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

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before TACHA and EBEL, Circuit Judges, and DUMBAULD; TACHA
• Citation: 914 F.2d 200
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Adelaefendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Javierose Manuel Morales-Diaz, Defendants-Appellees.
• Docket Number: OZUNA-FUENTES and J,D,MORALES-ZAMOR,89-2244,Nos. 89-2172
• Decision Date: 06 September 1990

Page 200

914 F.2d 200 59 USLW 2199 UNITED STATES of America, Plaintiff-Appellant,
v.
Adela MORALES-ZAMORA, Defendant-Appellee.
UNITED STATES of America, Plaintiff-Appellant,
v.
Javier OZUNA-FUENTES and Jose Manuel Morales-Diaz,
Defendants-Appellees. Nos. 89-2172, 89-2244. United States Court of Appeals,
Tenth Circuit. Sept. 6, 1990.

Page 201

David N. Williams (William L. Lutz, U.S. Atty., and Robert J. Gorence, Asst. U.S. Atty., with him on the brief), Asst. U.S. Atty., for plaintiff-appellant, U.S.

Nancy Hollander of Freedman, Boyd & Daniels, P.A., Albuquerque, N.M., for defendant-appellee Adela Morales-Zamora.

William E. Parnall, Albuquerque, N.M., for defendants-appellees Javier Ozuna-Fuentes and Jose Manuel Morales-Diaz.

Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellee Javier Ozuna-Fuentes.

Before TACHA and EBEL, Circuit Judges, and DUMBAULD, District Judge. ^*

TACHA, Circuit Judge.

Defendants Adela Morales-Zamora, Javier Ozuna-Fuentes, and Jose Manuel Morales-Diaz were indicted on drug charges after a trained narcotics detection dog alerted to their vehicles while they were detained at a roadblock operated by Socorro, New Mexico police authorities. The district court in both cases granted the defendants' motions to suppress on the ground that the dog sniff was a "search" under the fourth amendment, U.S. Const. amend. IV, requiring a reasonable and articulable suspicion of drug-related criminal activity. We reverse.

I.

The factual circumstances of the two searches at issue are similar. 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 operated by the Socorro, New Mexico police department. The stated purpose of the roadblock was to check drivers' licenses, vehicle registrations, and proofs of insurance. Zamora produced her driver's license, registration, and proof of insurance as requested. While one officer was checking her documents, another officer walked a trained narcotics-detection dog around the exterior of Zamora's car. The dog did not touch the car. Before the document check was finished, the dog alerted to the car. A subsequent search of the car revealed 126 pounds of marijuana hidden in luggage in the car's trunk.

On March 16, 1989, Javier Ozuna-Fuentes (Fuentes) was driving a van north on Interstate 25. His sole passenger was Jose Manuel Morales-Diaz (Diaz). Fuentes and Diaz encountered the same kind of Socorro police department roadblock as did Zamora. While they were waiting in line at the roadblock and before a check of their documents had been made, a narcotics-detection dog alerted to the van. The dog did not touch the van. After Fuentes stepped out of the van, an officer frisked him and found a .25 caliber handgun in the front right pocket of his pants. A subsequent search of the van revealed 30 pounds of

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marijuana concealed in a false compartment under the van's chassis.

Zamora later moved to suppress the evidence of contraband seized at the roadblock. After a hearing on March 31, 1989, the district court granted Zamora's 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 examined violates the fourth amendment. See United States v. Morales, 714 F.Supp. 1146, 1154 (D.N.M.1989).

Fuentes and Diaz also filed a motion to suppress. In a ruling from the bench, the district court in the Fuentes/Diaz case granted the defendants' motion to suppress for substantially the reasons expressed in the published opinion in the Zamora case. The government took an interlocutory appeal of the two district court rulings pursuant to 18 U.S.C. section 3731, which we consolidated on appeal.

II.

Our standard of review is well-established. When reviewing a grant of a motion to suppress, we accept the trial court's findings of fact unless clearly erroneous. See United States v. Butler, 904 F.2d 1482, 1484 (10th Cir.1990). The ultimate determination of reasonableness under the fourth amendment is, however, a conclusion of law that we review de novo. Id.

A.

As a preliminary matter, we turn to the defendants' argument that their detention by the Socorro police at the roadblock was an unlawful seizure because the roadblock's stated purpose was a pretext for searching the stopped vehicles for drugs. Both district courts below did not address the defendants' arguments that the alleged purpose of the roadblocks was pretextual, ruling instead that even if the reason for the roadblock was not pretextual, the dog sniffs constituted illegal searches under the fourth amendment. ¹ Because the district courts below assumed that the alleged purpose of the roadblock--to check for valid drivers' licenses, vehicle registrations, and proofs of insurance--was valid, we do also. Our holding today does not preclude the defendants from renewing their arguments concerning pretext to the district courts.

B.

The Supreme Court has upheld the constitutionality of brief roadblock detentions not based on an individualized reasonable suspicion of criminal activity in the context of a twenty-five second average detention at a sobriety checkpoint, see Michigan Dep't of State Police v. Sitz, --- U.S. ----, 110 S.Ct. 2481, 2483-88, 110 L.Ed.2d 412 (U.S.1990), and a 3-5 minute average detention at an immigration checkpoint, see United States v. Martinez-Fuerte, 428 U.S. 543, 546-47, 562, 96 S.Ct. 3074, 3077-78, 3085, 49 L.Ed.2d 1116 (1976). This circuit previously has dismissed fourth amendment challenges against brief roadblock detentions not based on individualized reasonable suspicion of criminal activity where the purpose of the roadblock is to check for valid drivers' licenses, vehicle registrations, and proofs of insurance. See United States v. Corral, 823 F.2d 1389, 1392 (10th Cir.1987) (driver's license, car registration, and proof of insurance check), cert. denied, 486 U.S. 1054, 108 S.Ct. 2820, 100 L.Ed.2d 921 (1988); United States v. Lopez, 777 F.2d 543, 547 (10th Cir.1985) (driver's license and car registration check); United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984) (driver's license and car registration check); United States v. Prichard, 645 F.2d 854, 856-57 (10th Cir.) (driver's license and car registration check), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110

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(1981). Assuming that the initial stop of the defendants was for the valid purpose of checking drivers' licenses, vehicle registrations, and proofs of insurance, we hold that the defendants' initial detention at the roadblock was not an unreasonable seizure under the fourth amendment.

To determine whether the defendants' vehicles were unlawfully detained after a lawful initial stop for the purpose of facilitating the canine sniff, we look to the timing of the events at the roadblock. ² In both cases the narcotics-detention dog alerted to the defendants' vehicles before the Socorro police officer had completed his inspection of the defendants' documents. Because the defendants' vehicles were not...