U.S. v. Morales-Zamora, MORALES-ZAMOR

Citation974 F.2d 149
Decision Date03 September 1992
Docket NumberNo. 91-2244,MORALES-ZAMOR,D,91-2244
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Adelaefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Nancy Hollander, Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, P.A., Albuquerque, N.M., for defendant-appellant.

Robert J. Gorence, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before McKAY, Chief Judge, McWILLIAMS, Senior Circuit Judge, and EISELE, Senior District Judge. *

McWILLIAMS, Senior Circuit Judge.

On February 10, 1989, Adela Morales-Zamora (Zamora) and her seven-year old son were traveling north on Interstate 25 when she was stopped at a roadblock in Socorro, New Mexico, by officers of the Socorro Police Department. She was told that the purpose of the roadblock was to check her driver's license, vehicle registration, and proof of insurance. As one officer checked these documents, another officer walked a trained narcotics-detection dog around the exterior of Zamora's vehicle.

Before the document check was completed, the dog "alerted" to the car. Zamora was advised that the dog had alerted to her car and the officer asked Zamora if she would consent to a search of her vehicle. Zamora then asked what would happen if she refused to sign the consent to search form which had been given her. The officer advised Zamora that their policy was to detain the vehicle and obtain a search warrant. Zamora then signed the consent to search form. The ensuing search disclosed 126 pounds of marijuana in the trunk of her car.

Thereafter, Zamora was charged in a one-count indictment with the unlawful possession of more than 50 kilograms of marijuana, a Schedule I Controlled Substance, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). Zamora filed a motion to suppress the use at trial of the marijuana taken from the trunk of her car. After hearing, the district court granted the motion to suppress, holding that when an officer has no reasonable and articulable suspicion of drug-related criminal activity, a canine sniff that occurs while the driver's documents are being checked, violates the Fourth Amendment. United States v. Morales, 714 F.Supp. 1146 (D.N.M.1989), rev'd, 914 F.2d 200 (10th Cir.1990).

From the order granting Zamora's motion to suppress, the government took an interlocutory appeal pursuant to 18 U.S.C. § 3731. On appeal, we reversed, holding that the police did not need individualized reasonable suspicion of drug-related activity before subjecting a lawfully detained vehicle to a canine sniff, since, in such circumstance, the sniff was not a search under the Fourth Amendment. In thus holding, we assumed, as did the district court, that the reason for the roadblock was not pretextual, and in connection therewith we expressly stated that our holding did not preclude Zamora from renewing on remand her argument of pretext. United States v. Morales-Zamora, 914 F.2d 200 (10th Cir.1990).

On remand, the district court held a hearing on Zamora's motion to suppress based on pretext. The chief of police for Socorro, John Trujillo, testified about their use of roadblocks in general, as well as the particular roadblock in effect on February 10, 1989, the date Zamora was arrested. At the conclusion of this hearing, the district court denied the motion to suppress, indicating, however, that it was a close call. Zamora thereafter pleaded guilty to the charge, reserving her right to obtain appellate review of the district court's order denying her motion to suppress. She was then sentenced to 27 months imprisonment and this appeal follows.

At the hearing on Zamora's motion to suppress, Chief Trujillo testified that the police first set up a roadblock in Socorro in June, 1987, and that the operation was funded by the city itself. He stated that in about October, 1988, the city received a federal narcotics grant which funded 75% of the expense attendant to the roadblocks, including such items as overtime pay, canine expense, and capital outlay and equipment. Chief Trujillo said this federal funding continued until about July, 1990. When the federal funding was discontinued, the roadblocks were again funded by the city. There was some testimony that Chief Trujillo had made application for a grant from the state, although it is unclear whether the application was granted, or denied.

On cross-examination Chief Trujillo stated that he knew the city could not lawfully establish a roadblock which was only "looking for drugs," but believed that they could lawfully establish a roadblock for the purpose of checking drivers' licenses, vehicle registrations, and proofs of insurance. He admitted that in certain applications for grants he had stated that the "primary goal," or the "underlying purpose," of the roadblocks was to "look for drugs." At another point in his testimony, Chief Trujillo said he had dual reasons for the roadblocks: (1) to check drivers' licenses, vehicle registrations, and proofs of insurance; and (2) to check for the presence of contraband in vehicles through the use of sniffing canines.

Chief Trujillo also testified that initially a sniffing canine was present at every roadblock. He went on to testify that when the United States District Court granted Zamora's original motion to suppress, the city changed its roadblock procedure by continuing to stop vehicles to check for drivers' license violations, and the like, but that they would not have any canine at the scene unless and until the officer had some cause to believe that the vehicle contained drugs. He added that after this court reversed the district court in United States v. Morales-Zamora, 914 F.2d 200 (10th Cir.1990), the city reverted to its old practice of stopping all vehicles and having a canine sniff the area around the car as another officer was checking the driver's license. 1

In denying Zamora's motion to suppress based on a pretextual roadblock stop, the district court commented as follows:

The chief has testified that one of the reasons the roadblock was set up where it was was for people coming, say, back from the Owl Cafe or White Sands that live in Socorro. 2

This is about as close a question as you can get. I would say it's 51/49. But I cannot objectively say that the Socorro police did not have the right to set up the roadblock, that it was pretextual to the standpoint that Judge Burciaga did. They have a perfectly legitimate purpose in checking driver's license, insurance, et cetera, either primary or secondarily. They've acknowledged the drugs come into play. But I can't say that it's a pretext as did Chief Judge Burciaga.

This is a question that can be certified to the Tenth Circuit. I'll certify it and put the trial off until after that certification comes back. If not, the case will be going to trial on my docket for May the 3rd. So the Motion to Suppress will be denied. 3

When we review the denial of a motion to suppress, we accept the district court's findings of fact unless clearly erroneous. However, the ultimate determination of reasonableness under the Fourth Amendment is a conclusion of law, which we review de novo. United States v. Butler, 904 F.2d 1482 (10th Cir.1990). The critical facts in the instant case are not in dispute, and we do not regard the district court as having made any findings of fact based on disputed evidence. Hence, our review of the district court's conclusions of law is de novo.

As we understand it, appellant agrees that roadblock stops for the purpose of checking a driver's license, and for checking the driver's sobriety, have been upheld against a challenge based on the Fourth Amendment. See United States v. Lopez, 777 F.2d 543, 547 (10th Cir.1985); United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984); and 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, reh'g denied, 454 U.S. 1069, 102 S.Ct. 620, 70 L.Ed.2d 605 (1981). In Prichard we said that if in the process of stopping a car at a roadblock to check a driver's license the officers saw evidence of other crimes, they had the right to take reasonable investigative steps and were not required to close their eyes to what they had seen. See id. at 857. At the same time, the government agrees that under the Fourth Amendment it could not set up a roadblock for the sole purpose of subjecting all the stopped vehicles to a canine sniff of the exterior of the car. All of which narrows our problem.

In our view, the roadblock stop of Zamora's vehicle was a pretextual stop made for the purpose of detaining Zamora for a few minutes while a canine sniffed the vehicle for drugs. Zamora incidentally produced a valid driver's license, vehicle registration, and proof of insurance. Chief Trujillo testified, in effect, that the real reason for the roadblock was to interdict drug traffic, and...

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    ...have been asked to decide the issue. Compare United States v. Huguenin, 154 F.3d 547, 554-55 (6th Cir. 1998); United States v. Morales-Zamora, 974 F.2d 149 (10th Cir. 1992); Galberth v. United States, 590 A.2d 990 (D.C. 1991), and Wilson v. Commonwealth, 509 S.E.2d 540 (Va. App. 1999), whic......
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