U.S. v. Ortiz-Monroy

• Decision Date: 11 June 2003
• Docket Number: No. 02-3944.,02-3944.
• Citation: 332 F.3d 525
• Parties: UNITED STATES, Appellee, v. Guadalupe ORTIZ-MONROY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

332 F.3d 525

UNITED STATES, Appellee, v. Guadalupe ORTIZ-MONROY, Appellant.

No. 02-3944.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2003.

Filed: June 11, 2003.

James B. Pierce, argued, Fort Smith AR, for appellant.

Kenneth P. Elser, argued, Asst. U.S. Atty., Fort Smith, AR, for appellee.

Before WOLLMAN and BEAM, Circuit Judges, and NANGLE,¹ Senior District Judge.

NANGLE, Senior District Judge.

Defendant Guadalupe Ortiz-Monroy ("Monroy") appeals the district court's denial of his suppression motion and of a sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We affirm.

At 10:41 p.m. on the evening of February 26, 2002, Deputy Jeff Smith of the Crawford County Arkansas Sheriff's Department ("Deputy Smith") observed a Ford Expedition traveling eastbound on I-40 within a car length of a passenger car. Through experience and training, Deputy Smith was aware that drug traffickers often use two vehicles traveling in close proximity to transfer drugs, a "load" vehicle followed by a "decoy" vehicle. Deputy Smith followed the two vehicles for a few miles and observed that the second vehicle, the Expedition, had an expired California license tag. When the passenger car swerved across the center line, Smith stopped the Expedition. The passenger car continued traveling East.

In the Expedition were two men who were shaking and appeared nervous. They denied that they had been following anyone. Based on a criminal history check showing that the driver had a prior drug trafficking conviction and on suspicions raised by the driver's statements about the trip, Deputy Smith asked for and obtained consent to search the Expedition. Deputy Smith's drug dog "alerted" to all four tires. Deputy Smith also noted that the spare tire was missing from under the vehicle, and found a small spare tire inside the Expedition.

The Expedition and its tires were searched for drugs but none were found. Believing the Expedition to be a decoy vehicle and the passenger car to be the load vehicle carrying drugs, Deputy Smith radioed for other officers to locate the load vehicle. Deputy Smith described the load vehicle as a little green car or little green Ford.

At approximately 11:40 p.m., Officer Justin Phillips ("Officer Phillips") checked the rest area on the eastbound side of I-40 and saw a dark blue Chevrolet Beretta with California tags which was parked illegally. Officer Phillips saw a man, later identified as Monroy, standing by the rear of the Beretta. As Officer Phillips approached the car, Monroy got into the driver's seat. When Officer Phillips shined his spotlight on the car, Monroy peered at him through the back windshield, then disappeared from sight.

When Officer Phillips reached the driver's side of the car, he observed Monroy lying reclined in the driver's seat with his eyes closed, pretending to be asleep. Officer Phillips knocked on the car window a few times, and then Monroy opened the window. Officer Phillips asked Monroy-who was shaking and sweating-if he was okay, and Monroy said yes. Officer Phillips asked Monroy if he spoke English and Monroy said, "a little."

When Officer Phillips asked to see Monroy's driver's license, Monroy said that he did not have one and handed Officer Phillips a California identification card. When Monroy told Officer Phillips that he was going to California, Officer Phillips responded that Monroy had been headed in the opposite direction and asked if he was lost. Monroy did not respond. Officer Phillips asked Monroy how long he had been in the rest area, and Monroy claimed to have been there for two to three hours. Officer Phillips noticed that the hood and driver's side tire were both warm, and that Monroy had a cell phone in the vehicle but no luggage. At this point, Officer Phillips determined that Monroy's vehicle was the load vehicle sought by Deputy Smith.

Officer Phillips returned to his patrol car and proceeded to run a check on Monroy's identification card. Officer Phillips saw Monroy "bobbing up and down" in the car and called for backup. Officer Phillips then approached the car again and asked why Monroy was so nervous. Officer Phillips asked whether there was anything illegal in the car, and Monroy produced a kitchen knife from under the driver's seat.

Officer Phillips asked Monroy for consent to search the car for illegal substances or other contraband and explained to Monroy why he was requesting permission to search, noting Monroy's lack of luggage and travel in the wrong direction to California. Monroy got out of the car and consented to a search. Officer Phillips found a very heavy tire inside the trunk, which did not match the tires on the car. Monroy said, "that's not my tire." Officers Philips and Harris found cocaine inside the tire. The officers arrested Monroy and read him his Miranda rights. Monroy repeated that the tire did not belong to him, and then stopped talking.

Monroy was indicted for possession with intent to distribute 500+ grams of a mixture containing cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii). Monroy entered a plea of not guilty and filed a motion to suppress evidence of the cocaine seized from his car. After holding a suppression hearing, the magistrate judge recommended that the suppression motion be denied. The district court accepted the magistrate's recommendation and denied Monroy's suppression motion. Monroy appeals that denial.

With respect to a suppression motion, we review the district court's conclusions of law de novo and its factual findings for clear error. United States v. Booker, 269 F.3d 930, 931 (8th Cir.2001). First, we find that Officer Phillips's encounter with Monroy did not implicate the Fourth Amendment because it was consensual. See United States v. Perez-Sosa, 164 F.3d 1082, 1084 (8th Cir.1998) (no seizure of individual when officer approaches and "requests identification, as long as the officer does not convey that compliance is required."); United States v. Jones, 990 F.2d 405, 408 (8th Cir.1993) (Fourth Amendment is not implicated when "officers merely approach and question a person, as long as the account is consensual in nature and does not involve coercion or restraint of liberty."). We find no error in the court's finding that Monroy willingly engaged in conversation with Officer Phillips and consented to the search of his car. Because Monroy's entire encounter with Officer Phillips was consensual, it was outside the ambit of the Fourth Amendment and did not constitute an unlawful seizure.

Alternatively, we find that Officer Phillips's encounter with Monroy was an investigatory stop and thus excepted from the Fourth Amendment's requirement that seizure be made pursuant to a warrant or predicated on probable cause. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968). A Terry investigatory stop allows an officer briefly to detain a citizen if the officer has a reasonable suspicion that "criminal activity may be afoot." Id., 392 U.S. at 30, 88 S.Ct. at 1884. As a reviewing court, we must look at the totality of the circumstances to determine whether Officer Phillips had a ...