United States v. Harmon

• Decision Date: 27 January 2014
• Docket Number: No. 12–2099.,12–2099.
• Citation: 742 F.3d 451
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael HARMON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

742 F.3d 451

UNITED STATES of America, Plaintiff–Appellee,

v.Michael HARMON, Defendant–Appellant.

No. 12–2099.

United States Court of Appeals,Tenth Circuit.

Jan. 27, 2014.

Jerry A. Walz of Walz and Associates, Albuquerque, NM, for Appellant.

Jennifer M. Rozzoni, Assistant United States Attorney, Albuquerque, NM (Kenneth J. Gonzales, United States Attorney, on the brief) for Appellee.

Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON ^*, District Judge.

JACKSON, District Judge.

I. INTRODUCTION

Probably most of us have, at some time in our lives, weaved within our lane while driving on the highway. Probably most of us have, at one time or another, crossed the “fog line” separating our lane from the shoulder of the road. This case asks us to decide at what point otherwise ordinary driving errors cross the line into driving that gives law enforcement reasonable suspicion to stop a car for a traffic violation.

Mr. Harmon, the appellant in this case, was driving a car across New Mexico with drugs in his spare tire. After weaving within his lane and crossing the fog line, a police officer decided to stop the car on suspicion of violating a New Mexico statute that requires a driver to stay in his or her lane whenever practical or, alternatively, on suspicion that the driver might have been intoxicated or fatigued. During the traffic stop, the officer discovered the drugs, and Mr. Harmon was arrested and charged with possession with intent to distribute. He moved to suppress the evidence before trial, but the district court denied that motion. On appeal, we are asked to decide, among other things, whether the stop was reasonable under the Fourth Amendment. This court has jurisdiction under 28 U.S.C. § 1291, and we affirm.

II. FACTS

On a clear, calm morning in May of 2010, Officer Hermilo Lucero of the New Mexico Motor Transportation Police Department was patrolling Interstate 40 in eastern New Mexico when he noticed a silver Dodge Intrepid driven by Michael Harmon. According to Officer Lucero, Mr. Harmon was “weaving within [his] lane,” and at one point his front and rear passenger tires “crossed over the outer white line” before coming back into the lane. Vol. III, DNM 9–10. Officer Lucero did not regard this movement as unsafe. He did, however, think touching the fog line violated N.M. Stat. Ann. § 66–7–317 (“lane statute”). He also wondered whether the driver was intoxicated or fatigued. Vol. III, DNM 8–9.

Officer Lucero did not pull over the Intrepid at that moment because, as he explained, the two cars were entering a construction zone, and it would not have been safe to stop the vehicle. Instead, he followed Mr. Harmon through the construction zone, two and a half miles, at which point he turned on his lights and initiated a traffic stop. Turning on the emergency lights activated the in-dash video recording system. The resulting video captured the one minute preceding the stop and all events following. During the minute preceding the stop, the video does not show the Intrepid weaving or crossing any lane lines.

Officer Lucero asked Mr. Harmon for his license, registration, and insurance. While standing next to the car, he noticed a “strong odor of air freshener emitting from the vehicle.” Vol. III, DNM 14. Air freshener is sometimes used to mask the smell of illegal narcotics in vehicles. Id. at 14–15. Officer Lucero then asked Mr. Harmon to walk back with him to his police cruiser where he asked Mr. Harmon if he was tired or had been drinking, apparently receiving satisfactory negative answers. Officer Lucero did not administer any field sobriety tests. He told Mr. Harmon that he stopped him because he had been weaving within the lane and because he crossed the fog line in the construction zone.¹

Officer Lucero inquired about Mr. Harmon's travel plans, learning that he was driving from Arizona to Michigan to watch his daughter's graduation. He issued a written warning for failing to maintain a lane in violation of N.M. Stat. Ann. § 66–7–317 and told Mr. Harmon he was free to go.

Officer Lucero, however, was uneasy. He thought Mr. Harmon's travel plans seemed odd, and he was suspicious about the strong odor coming from the car. As Mr. Harmon walked back to his car, Officer Lucero called out to him and asked if he would mind answering a few more questions. Mr. Harmon returned to Officer Lucero's cruiser, and Officer Lucero asked if there were any illegal materials in the car. Mr. Harmon said there were not, and he consented to Officer Lucero's request to search the car.² The ensuing search revealed packages of marijuana and cocaine hidden in the spare tire.

Mr. Harmon was charged with possession with intent to distribute 500 grams or more of cocaine and possession with intent to distribute 50 kilograms of marijuana. He entered a conditional plea and moved to suppress the evidence uncovered during Officer Lucero's search. At the hearing, Mr. Harmon made several arguments, but we will only summarize those that were preserved in his appeal. First, he argued that the traffic stop was not supported by reasonable suspicion of a violation of New Mexico's lane statute. Second, Mr. Harmon challenged Officer Lucero's credibility by pointing to specific instances of Officer Lucero's behavior during the traffic stop.

The District Court denied the motion to suppress. In so doing, it made extensive factual findings. The court found Officer Lucero to be a credible witness. It also found that Mr. Harmon “swerved” before Officer Lucero initiated the traffic stop, although the term “swerve” was actually introduced in the question of an Assistant United States Attorney to which the officer assented. Vol. I, DNM 63; Vol. III, DNM 10. The district court concluded that Officer Lucero had reasonable suspicion that a violation of the lane statute was occurring or that Mr. Harmon was intoxicated or fatigued. Vol. III, DNM 30.³

A few months after Mr. Harmon was sentenced he filed motions to withdraw his plea and to reopen the motion to suppress based on information regarding a different traffic stop conducted by Officer Lucero in United States v. Sheridan, No. CR 10–0333 JC. Vol. III, DNM 122. Mr. Harmon claimed Officer Lucero's actions in the Sheridan case undermine his credibility and provide impeachment evidence that should have been disclosed before Mr. Harmon's suppression hearing. Specifically, during this earlier, unrelated traffic stop, Officer Lucero informed the dispatcher that the stop was motivated by a tip from the DEA. He also asked that the dispatcher omit that information from the Computer Aided Dispatch (“CAD”) report. Unmoved by this peek behind the law enforcement curtain, the District Court denied Mr. Harmon's motion, finding that this newly uncovered evidence possessed neither exculpatory nor impeachment value, nor was it material to Mr. Harmon's defense. Vol. III, DNM 218.

On appeal to this Court, Mr. Harmon renews his arguments that his motion to suppress ought to have been granted because Officer Lucero lacked sufficient reasonable suspicion to make the initial traffic stop; that the scope of the search exceeded the initial justification for the stop ( but see n. 2 supra ); that his motion to reopen ought to have been granted in light of Officer Lucero's behavior in the Sheridan case; and finally that he received ineffective assistance of counsel in entering into his plea agreement.

III. DISCUSSION

A. Reasonable Suspicion for the Stop

Here, the district court found two potential justifications for Officer Lucero's stop of Mr. Harmon: reasonable suspicion of violating the lane statute and reasonable suspicion of driving while intoxicated or fatigued. While we are unable to forecast with certainty how the New Mexico Supreme Court would apply the lane statute in this case, we nonetheless agree that Officer Lucero had reasonable suspicion to stop the vehicle on suspicion of impairment under New Mexico law.

In reviewing a district court's denial of a motion to suppress evidence, we apply two standards of review. The district court's factual findings receive clear error review. In light of those facts, we review the reasonableness of the underlying seizure de novo. United States v. McHugh, 639 F.3d 1250, 1255 (10th Cir.2011) (quoting United States v. Worthon, 520 F.3d 1173, 1178 (10th Cir.2008)). We review the evidence in the light most favorable to the government. Id.

A traffic stop is a seizure for purposes of Fourth Amendment analysis, United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir.2005), and the “reasonable suspicion” standard from Terry v. Ohio applies. United States v. Winder, 557 F.3d 1129, 1133 (10th Cir.2009) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). An investigatory stop “is justified at its inception if the specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime.” McHugh, 639 F.3d at 1255. We look to the totality of circumstances to determine whether reasonable suspicion exists. Id. at 1256. This is an objective inquiry, and an officer's subjective motivation for the stop “play[s] no role in ordinary [reasonable suspicion] Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); see also Botero–Ospina, 71 F.3d at 787.

In applying these standards, we defer to the reasonable inferences of law enforcement officers. Winder, 557 F.3d at 1133. Generally an officer's reasonable mistake of fact may support a finding of reasonable suspicion whereas a mistake of law usually cannot support such a finding. United States v. Orduna–Martinez, 561 F.3d 1134, 1137 (10th Cir.2009); United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir.2005) (“we have also held that failure to understand the law by the very person charged with enforcing it is not objectively reasonable”).

According to the district court and the...