U.S. v. Santillanes

• Decision Date: 09 June 1988
• Docket Number: No. 87-1870,87-1870
• Citation: 848 F.2d 1103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James B. SANTILLANES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1103

848 F.2d 1103

UNITED STATES of America, Plaintiff-Appellee, v. James B. SANTILLANES, Defendant-Appellant.

No. 87-1870.

United States Court of Appeals Tenth Circuit.

June 9, 1988.

Paul J. Kennedy, Albuquerque, N.M., for defendant-appellant.

Stephen R. Kotz, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., James Tierney and Joe M. Romero, Jr., Asst. U.S. Attys., on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before SEYMOUR and SETH, Circuit Judges, and O'CONNOR, District Judge ^*.

SETH, Circuit Judge.

This is an appeal of the trial court's denial of appellant's motion to suppress evidence seized and statements made during a stop of appellant at an airport by two city police officers. Appellant was indicted and entered a conditional plea of guilty reserving the right to appeal the denial of his motion to suppress. Appellant was sentenced May 22, 1987 to seven years imprisonment with a three year mandatory supervised release.

Detective Haury of the Albuquerque Police Department had received a tip that a felon (not appellant) would be arriving at the Albuquerque Airport. While the detective was at the airport with another officer he saw appellant leave the Southwest Airlines lobby and boarding area, a place within the airport security, and enter the main lobby of the airport. A Southwest flight from California had just arrived. Officer Haury recognized appellant from an arrest in which the officer participated a month earlier for appellant's possession of heroin with intent to distribute, an offense for which he was under indictment.

Although Detective Haury did not know the details of appellant's pretrial release his impression was that individuals who have been indicted for a felony were not permitted to leave Bernalillo County. Based on this impression he testified that he decided to stop and question appellant to find out if appellant had violated the conditions of his pretrial release. This was his reason for the stop. Such a violation of conditions of release is not a crime in New Mexico but a matter to be resolved by a judge when made known to him or to her.

The detective called out to appellant and upon hearing his name, while walking out of the boarding area and seeing Detective Haury, appellant looked away, veered away and started to walk at an increased pace. The detective who was armed and who is six feet four and weighs 350 pounds reached out and placed his hand on appellant's shoulder to stop him. Appellant in contrast is five feet ten and weighs some 200 pounds less than the officer. Appellant stopped and Detective Haury, after identifying himself, asked appellant what he was doing. Appellant responded: "You know what I am doing." Both the officers immediately "patted him down" for weapons. Detective Haury testified that the reason for so doing was that this was his "standard procedure" when he is questioning an individual he has previously arrested or has been in contact with during an investigation. No mention was made that they considered appellant armed or dangerous. No weapons were discovered, but the officers continued. Both reached in appellant's pockets one officer on one side and the other on the other side. One found a roll of money and the other a beer can. This took place in the main lobby of the airport near the entrance to a gift shop. There were a considerable number of people around, and appellant requested that if the detectives were going to continue that it be done in a private room rather than the public lobby.

The men moved to a nearby airport security office where the officers continued their search with appellant ordered to lean forward with hands against the wall or locker with feet apart. This was apparently done twice. Detective Haury described this procedure as a "narcotics pat-down", as does the Government, but the term is not defined. In any event, above appellant's waistband in the front the officers felt a lump, reached in and removed a plastic bag containing what was later determined to be heroin. The detective then formally arrested appellant.

Detective Haury testified, as mentioned, that he initially stopped appellant on the "leaving the jurisdiction" question, but after stopping him he suspected appellant was carrying narcotics. He interpreted appellant's question, "Who snitched me off?", made after the search continued in the security room, according to the trial court's findings, as referring to narcotics rather than to a violation of bail. It is apparent that immediately after the stop to question appellant and after one or two questions, "What are you doing?", and without a real answer the thorough search began expressly for narcotics which, as mentioned, is referred to as a "narcotics pat-down." The testimony of the detective and appellant demonstrated the appellant was at no time free to leave after the initial stop.

A federal grand jury indicted appellant for one count of possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1). Prior to trial appellant filed a motion to suppress the evidence and statements made during the stop and arrest. An evidentiary hearing was held and the trial court denied the motion.

It is apparent from the record, as mentioned, that appellant was not free to leave after the initial stop and a thorough search began immediately. As mentioned, the appellant was being searched and things taken from his pockets in the lobby area before he asked to be taken to a less public place.

The trial court, after a reference to the pre-existing charges against defendant, to the officers' knowledge of "matters involving criminal conduct" by defendant, and to the time and place he was seen in the airport, found "And that based upon his previous knowledge of the defendant and knowing that he was not permitted to leave Bernalillo County, he detained the defendant.

"And I think these facts constitute the basis under Terry versus Ohio, that permits a contemporary detention in order to justify an investigative stop."

Also, the court here found:

"But in any event, he--the initial pat-down was merely for the search of weapons to protect himself and the other officer and this is also permissible under the law.

"Then after--during the weapons pat-down, the defendant requested to be taken to a--an area outside of the view of the public. And at that point, he made the statement, 'Who snitched me off,' at which time then Officer Haury believed that there was something in addition to the weapons search. At that point he made a pat-down for narcotics and he found the narcotics, at which time he advised the defendant of his rights."

The trial court also found that defendant was not in "custody" "until such time as the heroin was found," but as above stated found he was "detained."

Appellant contends that the trial court did not from the facts reach the correct legal conclusion and that his Fourth Amendment right to be free from unreasonable searches and seizures was violated. We identified in United States v. Cooper, 733 F.2d 1360, 1363, (10th Cir.), and again in United States v. Espinosa, 782 F.2d 888, 890 (10th Cir.), three types of encounters between citizens and the police and the constitutional protections provided for each encounter.

"The first is referred to as a police-citizen encounter and is characterized by the voluntary cooperation of a citizen in response to non-coercive questioning. This has been held to raise no constitutional issues because this type of contact is not a seizure within the meaning of the Fourth Amendment....

"The second type of encounter is the Terry -type of stop. The standards here are set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Most courts characterize this as a 'brief, non-intrusive detention during a frisk for weapons or preliminary questioning * * *.' This is considered a seizure of the person within the meaning of the Fourth Amendment, but need not be supported by probable cause. In order to justify an investigatory stop, the officer need have only 'specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime.'

"The final category is an arrest which is characterized by highly intrusive or lengthy search or detention. An arrest is justified only when there is probable cause to believe that a person has committed or is committing a crime." (Citations omitted.)

In the instant case, the encounter between appellant and the detective cannot be characterized as the voluntary cooperation of a citizen in response to noncoercive questioning. On the contrary, the detective physically restrained appellant to stop and question him. The officer at the evidentiary hearing admitted that if appellant had refused to cooperate and responded "I'm not stopping I'm going on" that he "probably would have detained him." Another officer participated. In reviewing the record we cannot find that the initial encounter between appellant and the detective was voluntary and the questioning noncoercive. Appellant had no choice but to stop and respond to Officer Haury's questions. He testified that he was afraid by reason of a previous violent encounter with Detective Haury.

The Supreme Court in United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, stated:

"We adhere to the view that a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards."

The record shows that the officer physically stopped and detained appellant. Appellant was seized and did not voluntarily consent to the search or questioning by both officers.

We are thus left with a consideration of this as a Terry stop. In United States v. Recalde, 761 F.2d 1448, 1454 (10th Cir.), this court discussed when a Terry type stop...