U.S. v. Traxler
| Decision Date | 01 March 2007 |
| Docket Number | No. 05-2370.,No. 06-2179.,05-2370.,06-2179. |
| Citation | 477 F.3d 1243 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jerry TRAXLER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Dennis Denning, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs) Office of the Federal Public Defender, Denver, CO, for Defendant-Appellant Jerry Traxler in Case No. 05-2370.
Howard L. Anderson, Fairacres, NM, for Defendant-Appellant Dennis Denning in Case No. 06-2179.
David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief) Office of the United States Attorney, Albuquerque, NM, for Plaintiff-Appellee in Case Nos. 05-2370 and 06-2179.
Before BRISCOE, EBEL, and TYMKOVICH, Circuit Judges.
Defendants-Appellants Jerry Traxler and Dennis Denning were convicted of conspiracy to possess methamphetamine with the intent to distribute. Denning was also convicted of possession with intent to distribute. Both Traxler and Denning appeal the district court's denial of their motion to suppress evidence recovered from their vehicles when they were arrested outside Las Cruces, New Mexico. For the reasons articulated below, we find that officers had probable cause to arrest Traxler and Denning when they stopped the cars, so the evidence was properly admitted.
In addition, Traxler appeals his sentence, arguing that (1) comments by the sentencing judge referring to the Apostle Paul impermissibly injected religion into the sentencing process, violating his due process rights protected by the Fifth Amendment; (2) his sentence is contrary to United States v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir.2006), because the court failed to explain its application of the sentencing factors set forth in 18 U.S.C. § 3553(a); and (3) his sentence is otherwise unreasonable. We find no due process violation and affirm the sentence.
On October 28, 2004, Eric Hansen, a Drug Enforcement Administration Agent in Las Cruces, New Mexico, received a call from another DEA Agent in Midland, Texas. This agent reported that a reliable confidential informant had provided information about an imminent methamphetamine transaction. The informant explained in great detail that Jerry Traxler and Adam Ladue were planning to buy a quantity of methamphetamine from an Arizona-based dealer named Dennis in Mayhill, New Mexico. The informant said Traxler and Ladue would be driving a black Ford Ranger pickup1 and the two had left Midland that morning at 8:30. The Midland agent was aware that the informant had previously provided "usable" information to the DEA and local police. Vol. V at 12:3.
Hansen and others responded to this tip by setting up surveillance in Mayhill. The officers spotted a Ford Ranger pickup truck carrying two men matching the descriptions of Traxler and Ladue as it entered Mayhill. They followed the truck through Mayhill to Cloudcroft, New Mexico, twenty miles to the west.
The truck drove around Cloudcroft for about two hours, going down side streets and through parking lots. Hansen later testified the truck was performing "heat runs," which he described as a tactic familiar to law enforcement involving erratic and spontaneous maneuvers meant to determine whether a vehicle was being followed. The truck left Cloudcroft and proceeded to Alamogordo, New Mexico, where officers from Midland participating in the surveillance positively identified Traxler and Ladue. The two rented a motel room for the night and took the truck out on more late-night "heat runs" in Alamogordo.
Also during the night of October 28, the informant provided supplemental information that the man from Arizona was still en route with the methamphetamine, although plans had changed. The informant said he knew this because Traxler and Ladue had called to tell him the deal would still take place, though he could provide no further details.
On the morning of October 29, Traxler and Ladue left Alamogordo and drove to Las Cruces. In Las Cruces, Traxler and Ladue again drove haphazardly around the town before eventually meeting a green car with Arizona licence plates in a parking lot. A check on the plates established the car was registered to a Dennis Denning.
When the truck and car left the parking lot, several unmarked police vehicles followed. The truck and car followed a road to a more rural area, where they each made a sudden U-turn. This forced the surveillance vehicles to do the same, compromising the operation. The officers decided to stop both cars and ordered the occupants out at gunpoint.
Dennis Denning was driving the green car. He admitted he was in Las Cruces to sell nine or ten ounces of methamphetamine to Traxler and Ladue for $5,000. From Denning's car, officers recovered methamphetamine and an envelope on which was written the name and room number of Traxler and Ladue's Alamogordo motel. From Traxler's truck, officers recovered $4,990 from the false bottom of an aerosol can.
Traxler, Denning, and Ladue were charged with conspiracy to possess with intent to distribute more than fifty grams of methamphetamine. Denning was also charged with possession with intent to distribute more than fifty grams of methamphetamine. Ladue pleaded guilty and agreed to testify against the others at trial.
Prior to trial, Denning filed a motion, which Traxler joined, to suppress the evidence recovered from the two vehicles. The district court conducted a hearing on the motion at which the only witness was DEA Agent Hansen. Traxler and Denning argued law enforcement officers had neither reasonable suspicion nor probable cause to stop Denning, Traxler, and Ladue on the basis of the confidential informant's tip and police observations.
The district court denied the motion, analyzing the stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).2 The court concluded that the informant's tip combined with the evasive maneuvers of the vehicles in Las Cruces provided reasonable suspicion for the stop. The court held probable cause to arrest arose once Denning admitted the purpose of his trip. The evidence was admitted at trial, and a jury convicted both Traxler and Denning.
Denning and Traxler both contest the district court's denial of their motion to suppress. Traxler additionally claims error with respect to three sentencing issues. We address each argument in turn.
When reviewing a district court's denial of a motion to suppress, we accept the district court's factual findings unless they are clearly erroneous and view the evidence in the light most favorable to the government. United States v. Basham, 268 F.3d 1199, 1203 (10th Cir.2001). Nevertheless, Fourth Amendment reasonableness is a question of law, so we review de novo the district court's determination of reasonable suspicion and probable cause. Id.
The Fourth Amendment prohibits unreasonable searches and seizures. To be reasonable under the Fourth Amendment, an arrest must be supported by probable cause. Cortez v. McCauley, ___ F.3d ___, No. 04-2062, 2007 WL 503819 (10th Cir., Feb.16, 2007). Officers may, however, make an investigatory stop short of arrest based on a reasonable suspicion that a crime is afoot. Id. ( Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000)). Traxler and Denning argued law enforcement officers violated the Fourth Amendment when they stopped their cars for two alternative reasons: (1) the stop was an arrest for which law enforcement lacked probable cause, or (2) the stop was an investigatory detention for which law enforcement lacked reasonable suspicion. We reject both arguments because we conclude law enforcement officers had probable cause to arrest Traxler and Denning when they stopped the two cars.
Probable cause exists when under the totality of the circumstances there is a reasonable probability that a crime is being committed. United States v. Gordon, 173 F.3d 761, 766 (10th Cir.1999). The "`totality of the circumstances' test does not depend on whether any particular factor is innocent when considered in isolation, but on whether, taken as a whole, the facts observed by the law enforcement officers indicate a fair probability" of criminal activity. United States v. Concepcion-Ledesma, 447 F.3d 1307, 1316 (10th Cir.2006). "Even where a particular factor, considered in isolation, is of `limited significance' . . ., it nonetheless may affect the Fourth Amendment analysis when combined with other indicia of probable cause or reasonable suspicion." Id. (quoting United States v. Johnson, 364 F.3d 1185, 1192 (10th Cir.2004)). "[N]o single factor is determinative, and we view the circumstances in their totality rather than individually." Id. (quoting United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir.2004)).
A confidential informant's tip can factor into the totality of the circumstances supporting probable cause when the tip is corroborated by officers' investigations. United States v. Artez, 389 F.3d 1106, 1111 (10th Cir.2004). For example, in Artez we found probable cause when police observed that several consecutive visitors to a residence each stayed only for a short period of time, which corroborated an informant's tip that drug transactions were occurring. Under the totality of the circumstances test, any deficiency in one aspect of an informant's tip may be compensated for by other indicia of reliability. Id. (quoting Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
Officers in this case had probable cause to conclude a crime was being committed. First of all, a number of facts corroborated the material aspects of the informant's tip, including (1) the arrival in New Mexico of Traxler and Ladue, (2) the make and model of their...
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