U.S. v. Sanchez

• Decision Date: 17 March 2008
• Docket Number: No. 06-2329.,06-2329.
• Citation: 519 F.3d 1208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcos SANCHEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

519 F.3d 1208

UNITED STATES of America, Plaintiff-Appellee, v. Marcos SANCHEZ, Defendant-Appellant.

No. 06-2329.

United States Court of Appeals, Tenth Circuit.

March 17, 2008.

Laura Fashing, Assistant United States Attorney (Larry Gomez, United States Attorney) Albuquerque, NM, for Plaintiff-Appellee.

Joseph Gandert, Assistant Federal Public Defender (Stephen P. McCue, Federal

Public Defender, and Roger A. Finzel, Assistant Federal Public Defender, on the briefs) Albuquerque, NM, for Defendant-Appellant.

Before MURPHY, EBEL and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

The district court refused to suppress evidence against Marcos Sanchez. He contends police officers did not have reasonable suspicion of criminal activity so as to justify an investigatory stop of the vehicle in which he was riding. Further, he contends even if the stop was justified at its inception, the officers exceeded the scope of the stop by frisking him for weapons. We examine the use of statements and verbal acts of unidentified, but identifiable tipsters in contributing to the officers' suspicion of criminal activity. We also consider the circumstances which might justify a pat-down search incident to an investigatory stop. We affirm.

I. BACKGROUND

At approximately 2:30 p.m. on July 25, 2004, Albuquerque Police Officers Jaramillo and Lopez were standing outside their respective patrol cars when they were flagged down by an unknown woman driving a white van. The woman was very excited and told them she had seen a man wearing a gray shirt striking a woman in the face at a nearby intersection. The woman provided no other details and the police did not question her further.¹

The officers immediately drove toward the described intersection, approximately one block away. The officers did not see a man hitting a woman; they did, however, see a blue sedan and a white van pulling away quickly from a single-family home. Officer Lopez, testifying at the suppression hearing, said "it appeared to me as if [the vehicles] were trying to get out of this quickly, you know, like they were in a little bit of a hurry to get out of there...." (R. Vol. III at 37.) Officer Jaramillo likewise testified: "It just seemed like [the vehicles] were leaving the area ... in a nonprudent manner ... they were moving quickly." (Id. at 72.)

The officers also saw a number of individuals, later determined to be neighbors, pointing to the two vehicles as if to say "that's them." (Id. at 8.) Officer Lopez testified "it didn't feel like a coincidence" that the neighbors were pointing at two vehicles located near the intersection right after the officers had been alerted to a potential assault and battery in that area. (Id. at 31.) He "felt [the pointing] had to do with this male beating up the female." (Id.)

Officer Lopez stopped the van in the driveway and Officer Jaramillo stopped the sedan on the street, approximately ten yards away, out of concern the victim and/or suspect was in one of the vehicles. Lopez asked the driver and sole occupant of the van, James Wicker, to step out of the vehicle. Lopez asked Wicker if he was armed, to which Wicker responded he had a handgun in his front pocket. Lopez handcuffed Wicker and removed a .25 caliber handgun (described as approximately two inches long).² Lopez alerted Jaramillo to the presence of the gun.

At this point Officer Hinson arrived. Officers Jaramillo and Hinson ordered the three occupants out of the sedan and placed them in handcuffs. Because Wicker was armed, Jaramillo performed a pat down search of the three for officer safety reasons. Jaramillo located an empty gun holster in the waistband of the backseat passenger, later identified as Sanchez, who was wearing a gray shirt. Because Wicker had produced a concealed firearm, Jaramillo and Hinson asked the occupants of the sedan to remove their shoes in order to check for hidden weapons. Hinson located a small bag containing a white substance, later identified as methamphetamine, in the driver's shoe. After discovering the narcotics, Jaramillo asked the driver for consent to search the sedan. The driver gave oral and written consent to search.

The search revealed a .22 caliber pistol located underneath the driver's seat, but closer to the reach of a person in the backseat, where Sanchez had been sitting. Jaramillo testified the firearm fit perfectly into the holster found on Sanchez. After locating the gun, Jaramillo went to talk to the neighbors while Lopez and Hinson remained with the four individuals. While Jaramillo was speaking with the neighbors, Sanchez said, "Fucking neighbors!" (R. Vol. III at 15.) Lopez informed Sanchez the detention had nothing to do with the neighbors, but was based on a report of an assault from a passer-by. Sanchez said: "Yeah ... I did get in an argument with my girlfriend. We had a verbal argument. There was nothing physical, you know. I didn't hit her." (Id. at 15-16.) He added: "I have no reason to lie to you. I'm a convicted felon. I've done time. I'm retired." (Id. at 17.) Based on the discovery of the firearm and Sanchez's statement, Jaramillo arrested Sanchez for being a felon in possession of a firearm and transported him to the police station where records confirmed his felony status.

Sanchez was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He moved to suppress all evidence seized from the vehicle and all statements he made, contending the police lacked justification for the initial stop and exceeded the scope of the stop by frisking him for weapons. The court held a hearing at which Officers Jaramillo and Lopez testified. The court found their testimony to be credible and denied Sanchez's motion to suppress. Sanchez then pled guilty, reserving his right to appeal from the denial of his motion to suppress. He was sentenced to the mandatory minimum of 180 months imprisonment. He now challenges the denial of his motion to suppress.

II. DISCUSSION

"When reviewing a district court decision on suppression of evidence, we must accept the court's findings of fact unless, viewing the evidence in the light most favorable to the court's findings, we conclude the findings were clearly erroneous. Evaluation of the credibility of witnesses, the weight to be given the evidence, and inferences to be drawn from the evidence are for the district court. However, the ultimate determination of whether a search and seizure were reasonable under the Fourth Amendment is subject to de novo review." United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996).

A traffic stop is an investigatory detention which we analyze according to the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). United States v. Leos-Quijada, 107 F.3d 786, 792 (10th Cir. 1997). "Terry sets up a two-prong test of the reasonableness of investigatory detentions and weapons searches. First, we must decide whether the detention was justified at its inception.... Second, the officer's actions must be reasonably related in scope to the circumstances which justified the interference in the first place. At both stages, the reasonableness of the officer's suspicions is judged by an objective standard taking the totality of the circumstances and information available to the officers into account." United States v. Johnson, 364 F.3d 1185, 1189 (10th Cir.2004) (quotations and citations omitted).

A. Initial Justification for the Stop

"In order to conduct a lawful investigatory stop of a vehicle, the detaining officers must have, based on all the circumstances, `a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Leos-Quijada, 107 F.3d at 792 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). The district court concluded the officers had reasonable suspicion of criminal activity based on the woman's tip, the pointing neighbors, and the apparent urgency exhibited by the departing vehicles.³ Sanchez contends the officers lacked reasonable suspicion because the anonymous nature of the witnesses made their tips unreliable.

We first consider the woman's tip. In Johnson, we identified two reasons "why anonymous tips trouble the courts and sometimes lead to the suppression of otherwise reliable evidence." 364 F.3d at 1190. "The first concern relates to the motives of the tipster.... This is why the Supreme Court ... has required that anonymous tips be accompanied by corroboration and other indicia of reliability." Id. at 1190-91 (quotations and citation omitted). "A second concern relates not to a tip's anonymity but to its level of specificity. Overly generic tips, even if made in good faith, could give police excessive discretion to stop and search large numbers of citizens." Id. at 1191. Here, these concerns are mitigated by the circumstances surrounding the tip.

The woman's motive was less suspect than the typical anonymous tipster because she was seeking help for a victim. In United States v. Brown, we "consider[ed] it important that the caller's primary motive in contacting 911 ... was not to implicate the armed man but to obtain aid and protection for his friend." 496 F.3d 1070, 1077 (10th Cir.2007). We noted the "call is more analogous to a plea for help from a victim than to an informant's tip." Id.; see also Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (recognizing the greater weight carried by a witness's recent report, such as "when the victim of a street crime seeks immediate police aid and gives a description of the assailant").

Moreover, the woman reported the assault to the police in a face-to-face encounter, thus putting her anonymity at risk, at least to a limited degree, and allowing the police an opportunity to evaluate her credibility and demeanor. We stated in Brown that "a[n] unnamed individual who...