United States v. Mirabal

• Decision Date: 29 November 2017
• Docket Number: No. 16-2188,16-2188
• Citation: 876 F.3d 1029
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gabriel MIRABAL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

876 F.3d 1029

UNITED STATES of America, Plaintiff–Appellee,

v.Gabriel MIRABAL, Defendant–Appellant.

No. 16-2188

United States Court of Appeals, Tenth Circuit.

November 29, 2017

Gabriel Mirabal filed a brief pro se.

Mark T. Baker (Carter B. Harrison, with him on the briefs), Peifer, Hanson & Mullins, P.A., Albuquerque, New Mexico, for Defendant–Appellant.

Nicholas J. Ganjei, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaintiff–Appellee.

Before KELLY, HOLMES, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

This appeal is brought by Mr. Gabriel Mirabal. He is a convicted felon, which prevented him from lawfully possessing a gun. 18 U.S.C. § 922(g)(1). But authorities thought that they had seen Mr. Mirabal put an assault rifle in the trunk of a car. This sighting led authorities to arrange for a local officer to stop Mr. Mirabal for a traffic violation and to search the trunk. Carrying out these arrangements, Deputy Micah Barker saw Mr. Mirabal speeding and initiated a traffic stop.

After telling Mr. Mirabal that he had been speeding, Deputy Barker looked for an assault rifle. Though he didn’t find one, he did find a kilogram of cocaine in the car’s interior. The discovery of cocaine in the car became key evidence for one of the eventual charges against Mr. Mirabal. In defending against these charges, Mr. Mirabal argued that the search had violated the Fourth Amendment. This argument did not convince the district court, and the case went to trial.

At the trial, the Government presented testimony by the owner of the car, Mr. Dominic Anaya, who had pleaded guilty to his own drug crimes. Mr. Anaya testified that he and Mr. Mirabal had worked together to sell cocaine. So Mr. Mirabal set out to impeach Mr. Anaya. To do so, Mr. Mirabal tried to question Mr. Anaya about how much he expected his sentence to drop as a result of his plea agreement. Mr. Mirabal was allowed to probe the plea agreement in general terms, but not in detail.

On appeal, Mr. Mirabal raises two primary arguments and three supplemental arguments.

First, Mr. Mirabal challenges the introduction of evidence involving the cocaine found in the car. Deputy Barker had probable cause to believe that there was an assault rifle in the trunk, so he looked there. But Deputy Barker claims that he could not see the back of the trunk because of a long speaker box blocking his view. To see the trunk better, he entered the back seat and pulled an armrest down. It was then that Deputy Barker found the cocaine.

Mr. Mirabal alleges that Deputy Barker violated the Fourth Amendment by going into the interior of the car and pulling the armrest down. We disagree, concluding that the officer complied with the Fourth Amendment by acting reasonably in trying to find a way to see into the back of the trunk.

Second, Mr. Mirabal challenges the restrictions placed on his cross-examination of Mr. Anaya. For the sake of argument, we may assume that the restrictions violated the Confrontation Clause. Even if they did, however, any possible violation would have been harmless in light of the strength of the prosecution’s case and Mr. Mirabal’s opportunity to thoroughly undermine Mr. Anaya’s credibility in cross-examination.

Finally, Mr. Mirabal alleges insufficiency of the evidence, destruction of evidence, and withholding of evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We reject these challenges, concluding that the trial evidence was sufficient to convict, the evidence was not destroyed in bad faith, and Mr. Mirabal did not identify the evidence allegedly withheld in violation of Brady .

In light of these conclusions, we affirm the conviction.

I. Motion to Suppress

We begin with Mr. Mirabal’s argument for suppression of evidence involving the cocaine found in the car.

A. Standard of Review

On this issue, we review the district court’s "factual findings for clear error and view the evidence in the light most favorable to the government." United States v. DeJear , 552 F.3d 1196, 1200 (10th Cir. 2009). A factual finding is clearly erroneous if it lacks evidentiary support or if a review of the evidence leaves us " ‘with the definite and firm conviction that a mistake has been made.’ " United States v. Haymond , 869 F.3d 1153, 1157 (10th Cir. 2017)(quoting United States v. Hernandez , 847 F.3d 1257, 1263 (10th Cir. 2017) ). The ultimate reasonableness of the search, however, is reviewed de novo. DeJear , 552 F.3d at 1200.

B. The Ruling in District Court

Mr. Mirabal moved to suppress evidence of the cocaine, arguing that Deputy Barker’s search had exceeded the scope permitted by the Fourth Amendment. The district court credited Deputy Barker’s testimony and ruled that the search had complied with the Fourth Amendment. Mr. Mirabal challenges this ruling.

C. Reasonableness of the Search

In challenging the ruling, Mr. Mirabal does not question the existence of probable cause regarding the presence of an assault rifle in the trunk. He instead asserts that Deputy Barker acted unreasonably by entering the back seat and pulling the armrest down.¹ We disagree.

Law-enforcement officers may search a car without a warrant upon probable cause to believe that contraband is present. United States v. Chavez , 534 F.3d 1338, 1345 (10th Cir. 2008). But a search is permitted only in the parts of the car where the officers could reasonably expect to find the contraband. See United States v. Ross , 456 U.S. 798, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ("The scope of a warrantless search of an automobile ... is defined by the object of the search and the places in which there is probable cause to believe that it may be found."). For example, "[p]robable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab." Id .

The officers are limited not only in the place to search but also in the manner of searching, which must be "reasonable under the circumstances." United States v. Mendoza , 817 F.3d 695, 702 (10th Cir. 2016). Thus, an officer can decide how to carry out a search as long as the officer’s decision is reasonable. Lawmaster v. Ward , 125 F.3d 1341, 1349 (10th Cir. 1997). For example, the officer may deem it necessary to perform "separate acts of entry or opening" in order to conduct the search. Ross , 456 U.S. at 820–21, 102 S.Ct. 2157.

Mr. Mirabal presents five arguments for why Deputy Barker should not have entered the back seat and pulled down the armrest:

1. The back of the trunk, behind the speaker box, was too small to fit an assault rifle.

2. The package was not immediately recognizable as contraband, preventing seizure under the plain-view doctrine.

3. Deputy Barker could discover whatever lay in the back of the trunk by leaning over the speaker box and searching with his hands.

4. The compartment behind the armrest (where the cocaine was found) was too small to contain an assault rifle.

5. Deputy Barker did not know whether the car had a trunk-access panel.

We reject Mr. Mirabal’s first argument. Deputy Barker testified based on his military experience and familiarity with assault rifles. In light of this experience, he testified that a rifle could have fit behind the speaker box. See Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (recognizing that police officers can draw inferences from prior experience). The district court had little reason to question Deputy Barker’s explanation for why he had tried to view the back of the trunk.

Mr. Mirabal criticizes Deputy Barker’s explanation, contending that the assault rifle was too big to fit in the part of the trunk hidden from view. For this contention, Mr. Mirabal relies on a 1969 manual describing the length of assault rifles. But Mr. Mirabal failed to present the district court with evidence of this manual. Without such evidence, the district court could reasonably rely on Deputy Barker’s explanation for why he had tried to see into the back of the trunk.

We also reject Mr. Mirabal’s second argument (that the package was not recognizable as contraband). Mr. Mirabal did not present this argument in district court, and he has not urged plain-error review. Therefore, we decline to consider this argument. See United States v. Lamirand , 669 F.3d 1091, 1099 n.7 (10th Cir. 2012).

Mr. Mirabal’s third argument is that Deputy Barker could have looked into the trunk without pulling the armrest down. The only evidence on this issue came from Deputy Barker. He testified that

• he could see only the front part of the trunk because a speaker box ran nearly the entire width of the trunk,

• he could not see the space behind the speaker box,

• the space behind the speaker box was big enough to contain a rifle,

• the speaker box would not move, which prevented Deputy Barker from searching the back of the trunk, and

• he entered the back seat to see if he could gain access to the trunk by folding the seats down.

The district court credited Deputy Barker’s testimony, and Mr. Mirabal does not point to any evidence of an ability to see into the back of the trunk without entering the back seat. We therefore reject Mr. Mirabal’s third argument.

Mr. Mirabal’s fourth argument is that the area behind the armrest was too small to fit an assault rifle. This argument ignores Deputy Barker’s reason for looking behind the armrest. He folded the armrest down to gain access to the trunk, not to find another hiding space within the car. And when Deputy Barker pulled the armrest down, he saw a void that appeared to expose the trunk. Moments later, he saw the package containing the cocaine.

The district court again found Deputy Barker’s testimony credible. The photographs presented to the court show only an opaque black space behind the armrest; these photographs do not clearly support either side. With these inconclusive photographs, the...