we doubt that this question was related to the purpose of the stop, we will assume its propriety for purposes of this appeal. Taken literally, the question would probably be permissible, as it would appear to relate to the locality at which the driver's license or the vehicle registration would have been issued. To that extent, it would be related to the traffic stop.¹⁰ We assume the lawfulness of the question although in context it is best understood as an inquiry in colloquial terms about Mendez's gang membership — the information it actually elicited — rather than, as might otherwise be thought, a question about the location of his domicile. Indeed, during the suppression hearing, defense counsel asked Det. Jaensson whether "the questions about where he was from ha[d] anything to do with the traffic stop," to which Det. Jaensson responded, "No."

Subsequently, in response to Det. Jaensson's continuing interrogation, Mendez told the officers that he had been in prison. Det. Bracke then questioned him about the reason for his prior incarceration. When Mendez answered that he had been convicted of a weapons offense, more than eight years earlier, Det. Bracke asked him whether there were any weapons in the car. It is the eliciting of this information that led Det. Bracke to ask that final question that is at the center of this appeal.

The government concedes that, in order to question...