United States v. Nicholson

Decision Date12 July 2013
Docket NumberNo. 11–2169.,11–2169.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Jesse W. NICHOLSON, Defendant–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Gregory J. Garvey, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Las Cruces, NM, for DefendantAppellant.

Jessica Cárdenas Jarvis, Assistant United States Attorney, (Kenneth J. Gonzales, United States Attorney, and John Grasty Crews, Assistant United States Attorney, on the brief), Office of the United States Attorney, District of New Mexico, Las Cruces, NM, for PlaintiffAppellee.

Before BRISCOE, Chief Judge, McKAY and GORSUCH, Circuit Judges.

BRISCOE, Chief Judge.

Defendant Jesse W. Nicholson appeals the district court's denial of his motion to suppress evidence. He appeals after entering a conditional guilty plea to three drug and weapons-related charges. We reverse the district court's ruling on the motion to suppress and remand with directions to vacate Nicholson's convictions.

I

Midday June 17, 2010, defendant Jesse Nicholson stopped at a red light at the busy intersection of 19th Street and Main Street in Roswell, New Mexico. Nicholson was in a left-turn lane, planning to turn from eastbound 19th Street and enter northbound Main Street. Roswell Police Department Officer Doyle Baker was in his vehicle behind Nicholson. Main Street has multiple lanes in each direction.

When the traffic light changed to permit a left turn, Nicholson made a left turn into Main Street's outermost (i.e. right, northbound) lane. He did so, he says, to reach a business near the intersection. He proceeded in this fashion so he would not impede traffic when he made a quick shift into the right lane to enter the parking lot. The intersection had no markings or instructions to indicate that a driver must maintain and complete a turn by remaining in the left lane.

But according to Officer Baker, Nicholson was insufficiently cautious in making his left turn. Baker testified that by Nicholson's completing his turn in the right lane he cut off cars making right-hand turns on a red light from westbound 19th Street onto Main Street's outermost, northbound lane.1 Baker stopped Nicholson, believing Nicholson's failure to enter the left lane when completing his left turn violated Roswell ordinance 12–6–5.1. Smelling marijuana as he approached the vehicle, Baker asked Nicholson to step out of the car. As Nicholson complied with this request, Baker spotted two glass pipes—commonly used for smoking methamphetamine—and a police scanner in the driver's door pocket. Baker asked for consent to search the vehicle; Nicholson refused. Officer Baker released Nicholson after issuing a traffic citation, but seized the car.

Police towed the car and also sought a search warrant. After receiving and executing the search warrant, they discovered “various items, including over fifty grams of methamphetamine hidden underneath the dashboard, a loaded .40 caliber pistol, a scale, assorted pills, marijuana seeds, small plastic baggies, and a small notebook with items written down in it.” ROA Vol. I at 20–21.

Procedural Background

A grand jury subsequently returned a three-count indictment against Nicholson based on the items found in the car. Count 1 of the indictment charged Nicholson with unlawfully, knowingly and intentionally possessing with intent to distribute 50 grams and more of a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. Count 2 of the indictment charged Nicholson, a convicted felon, with knowingly possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Count 3 of the indictment charged Nicholson with knowingly carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i).

Nicholson filed a motion to suppress the evidence obtained from the traffic stop. Nicholson argued that N.M. Stat. Ann. § 66–7–322—which is essentially analogous to the city ordinance he was cited as violating—did not prohibit the left turn he made, and that, as a result, the traffic stop violated his Fourth Amendment rights. At the hearing held on the motion to suppress, Nicholson suggested that the court should certify the question to the New Mexico Supreme Court if it was uncertain about the interpretation of the ordinance. The district court denied this request, instead stating “I just have to do the best I can.” ROA Vol. III at 417. The court then determined the traffic stop was legal because the ordinance prohibited the left turn made by Nicholson. The court then denied Nicholson's motion to suppress.

The case proceeded to trial in March 2011, but a jury was unable to reach a verdict on any count. Nicholson subsequently entered into a conditional plea agreement, pleading guilty to all counts, but reserving his right to appeal the denial of his motion to suppress. ROA Vol. I at 29–35. Nicholson was sentenced to 63 months in custody on counts 1 and 2, to be served concurrently, and 60 months' custody on count 3, to be served consecutively to the sentences on counts 1 and 2.

II
a. Standard of Review

When reviewing a denial of a motion to suppress, we review de novo the district court's conclusion that the officer's actions were reasonable. United States v. Burciaga, 687 F.3d 1229, 1230 (10th Cir.2012). Considering the evidence in the light most favorable to the prevailing party, we defer to the district court's findings on questions of fact, reviewing only for clear error. Id. We review questions of law de novo. United States v. Johnson, 584 F.3d 995, 998 (10th Cir.2009).

b. Officer Violated the Fourth Amendment by Stopping Nicholson on the Basis of a Turn That was Not Illegal

The Fourth Amendment requires that a traffic stop be “objectively justified” at its inception. United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir.2004). That means a traffic stop must be “based on an observed traffic violation” or a police officer's “reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Eckhart, 569 F.3d 1263, 1271 (10th Cir.2009) (quoting United States v. Botero–Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en banc)). Although an officer's mistake of fact can still justify a probable cause or reasonable suspicion determination for a traffic stop, an officer's mistake of law cannot. United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir.2005). [F]ailure to understand the law by the very person charged with enforcing it is not objectively reasonable.” Id.

Nicholson argues Officer Baker made a mistake of law when he stopped Nicholson for making a left turn into Main Street's outermost lane. The district court rejected this argument, concluding Roswell traffic ordinance § 12–6–5.1 prohibited this conduct. We review the district court's construction of state law de novo. DeGasso, 369 F.3d at 1144. The New Mexico Supreme Court has not interpreted this provision, so we must instead determine how the New Mexico Supreme Court would interpret it were the court to face the issue. Tibbetts, 396 F.3d at 1137–38.

Nicholson was stopped and cited for a violation of Roswell traffic ordinance § 12–6–5.1, which regulates the position and method of turns. More specifically, the officer stopped Nicholson on the assumption that § 12–6–5.1 requires a driver making a left turn to complete the turn in the leftmost lane. Id.2 Roswell has adopted the New Mexico Uniform Traffic Code, which includes ordinance § 12–6–5.1, set out below:

12–6–5.1 REQUIRED POSITION AND METHOD OF TURNING AT INTERSECTION.

The driver of a vehicle intending to turn at an intersection shall do so as follows:

A. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the street.

B. At any intersection where traffic is permitted to move in both directions on each street entering the intersection, an approach for a left turn, except where left-turn provisions are made, shall be made in that portion of the right half of the street nearest the center line thereof and by passing to the right of such center line where it enters the intersection and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the street being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.

C. Upon a street with two (2) or more lanes for through traffic in each direction, where a center lane has been provided by distinctive pavement markings for the use of vehicles turning left from both directions, no vehicle shall turn left from any other lane. A vehicle shall not be driven in this center lane for the purpose of overtaking or passing another vehicle proceeding in the same direction. Any maneuver other than a left turn from this center lane will be deemed a violation of this section.

D. At any intersection where traffic is restricted to one (1) direction on one (1) or more of the streets, the driver of a vehicle intending to turn left at any such intersection shall approach the intersectionin the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle and after entering the intersection the left turn shall be made so as to leave the intersection, as nearly as practicable, in the left-hand lane lawfully available to traffic moving in such direction upon the street being entered.

E. No person shall drive across any private or public property, including but not limited to parking areas, driveways and service station areas, for the purpose of avoiding any traffic control device or sign.

Although the New Mexico Supreme Court has not interpreted this provision, the New Mexico Court of Appeals recently concluded the...

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