U.S. v. Perez

• Decision Date: 04 October 1994
• Docket Number: No. 93-10709,93-10709
• Citation: 37 F.3d 510
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eduardo Javier PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 510

37 F.3d 510

UNITED STATES of America, Plaintiff-Appellee, v. Eduardo Javier PEREZ, Defendant-Appellant.

No. 93-10709.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 8, 1994.

Decided Oct. 4, 1994.

John Lambrose, Asst. Federal Public Defender, Las Vegas, NV, for defendant-appellant.

Daniel R. Schiess, Asst. U.S. Atty., Las Vegas, NV, argued (Thomas M. Gannon, on the brief), for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: FLETCHER, HALL and WIGGINS, Circuit Judges.

Opinion by Judge FLETCHER; Concurrence by Judge HALL.

FLETCHER, Circuit Judge:

Eduardo Perez appeals his conviction after a jury trial for possession of four kilograms of cocaine with intent to distribute, a violation of 21 U.S.C. Sec. 841(a)(1). He argues that all evidence seized pursuant to a traffic stop should be suppressed, for a number of independent reasons. He claims that the stop was pretextual because the officers would not have stopped him absent a desire to search for evidence of more serious crime. He also contends that the officers lacked the requisite reasonable suspicion to question him about criminal matters not related to the purpose of the stop. He contends that he did not consent to the search of his car, and that the scope of the officers' search exceeded that of any consent he did give. He also argues that the district court erred in refusing his proffer of evidence concerning the racial characteristics of thirty-two other individuals stopped by the officers in question. We affirm.

I

" 'A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop.' " United States v. Cannon, 29 F.3d 472, 477 (9th Cir.1994) (quoting United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988)). ¹ Our circuit's caselaw has not been entirely consistent in the test it has applied to determine pretext. Cannon, 29 F.3d at 475. Some cases employ a "subjective" test: a stop is pretextual if "the motivation or primary purpose of the arresting officers" is to use the stop in order to search for evidence of an unrelated crime. United States v. Mota, 982 F.2d 1384, 1386 (9th Cir.1993) (quoting United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986)). Recent cases have employed an "objective" test: a stop is pretextual unless a "reasonable officer," given the same circumstances, " 'would have' made the stop anyway, apart from [his or her] suspicions about other more serious criminal activity." Cannon, 29 F.3d at 476; United States v. Bowhay, 992 F.2d 229, 231 (9th Cir.1993). The stop here was not pretextual under either inquiry.

Troopers Owens and Roll observed Perez's van pass them and weave back and forth across the fog line. The officers testified that they thought the van's driver was possibly either intoxicated or falling asleep at the wheel. As it turned out, the van's steering was malfunctioning. Whatever the cause, the officers' decision to stop the van was one any reasonable highway patrol officer would make. We agree with the magistrate judge:

in order to find the stop pretextual, this Court would have to find that but for their interdiction duties Troopers Owens and Roll would have irresponsibly allowed an apparently impaired driver to continue unimpeded down the highway. The Court rejects such a finding as incogitable.

ER at 9. See United States v. Lillard, 929 F.2d 500, 502 (9th Cir.1991) (stop was not pretextual where officer observed car driving erratically); United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986) (stop was not pretextual where officer observed car weaving in and out of its lane).

Perez argues that the facts that Owens and Roll (1) had been trained as interdiction officers, and (2) had officer Carlson and his dog on standby, prove they were concerned only with catching drug runners. These facts, however, prove only that the officers were prepared for the possibility that they might develop probable cause to search after making a valid traffic stop. Moreover, Perez's contention that they pulled him over because they suspected him of drug activity is not supported by the record. No evidence suggests that the officers had reason to be suspicious of Perez's van before they stopped it. See United States v. Gutierrez-Mederos, 965 F.2d 800, 803 (9th Cir.1992) (rejecting appellant's contention that primary reason for stop was because his car fit "Narcotics Trafficking Characteristics" profile), cert. denied, --- U.S. ----, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993).

In sum, there is no support for Perez's contention that troopers Roll and Owens stopped him because of a desire to search for contraband. On the contrary, any reasonable officer would have made the stop under the circumstances present here. The district court was correct in concluding that the stop was not pretextual.

II

Perez contends that even if the officers' initial stop was justified, officer Owens had no reason to ask him whether he had any guns, drugs, or money in the car. Questions asked during an investigative stop must be "reasonably related in scope to the justification for their initiation." United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) (quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)). An officer may broaden his or her line of questioning if he or she notices additional suspicious factors, United States v. Bautista, 684 F.2d 1286, 1290 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); see also United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993), but these factors must be "particularized" and "objective," United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). Whether Owens' questioning was based on a reasonable suspicion is a mixed issue of law and fact; the district court's determination is reviewed de novo. United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988).

Owens testified that his suspicions were aroused by a number of factors: Perez appeared very nervous, would not make eye contact, was sweating profusely, was not the vehicle's registered owner, was heading to a city known as a "drug hub," and had hands whose well-manicured appearance was inconsistent with Perez's stated work as a mechanic. We must consider these factors first separately, and then cumulatively.

Perez's nervous behavior, his avoidance of eye contact with officer Owens, and his profuse perspiration first caught the officers' attention. All are suspicious factors, even if they would not, alone, be sufficient to justify continued questioning. United States v. Taylor, 934 F.2d 218, 221 (9th Cir.1991) (defendant's nervousness at checkpoint constituted "minimal, articulable suspicion"), cert. denied, --- U.S. ----, 112 S.Ct. 971, 117 L.Ed.2d 136 (1992); United States v. Hernandez-Alvarado, 891 F.2d 1414, 1419 n. 6 (9th Cir.1989) (avoidance of eye contact can be considered suspicious if "special circumstances [ ] make innocent avoidance of eye contact improbable") (quoting Nicacio v. INS, 797 F.2d 700 (9th Cir.1986)); United States v. Nikzad, 739 F.2d 1431, 1432-33 (9th Cir.1984) (defendant's nervousness and failure to make eye contact gave rise to reasonable suspicion). Next, Owens discovered that Perez was not the van's registered owner. See United States v. Fernandez, 18 F.3d 874, 879 (10th Cir.1994) ("[A] defining characteristic of our traffic stop jurisprudence is the defendant's lack of a valid registration, license, bill of sale, or some other indicia of proof to lawfully operate and possess the vehicle in question, thus giving rise to objectively reasonable suspicion that the vehicle may be stolen."); United States v. Gonzalez-Lerma, 14 F.3d 1479, 1484 (10th Cir.1994) ("One recurring factor supporting a finding of reasonable suspicion ... is the inability of a defendant to provide proof that he is entitled to operate the vehicle he is driving."); see generally United States v. Betancur, 24 F.3d 73, 78 (10th Cir.1994) (permissible to ask about contraband where a driver gave registration in another person's name); United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993) (permissible to expand inquiry where driver produced a vehicle rental contract in another person's name); United States v. Soto, 988 F.2d 1548, 1554-56 (10th Cir.1993) (permissible to ask about contraband where driver could not provide the address of the person from whom he allegedly borrowed the car); United States v. Horn, 970 F.2d 728, 732 (10th Cir.1992) (permissible to ask about contraband where driver produced an un-notarized bill of sale for the vehicle).

He then learned that Perez was travelling to Salt Lake City, a known "drug hub." See United States v. Sutton, 794 F.2d 1415, 1426 (9th Cir.1986) (fact that defendant was observed in "a commonly used smuggling area" contributed to reasonable suspicion) (citing United States v. Hickman, 523 F.2d 323, 327-28 (9th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 778, 46 L.Ed.2d 639 (1976)). Finally, Owens noticed that although Perez claimed to work as a mechanic, his hands were very well-kept. This kind of perceived inconsistency can also contribute to a finding of reasonable suspicion. United States v. Oba, 978 F.2d 1123, 1128 (9th Cir.1992) (defendant's inconsistent accounts are grounds for suspicion); Bautista, 684 F.2d at 1291 (same); see also United States v. Turner, 928 F.2d 956, 959 (10th Cir.1991) ("[d]efendant claimed that he was an auto mechanic, but the officer observed that his hands were well-manicured and did not appear to be in the condition of someone who works as an auto mechanic").

The individual factors noticed by officer Owens were legitimate bases for suspicion. "[T]aken...