United States v. Latorre

• Decision Date: 21 June 2018
• Docket Number: No. 17-8066,17-8066
• Citation: 893 F.3d 744
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Bruce Michael LATORRE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

893 F.3d 744

UNITED STATES of America, Plaintiff–Appellee,

v.Bruce Michael LATORRE, Defendant–Appellant.

No. 17-8066

United States Court of Appeals, Tenth Circuit.

June 21, 2018

Catherine M. Young, Student Director (Tom Fleener, Faculty Director, with her on the briefs), Defender Aid Program, University of Wyoming, Laramie, Wyoming, appearing for Appellant.

Thomas Szott, Assistant United States Attorney (Mark A. Klaassen, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Wyoming, Cheyenne, Wyoming, appearing for Appellee.

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Bruce M. Latorre appeals his marijuana trafficking convictions. Latorre flew a private aircraft from California to New York and was flying back to California when police detained him in Wyoming. Several law enforcement agencies—Illinois state police, United States Department of Homeland Security, and Wyoming state police—cooperated to investigate and then stop Latorre’s aircraft at an airport in Wyoming, where they received Latorre’s consent to search his aircraft and found $519,935 in cash. A grand jury indicted Latorre on two counts: (1) interstate travel in aid of racketeering, in violation of 18 U.S.C. § 1952(a) ; and (2) conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C). Latorre moved to suppress the evidence from the search of his aircraft, and the district court denied the motion. Latorre then entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress. He now appeals that denial. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I

This case involves a three-day investigation into Latorre’s air travel. Officer¹ Chris Weidler, an Illinois state trooper who supervised the state police’s aviation unit, used a radar system to track aircraft flying over Illinois and other parts of the country. On December 7, 2015, he observed an aircraft flying through Illinois airspace without an active transponder.² Because the aircraft was flying without an active transponder, Officer Weidler did not have any flight information for the aircraft. That the aircraft was flying without a transponder raised Officer Weidler’s suspicions, so he continued to monitor the aircraft until it appeared to land at an airport in Ohio. Officer Weidler called the airport and spoke to an airport employee named John who had just refueled an aircraft. John told Officer Weidler that the pilot: paid in cash; claimed to be on a trip to visit family in Buffalo, New York; and flew an aircraft with the tail number N511FT.

Officer Weidler located the aircraft in a Federal Aviation Administration database, and discovered it was registered to Latorre in California. Officer Weidler had Officer Chad Foster, of the Illinois state police, check Latorre’s criminal record. They learned that Latorre had previous arrests for distribution and possession of marijuana, distribution of controlled substances, and weapons charges. Officer Foster also called the United States Customs Air and Marine Operations Center ("AMOC"), the agency responsible for monitoring airspace for criminal activity. AMOC had a record of previous cases involving Latorre, and AMOC’s database alerted it whenever Latorre’s aircraft was identified on radar. AMOC gave Officer Foster the names and contact information of the federal agents who were attached to Latorre’s previous cases, and Officer Foster gave this information to Officer Weidler. Officer Weidler continued to monitor Latorre’s aircraft, but the aircraft fell off of radar somewhere east of Cleveland. He called the federal agents identified by AMOC and provided details of his investigation to Special Agent Andrew Stewart, who was with Homeland Security Investigations and based in Nebraska.

The next day, at approximately 9:00 a.m., Officer Foster called Officer Weidler to inform him that an aircraft without an active transponder had just left the Hamburg, New York airport, which is just outside of Buffalo. The aircraft was traveling at the same speed as Latorre was traveling the day before, but going west this time. Officer Weidler found the quick turnaround suspicious for such a long-distance flight, especially considering Latorre had told John the purpose of his Buffalo trip was to visit family. The aircraft appeared and disappeared from radar several times as it flew through Ohio and Indiana into Illinois. The last time Officer Weidler saw the aircraft on his radar that day, it was crossing the Mississippi River into Iowa.

On the third day of the investigation, at approximately 9:00 a.m., Officer Weidler observed an aircraft without an active transponder flying near Lincoln, Nebraska, traveling at the same speed as Latorre was traveling two days earlier and as the unknown aircraft the day prior. The aircraft appeared to land at an airport in Kearney, Nebraska, and depart soon thereafter. Officer Weidler called the airport and spoke with multiple airport employees. Officer Weidler learned an aircraft with the tail number N115FT—the same tail number noted the first day of the investigation and belonging to Latorre—had landed at the airport. He also learned the pilot used a credit card belonging to Latorre and signed the receipt as Latorre. The pilot told the employees he was heading to "Evanston." Officer Weidler began searching for cities named Evanston between Nebraska and California, and found Evanston, Wyoming, which had an airport.

This focus on the Evanston airport set off a series of communications between law enforcement officials. First, Officer Weidler contacted Agent Stewart and updated him with the new information. Agent Stewart then contacted Homeland Security Investigations Special Agent Mathew Lowry, who was based in Salt Lake City, Utah, because he was closer to Evanston, Wyoming. Agent Lowry began the 45–minute drive to Evanston with Homeland Security Investigations Special Agent Ryan Weir. Anticipating that he would not reach the airport in time to intercept Latorre, Agent Lowry called Officer Chad Lichty, a task force officer with the Wyoming Division of Criminal Investigation. Agent Lowry asked Officer Lichty to stall Latorre’s aircraft until Officer Lowry arrived. Officer Lichty was busy, so he sent Officer Justin Mathson to the airport.

Dressed in plain clothes, Officer Mathson arrived at the Evanston airport shortly before Latorre’s aircraft landed. After refueling, Latorre entered the airport lobby, made eye contact with Officer Mathson, and then began walking back to his aircraft. Officer Mathson followed Latorre to his plane, where Officer Mathson pulled his shirt and coat back to reveal his badge and gun and asked to see Latorre’s aircraft registration and pilot’s license. After Officer Mathson had engaged in a brief conversation with Latorre, Agents Lowry and Weir arrived.

Latorre agreed to speak with Agents Lowry and Weir inside the airport lobby. Agent Lowry asked Latorre for permission to search his aircraft, and Latorre replied, "Yeah, I don’t mind." App’x, Vol. II at 116. Officer Mathson then searched Latorre’s aircraft and found a vacuum-sealed bag containing $519,935 in cash. Agent Lowry handcuffed Latorre and read him his Miranda rights. During subsequent interviews, Latorre admitted his role in a conspiracy to traffic marijuana to New York and bring money back to California. Six months later, on June 8, 2016, Latorre testified before a grand jury in Buffalo, New York, providing details concerning the marijuana trafficking conspiracy.

After a Wyoming grand jury indicted Latorre on January 12, 2017, he moved to suppress evidence from the search of his aircraft. The district court held an evidentiary hearing on Latorre’s motion to suppress and issued an oral ruling a week later, denying Latorre’s motion to suppress. The district court concluded: (1) Officer Weidler had reasonable suspicion to stop Latorre on the tarmac of the Evanston airport; (2) Officer Mathson’s stop was justified under the "collective knowledge" doctrine; (3) Latorre consented to the search of his aircraft; and (4) even assuming the original search was tainted by an unconstitutional detention, Latorre’s grand jury testimony was freely and voluntarily given and untainted by the unconstitutional detention.

Latorre entered into a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. The district court sentenced him to concurrent terms of 24 months’ imprisonment on each count, concurrent terms of 3 years of supervised release, and financial penalties totaling $2,000. Latorre timely appealed.

II

"When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court’s findings of fact unless they are clearly erroneous, and review de novo the ultimate question of reasonableness under the Fourth Amendment." United States v. Saulsberry , 878 F.3d 946, 949 (10th Cir. 2017) (quoting United States v. Lopez , 849 F.3d 921, 925 (10th Cir. 2017) ). We conclude Latorre’s constitutional rights were not violated by either Officer Mathson’s detention of Latorre or his subsequent search of Latorre’s aircraft. As a result, we affirm the district court’s denial of Latorre’s motion to suppress.³

A. Whether the detention was constitutional

The Fourth Amendment protects persons "against unreasonable searches and seizures." U.S. Const. amend. IV. Although an arrest requires probable cause, "a law enforcement officer may, in appropriate circumstances and in an appropriate manner, approach a person to investigate possible criminal behavior even if he lacks probable cause to arrest." United States v. Whitley , 680 F.3d 1227, 1232 (10th Cir. 2012). Such "[a]n investigatory detention is justified at its inception if the specific and articulable facts and rational inferences drawn from those facts give...