U.S. v. Villa-Chaparro, VILLA-CHAPARR

• Decision Date: 12 June 1997
• Docket Number: VILLA-CHAPARR,D,No. 96-2115,96-2115
• Citation: 115 F.3d 797
• Parties: 97 CJ C.A.R. 912 UNITED STATES of America, Plaintiff-Appellee, v. Pedroefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 797

115 F.3d 797

97 CJ C.A.R. 912

UNITED STATES of America, Plaintiff-Appellee, v. Pedro VILLA-CHAPARRO, Defendant-Appellant.

No. 96-2115.

United States Court of Appeals, Tenth Circuit.

June 12, 1997.

Robert J. Gorence, Assistant United States Attorney (Kelly H. Burnam, Assistant United States Attorney, and John J. Kelly, United States Attorney, on the brief), Las Cruces, NM, for Plaintiff-Appellee.

Ann Steinmetz, Federal Public Defender (William D. Fry, Assistant Federal Public Defender, with her on the briefs), Las Cruces, NM, for Defendant-Appellant.

Before PORFILIO, McWILLIAMS, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

A jury convicted Defendant Pedro Villa-Chaparro on one count of possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). The district court sentenced Defendant to 63 months imprisonment. Defendant appeals his conviction, claiming the district court erred in (1) denying his motion to suppress evidence arising from an illegal stop and detention; (2) denying his motion for a mistrial due to prosecutorial misconduct during trial; and (3) denying his motion to dismiss the indictment based on the prosecution's improper use of the subpoena power. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.

I.

On November 18, 1994, Officer Steve Harvill of the New Mexico State Police was patrolling Interstate 25 near Truth or Consequences, New Mexico. At approximately 1:00 p.m., Officer Harvill was near mile marker 100 on the edge of the southbound lane facing southeast. He observed a red pickup truck with clear windows traveling in the northbound lane. The sole occupant and driver of the vehicle did not appear to be wearing a seat belt harness in violation of N.M. Stat. Ann. § 66-7-372 (Michie 1978). At the suppression hearing, Officer Harvill testified as follows:

Q. How was it that you were able to see that the driver wasn't wearing a seat belt?

A. The distance between the southbound and the northbound lanes isn't that great. It was a bright day. I could see clearly through the windows.... I could see through the driver's side door window and through the out--I guess it would be outside the rear window. There was no camper on it, so the cab of the vehicle was very lit up with the sunlight.

Q. Were you inside your vehicle or outside of your vehicle?

A. When I first noticed it, I was outside my vehicle. I had just released a violator and was walking back to my unit to get in my unit. I noticed the vehicle go by, and that's when I saw that he was not wearing a seat belt.

Rec. Vol. III at 42-43. Officer Harvill drove his marked police car across the median and proceeded northbound towards the red pickup truck intending to stop the vehicle and issue its driver a seat belt citation.

At approximately the 102 mile marker, Officer Harvill observed the truck traveling in light traffic between 50 and 55 miles per hour in a 65 miles per hour zone. At this time, the driver was wearing his seat belt harness. Officer Harvill noted that the driver would not look in the truck's side mirrors or rear view mirror. Instead, the driver focused directly in front of him and ignored the officer. Officer Harvill testified why the driver's conduct was significant:

Q. Tell the court why that fact was significant to you.

A. Generally, if you get in behind somebody and they notice an officer behind you, you're--you get a little nervous, you get a little tense, but you want to check your mirrors. You want to see if you're being stopped. They want to know why he's being followed. I do the same thing; if an officer pulls in behind me, I don't know that I'm--if I was committing a violation, I'm just waiting for him to turn on his red lights. So I'm watching, you know, the mirrors. In my experience, I've noticed that people tend to just watch you constantly. When they're going by you, they're always looking at you, and this subject wouldn't. It kind of made me wonder if there was something more than just a seat belt violation.

Rec. Vol. III at 50-51. At approximately 1:04 p.m., Officer Harvill requested a New Mexico license plate check. After learning that the license plate was for a 1977 Ford pickup truck registered to an Ernesto Gomez, Officer Harvill positioned his car directly behind the truck and activated his flashing red lights. When the driver did not respond, Officer Harvill activated his siren and pulled to the left side of the truck. Only then did the driver of the truck acknowledge the police officer's presence. Officer Harvill stopped the truck at mile marker 107 at approximately 1:10 p.m. Officer Harvill testified that the distance from the time he first activated his lights until the driver responded was over one mile. Rec. Vol. III at 54.

The driver produced a valid driver's license which identified him as Pedro Villa-Chaparro. After producing the vehicle's registration, Villa-Chaparro informed Officer Harvill that an Ernesto Gomez owned the vehicle. When asked the whereabouts of Gomez, Villa-Chaparro responded that he was in Deming, New Mexico. The registration, however, indicated Gomez resided in Las Cruces, New Mexico, some sixty miles from Deming. Officer Harvill informed Villa-Chaparro that he had been stopped for a seat belt violation. When the officer asked Villa-Chaparro about his destination, he responded in broken English that he was going to Socorro, New Mexico, to purchase a hay cutter. On the floorboard of the truck, Officer Harvill noticed a white crystal substance while detecting a strong detergent odor. The officer did not see any detergent box, laundry basket, or clothes. Officer Harvill testified that in his experience, he had seen soap, air fresheners, and like items used as masking agents to hide narcotics. Rec. Vol. III at 63. This initial encounter lasted approximately two minutes.

Because Villa-Chaparro was not the registered owner of the vehicle, Officer Harvill next attempted to locate the VIN on the dashboard through the windshield. Officer Harvill intended to match the VIN plate with the registration and then run the plate through dispatch to determine whether the vehicle was stolen or the VIN altered. When the officer could not locate the VIN on the dashboard, he asked Villa-Chaparro to step out of the truck so he could look for the VIN on the driver's side door. A manufacturer's sticker on the door jam had a VIN which matched the VIN on the registration. Upwards from the bottom of the door was a small VIN plate which also matched the registration. Officer Harvill noticed, however, that the VIN plate on the door did not appear to be factory installed. The plate had extremely large rivets which covered part of the wording on the plate. The paint surrounding the plate was faded indicating the plate had been moved. Officer Harvill testified that the VIN plate on the door indicated the possibility of an altered VIN. Rec. Vol. III at 68.

One additional area where the VIN is located is on the engine. Officer Harvill asked Villa-Chaparro for permission to look under the hood. Villa-Chaparro said yes and opened the hood. Officer Harvill noticed the engine itself was extremely dirty and covered with oil. The engine compartment, namely the hood, fenders, firewall, and area around the radiator and grill, was relatively clean. The bolts attaching the fenders to the firewall appeared altered. Officer Harvill also noticed that the driver and passenger side fenders were different and the chrome bumper had paint overspray. Officer Harvill testified that the alterations in the engine compartment indicated the possibility of stolen parts or a modification to conceal narcotics. Rec. Vol. III at 74-75.

Officer Harvill decided to return to his vehicle and obtain a rag with which to wipe off the engine and locate the VIN. As Officer Harvill passed the back of the truck, he noticed the rear frame and fender bowed out slightly. The officer tapped on the fender with his knuckles. Instead of the usual hollow sound, the fender sounded hard and dull. Officer Harvill testified that "[i]t was just like there was something behind it, like maybe they had a constant framework in this bed like a reinforced bed or something." Rec. Vol. III at 82. At that point, Officer Harvill decided to radio a canine unit. At approximately 1:15 p.m., Officer Harvill requested the assistance of a border patrol agent with canine.

At approximately 1:53 p.m., Border Patrol Agent Joel Nickles and his dog Cora arrived on the scene. After speaking briefly with Villa-Chaparro in Spanish, Agent Nickels began his inspection of the truck. Cora alerted on the underneath of the bed near the side panels. Officer Harvill then looked up the wheel well. Numerous bundles of marijuana lined both sides of the bed. A piece of square tubing that appeared welded to the front and rear of the bed held the bundles in place. Officer Harvill located additional bundles on both sides of the truck's front fenders. Ultimately, a total of 297 pounds of marijuana was seized from the vehicle.

II.

Based upon the foregoing facts, Defendant claims Officer Harvill's stop of the truck and subsequent detention of his person violated the Fourth Amendment. ¹ The Fourth Amendment protects individuals from unreasonable seizures by government officials. U.S. Const. amend. IV. The touchstone of the Fourth Amendment is reasonableness. Well established standards govern our review of the district court's determination that Officer Harvill's actions were reasonable.

When reviewing a district court's denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in a light most favorable to the government. E.g., United States v. Wood, 106 F.3d 942, 945-46 (10th Cir.1997). We accept the district court's factual findings unless those findings are clearly erroneous. Id. Judging the credibility of the witnesses, determining the weight to be...