U.S. v. Valdez, 90-5126

• Decision Date: 22 May 1991
• Docket Number: No. 90-5126,90-5126
• Citation: 931 F.2d 1448
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus I. VALDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1448

931 F.2d 1448

UNITED STATES of America, Plaintiff-Appellee, v. Jesus I. VALDEZ, Defendant-Appellant.

No. 90-5126.

United States Court of Appeals Eleventh Circuit.

May 22, 1991.

Philip M. Gerson, Miami, Fla., for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., Linda C. Hertz, Dawn Bowen, and Terry Lindsey, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, CLARK, Circuit Judge, and KAUFMAN ^*, Senior District Judge.

FRANK A. KAUFMAN, Senior District Judge.

Once again, as in United States v. Miller, 821 F.2d 546 (11th Cir.1987), and United States v. Smith, 799 F.2d 704 (11th Cir.1986), "the issue in this case is whether the stop of appellant['s] vehicle was reasonable under the fourth amendment." Smith at 705. The district court upheld the stop as a valid enforcement of the traffic laws. We disagree and reverse. However, we also remand to the district court to determine whether there was or was not probable cause to stop appellant's vehicle and to search it for narcotics for reasons unconnected with the traffic stop.

I.

On the afternoon of May 8, 1989, Detective Houck and Special Agent Hills of the Metropolitan Dade County Police Department conducted surveillance of a residence located in Miami, Florida. From an unmarked police car Houck observed appellant Valdez arrive in front of the residence in a Honda Accord. Valdez exited the Honda, knocked on the front door of the residence and was admitted inside. Shortly thereafter, two other men, subsequently identified as Jose Fernandez and Jorge Fernandez, Valdez's co-defendants in the proceeding below, ¹ exited the house, moved two cars parked in its yard, and then moved the Honda so that the trunk of the Honda was in close proximity to the front door of the residence. The two men opened the Honda's trunk, reentered the residence and came out within the next few minutes carrying plastic garbage bags, which, Houck noted, appeared to be fairly heavy. The two men placed the garbage bags in the trunk of the Honda, reentered the residence and very quickly left the residence again, carrying additional bags which they also placed in the trunk. Shortly thereafter, Valdez came out of the residence, got into the Honda and drove away.

Detective Trujillo, the lead investigator of the Dade County narcotics team, of which Houck and Hills were members, monitored the police radio from another location for information from Houck and Hills about events occurring at the residence. Trujillo was joined by Officer Almaguer, a uniformed Metro patrol officer who was dispatched by Trujillo to assist the narcotics investigation team. Trujillo testified in the court below, in a hearing involving Valdez's motion to suppress the fruits of a search by Almaguer of the Honda, that he advised Almaguer that:

[W]e were conducting an investigation and we had a vehicle we wished for him to follow, and if that person was to commit a traffic infraction which he normally cites somebody for, we wished for him to stop the vehicle.

If that occurred, and he did stop the vehicle, I wanted him to ask the occupant of the vehicle for consent to search the vehicle, and I instructed him to ask him if he would consent to a search. ²

However, Almaguer testified during the suppression hearing that he did not recall Trujillo's qualification that he (Almaguer) had been directed to stop the Honda only for something which constituted the kind of traffic offense for which he would ordinarily stop a driver.

Over the police radio Houck provided Trujillo with a description and the tag number of the Honda and reported when Valdez drove away from the residence. Houck left his surveillance position at the residence and followed the Honda to 122nd Avenue where he confirmed that Trujillo had correctly identified the Honda. As Valdez approached the intersection of 8th Street and 122nd Avenue, Trujillo was positioned across that intersection with Almaguer in a patrol car directly behind him. The Honda made a right turn against a red traffic light signal. As or immediately after Valdez made that turn, another automobile, travelling from the left of the spot at which Valdez made his turn, slowed down abruptly in order to avoid a collision with Valdez's car. Both Trujillo and Almaguer testified that they observed Valdez violate the right-of-way of that other automobile. However, neither officer was able to state the speed at which that other vehicle was travelling before it so slowed down, nor did either Trujillo or Almaguer hear any screeching of the tires of that car.

After the Honda turned right, Trujillo informed Almaguer that the driver of that vehicle was the subject of the narcotics investigation being then conducted. Almaguer followed the Honda eighteen blocks from the intersection at which the traffic violation had occurred and then stopped it. Trujillo, parked two blocks away from the point of that stop, observed Almaguer conduct the stop. Almaguer approached Valdez and asked for Valdez's driver's license and registration. Valdez produced his driver's license and explained that a friend had loaned the car to him. The conversation was in Spanish. Almaguer next asked Valdez whether he was aware of why Almaguer had stopped him, to which question Valdez answered "yes." Almaguer testified that he asked Valdez for permission to search the car and Valdez consented. After searching the interior of the car, Almaguer found five sealed trash bags inside the trunk, and asked Valdez what was inside the bags. Valdez replied that it was cocaine. Almaguer then placed Valdez under arrest, handcuffed him, and placed Valdez in the back of Almaguer's patrol car until Trujillo arrived on the scene. Almaguer issued Valdez a citation for violation of the right-of-way. Thereafter, Trujillo advised Valdez of his Miranda rights.

During the suppression hearing in the district court, Almaguer stated that but for Trujillo's instructions that the Honda was the car which the narcotics unit wanted stopped, he (Almaguer) would not have pursued the car and issued the traffic citation. Almaguer also testified that he ordinarily did not search a vehicle for a violation of a right-of-way, or even ask its driver for his consent to search and that, based solely on the traffic violation which he had observed, he had no reason to ask permission to search Valdez's car.

II.

The district court concluded that the traffic stop was objectively justified and was not pretextual. When a defendant raises such a claim of pretextuality, "the proper inquiry is whether a reasonable officer would have made the seizure in the absence of illegitimate motivation," Smith at 708 (emphasis in original), and requires " 'an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' and not on the officer's actual state of mind at the time of the challenged action taken." Id. at 709, quoting Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370. "[I]n determining when an investigatory stop is unreasonably pretextual, the proper inquiry, again, is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose." Smith at 709 (emphasis in original), citing and relying upon United States v. Cruz, 581 F.2d 535 (5th Cir.1978) (en banc), as a binding precedent. ³ As to Cruz, Judge Kravitch wrote in Smith that "[t]he stop [in Cruz ] was unreasonable not because the officer secretly hoped to find evidence of a greater offense, but because it was clear that an officer would have been uninterested in pursuing the lesser offense absent that hope." Id. at 710.

In Smith, a Florida State Trooper, concluding that Smith's car matched a drug courier profile, followed the car for about a mile and a half, observed it cross over six inches into the emergency lane, and stopped it. In rejecting the government's contentions that, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the officer validly made the stop because of reckless driving or failure to change lanes safely, this court noted that the deviation from the lane was about six inches, that only slight "weaving" within a single lane was involved, that the officer had no interest in investigating possible drunk driving, and that before the officer observed any traffic violation, he had instituted the pursuit because of his thoughts concerning drug involvement. In this case, also, it was the officers' interest in drug matters which brought about the surveillance of the residence and the trailing of the Honda.

In United States v. Miller, 821 F.2d 546 (11th Cir.1987), "[t]he facts ... are nearly identical to those in [Smith ]." Id. at 546. In Miller, the same Florida officer who was involved in Smith testified that he would have made the stop regardless of whether there had been a traffic violation. Judge Clark, writing for this court, reversed the district court's denial of Miller's motion to suppress, concluding that the stop had been made due to the officer's hope of catching a drug courier and not because Miller had momentarily strayed a few inches over the white line, and that, therefore, the stop was pretextual.

In reaching its conclusion that the stop in this case was objectively justified and not pretextual, the court below stated that "the uniformed patrol officer was charged with enforcing Florida traffic laws, '... and this Court can presume no less than that a patrol officer would obey...