U.S. v. Tellez, 93-8201
| Decision Date | 30 December 1993 |
| Docket Number | No. 93-8201,93-8201 |
| Citation | 11 F.3d 530 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eduardo Sanchez TELLEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry Bemporad, Adrienne Urrutia, Asst. Federal Public Defenders, Lucien B. Campbell, Federal Public Defender, Michael S. McDonald, Asst. Federal Public Defender, San Antonio, TX, for defendant-appellant.
Margaret Leachman, Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, U.S. Atty., San Antonio, TX, for plaintiff-appellee.
Appeal from the United States District Court For the Western District of Texas.
Before REAVLEY and DAVIS, Circuit Judges, and ROSENTHAL, 1 District Judge.
Eduardo Sanchez Tellez appeals his convictions and sentence on possession of firearms by a convicted felon. We remand for dismissal of one of the counts and for amendment of the sentence.
In October 1991, at noon, Anthony Detective Arturo Montoya received information from another police officer that a parole violator, with whom he was familiar, was driving a black 4 X 4 pickup truck with large tires and a chrome roll bar with attached lights. Thirty minutes later, Detective Montoya saw a truck exactly matching this description at a gas station. The driver of the truck was not the known parole violator, but Detective Montoya could not identify the passengers he saw in the truck. Detective Montoya called for back up, and two other units joined him in stopping the truck as it left the gas station.
Detective Montoya went to the passenger side of the truck, opened the door and ordered Tellez, the passenger nearest the passenger door, to get out of the truck so that Montoya could see the middle passenger. When Tellez did not respond, Montoya reached in and pulled him out. As he pulled Tellez out, Montoya spotted the barrels of two guns projecting from underneath the passenger seat on the floorboard. Another detective who assisted in the stop recognized Tellez as a convicted felon.
Tellez was charged with two counts, one for each firearm, of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Defendant filed a motion to suppress the firearms arguing that neither the stop of the truck nor the seizure of his person was supported by probable cause or reasonable suspicion and that therefore the firearms seized thereafter should have been suppressed as "fruits of the poisonous tree." The government and Tellez agreed to carry the motion to suppress to trial. A jury trial was held in January 1993, and the jury found Tellez guilty on both counts. The court heard arguments on the motion to suppress and found that the officers had probable cause to stop the truck and to order Tellez out of the truck to see if the middle passenger was the parole violator.
The district court sentenced Tellez to concurrent terms of 36 months' imprisonment and three years supervised release on each count of possession of firearms, and imposed a mandatory special assessment of $100. In this appeal, Tellez primarily challenges the district court's denial of his motion to suppress. He also contends that the two-count indictment charging simultaneous possession of two weapons violates the double jeopardy clause.
On appeal from denial of a motion to suppress, this court reviews the district court's factual findings under the clearly erroneous standard, and the district court's conclusions of law de novo. United States v. Richardson, 943 F.2d 547, 549 (5th Cir.1991). We must review the evidence in the light most favorable to the government as the prevailing party. See United States v. Simmons, 918 F.2d 476, 479 (5th Cir.1990). The district court's ruling to deny the suppression motion should be upheld, "if there is any reasonable view of the evidence to support it." United States v. Register, 931 F.2d 308, 312 (5th Cir.1991) (citations omitted).
Tellez contends that Detective Montoya had no legal basis to stop the truck nor to seize him, and therefore the rifles, which were discovered as a result of the stop and seizure, should not have been admitted into evidence. We address these contentions in turn.
An officer may conduct a brief investigatory stop of a vehicle and its occupants, without probable cause, based solely on the "reasonable suspicion" that the person is engaged, or about to be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968); United States v. Garcia, 942 F.2d 873, 876 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 989, 117 L.Ed.2d 151 (1992). "Reasonable suspicion" is considerably easier for the government to establish than probable cause. United States v. Wangler, 987 F.2d 228, 230 (5th Cir.1993). The prosecution must demonstrate a "minimal level of objective justification for the officer's actions, measured in light of the totality of the circumstances." Id. In addition, reasonable suspicion need not be based merely on personal observation. Id. If based on other information, the question becomes whether that information possessed an "indicia of reliability." Id.
Montoya acted on the basis of an outstanding warrant for the arrest of a known parole violator who had been seen in a truck that was remarkably similar to the truck in which Tellez was a passenger. Tellez argues, nonetheless, that the stop of the truck was not justified under Terry for two reasons: 1) the police did not have the make, license plate number or year of the vehicle, and 2) the police knew the parole violator was not driving this truck and had been driving when seen thirty minutes earlier.
The police need not have every identifying characteristic of a wanted vehicle to make a valid Terry stop. See United States v. Harrison, 918 F.2d 469 (5th Cir.1990) (); United States v. Rose, 731 F.2d 1337 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984) (). The description given here, a black 4 X 4 pickup truck with large tires and a chrome roll bar with attached lights, was sufficiently specific to justify the stop.
Also, the fact that the parole violator was not driving this truck did not preclude a valid Terry stop. Thirty minutes had passed since the parole violator was seen, and he could have easily switched places with one of the passengers. The district court did not err in concluding that Montoya and the other police officers made a valid Terry stop. They had reasonable suspicion sufficient to briefly stop the truck to determine whether a known parole violator who was the subject of an arrest warrant was a passenger in the truck. 2
Tellez next challenges the legality of his seizure. He argues that even if the police officers made a valid Terry stop of the truck, they violated his...
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