U.S. v. Vazquez
| Decision Date | 10 February 2009 |
| Docket Number | No. 08-4044.,08-4044. |
| Citation | 555 F.3d 923 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio VAZQUEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Steven B. Killpack, Federal Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, Salt Lake City, UT, for Defendant-Appellant.
Brett L. Tolman, United States Attorney, and Jared C. Bennett, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.
Before BRISCOE, EBEL, and HARTZ, Circuit Judges.
Juan Antonio Vazquez was convicted by a jury of possession of methamphetamine with intent to distribute, based on the discovery of three pounds of the drug in the car he had been driving on I-15 in Utah. On appeal he raises two challenges: (1) the initial stop of his car, the duration of his detention, and the search of the car violated his rights under the Fourth Amendment; and (2) the district court improperly admitted expert testimony by a law-enforcement officer. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
In the early hours of March 24, 2006, Cedar City Police Officer Jason Thomas received a phone call from a Nevada drug-interdiction agent. The agent told Thomas that his team had just stopped a car driven by Mr. Vazquez and had observed several indicators of drug trafficking. Mr. Vazquez had refused to consent to a search of the car, and no drug dog had been available, so he had been allowed to go on his way. After letting him go, the Nevada team had learned that Mr. Vazquez was on a Drug Enforcement Administration (DEA) watch list. The agent relayed to Thomas the make, model, and license-plate number of the car driven by Mr. Vazquez.
Officer Thomas in turn passed this information on to Iron County Sheriff's Deputy Jeff Malcom. Thomas and Malcom met on the side of the freeway at 3:45 a.m. and briefly discussed Mr. Vazquez. Afterwards, as Malcom was pulling back onto I-15, he saw a car traveling in the fast lane but keeping pace with a tractor-trailer traveling in the slow lane as it passed the point where the officers had talked. It appeared to Malcom that the car was trying to stay out of his sight, and he began following the car. As he drew closer, he saw that it matched the description of Mr. Vazquez's car.
While calling in the car's license number to his dispatcher, Malcom saw Mr. Vazquez drift roughly one foot into the right-hand lane without signaling. He contacted Thomas and switched on his dashboard video camera. He observed the vehicle drift out of its lane twice more, despite the fairly straight road and favorable weather conditions. On the advice of Thomas, who was now en route with his drug dog, Malcom stopped Mr. Vazquez.
Malcom walked up to Mr. Vazquez's car and spoke to him through the car's passenger-side window, which Mr. Vazquez had rolled down. Malcom informed Mr. Vazquez of his traffic infraction and asked for his driver's license, registration card, and insurance document. Mr. Vazquez said that he did not have his license and provided an identification card along with an Illinois citation that contained his license number. He explained that he had received a ticket in Illinois and his license was being held until he paid his fine. He also gave Malcom a Tennessee registration document showing the owner as Melissa Brooke Shoup in Memphis.
Malcom thought that Mr. Vazquez's answers to his routine traffic-stop questions seemed hurried and rehearsed. He also noticed what he took to be several possible signs of attempts to conceal drug trafficking: an air freshener, a laptop computer on the front seat, and a business suit hanging in the back seat. Taken together with Mr. Vazquez's late-night travel, he became suspicious, although he did not question Mr. Vazquez about the matters giving rise to his suspicion. Malcom took the documents back to his car and awaited Thomas, who arrived less than 30 seconds later. He gave Thomas Mr. Vazquez's documents.
The two officers briefly discussed how they would proceed. About four minutes after the initial stop, Thomas (without his dog) approached Mr. Vazquez's car and asked Mr. Vazquez to accompany him back to his police car while he handled the paperwork. Thomas testified that he asked Mr. Vazquez to accompany him so that he could see whether Mr. Vazquez was impaired and could avoid the need to go back to Mr. Vazquez if Thomas had missed getting necessary information. As had Malcom, Thomas noticed in Mr. Vazquez's car what he recognized as common indications of drug trafficking: a key in the car's ignition that was the only one on its chain, two energy-drink cans, a laptop and suit, the cleanliness of the car, and the absence of other luggage.
In the officer's car Mr. Vazquez explained that he had drifted into the other lane because it was windy and his car had small tires. He also repeated the explanation he had given Malcom for not having a driver's license. While Thomas wrote out the traffic citation, he ran a check on Mr. Vazquez that revealed that the driver's license was valid but that he had a criminal history of cocaine trafficking. In response to further questioning by Thomas, Mr. Vazquez said that he lived in Normal, Illinois, where he had an auto-repair business. He was returning home after visiting his children in Las Vegas. For the trip he had borrowed the car from his girlfriend of four years, who lived in Tennessee, because it was more fuel-efficient than his own. When asked for his girlfriend's name, Mr. Vazquez gave it as Brooke Shepard and then Melissa Brooke Shepard. He had difficulty responding to a question about her employment, pausing for some time before answering that she was between jobs. Thomas then suggested that Melissa Brooke Shepard was not the person to whom the car was registered. Mr. Vazquez responded that his girlfriend might have registered the car under her maiden name of Shoup. Mr. Vazquez said that he had his girlfriend's phone number stored in his cell phone, which was in his car. (Although the record is not clear on this point, it appears that while Mr. Vazquez was with Thomas in Thomas's car, Malcom determined that the car driven by Mr. Vazquez had not been reported stolen, but he may not have advised Thomas of this until later.)
Thomas, who was apparently completing his paperwork, then asked a series of questions about contraband Mr. Vazquez might have in the car. Mr. Vazquez answered "no" to questions about weapons, cocaine, and heroin, but altered his body language in answering "no" when asked about methamphetamine.
At this point, 19 minutes after the initial stop, Thomas asked Mr. Vazquez for consent to search his vehicle. Mr. Vazquez refused. Thomas then told Mr. Vazquez that he was going to have his dog sniff the car's exterior while Mr. Vazquez and Malcom tried to reach the vehicle's owner. About three minutes later, the drug dog, Gino, began the sniff. Gino alerted at the car's front and rear bumpers. Gino then leapt through the open passenger-side window and alerted in the car's back seat.
Thomas told Mr. Vazquez that the alerts gave the officers probable cause to search the car for narcotics. A brief search at the roadside did not yield any contraband. Thomas moved the car to the sheriff's office. The search there yielded a container of methamphetamine in front of the passenger-side front wheel well. Mr. Vazquez was arrested for possession of methamphetamine.
Before trial Mr. Vazquez sought to suppress all statements and evidence derived from the traffic stop and ensuing search. Among other contentions, he argued that the stop and his continued detention were not based on reasonable suspicion of criminal activity and that the officers lacked probable cause to search the car. The district court conducted an evidentiary hearing and denied the motion. See United States v. Vazquez, No. 2:06-CR-196 TC, 2007 WL 853764 (D.Utah. Mar.16, 2007). It found that Mr. Vazquez's car had crossed lanes on three occasions, justifying the initial stop, and that the drug dog had alerted three times, providing probable cause for the search. It also decided that the detention from the time of the stop to the time of the alerts was reasonable. On appeal Mr. Vazquez challenges the initial stop, the duration of the detention, and the search of the vehicle.
Also before trial Mr. Vazquez filed a motion in limine to exclude the expert testimony of DEA Special Agent Jeffery Bryan under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court held a hearing at which the government called Bryan as a witness to provide the testimony he would give at trial. He testified regarding his training, his extensive experience in drug-trafficking investigations (including undercover drug purchases), his work and contacts with drug agents in other jurisdictions, the methamphetamine quantities handled by traffickers at different levels of the distribution chain, the drug's pricing, and "fronting" (trade-credit) arrangements between traffickers. The district court denied Mr. Vazquez's motion, saying:
[T]here is no way in this business, this area of expertise, that there's anything other than experience and on-the-job training, and the seminars and the years of experience and hundreds of cases. And that's what drug experts typically base their opinions on, and I don't find anything unreliable in that methodology given these broad standards.
On appeal Mr. Vazquez does not challenge Bryan's trial testimony on topics presented at the pretrial hearing. Rather, he complains of Bryan's testimony regarding the ways that drug traffickers attempt to avoid detection.
"When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accept the district...
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