United States v. Rosales-Giron
| Decision Date | 14 November 2014 |
| Docket Number | No. 14-60149,14-60149 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellant v. RENIERI JOEL ROSALES-GIRON, Defendant - Appellee |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Appeal from the United States District Court for the Southern District of Mississippi
Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
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This interlocutory appeal concerns the district court's granting Renieri Rosales-Giron's motion to suppress, regarding a Mississippi Highway Patrolman's conducting a traffic stop of Rosales' vehicle. Primarily at issue is whether the Trooper had probable cause to believe Rosales committed a traffic violation (careless driving), justifying the stop. REVERSED and REMANDED.
The following factual recitation is based on evidence presented by the Government (testimony by the Trooper and his video recording of Rosales' vehicle) at the hearing on the suppression motion. Rosales did not present evidence.
The Trooper was assigned to the Highway Patrol's Traveling Criminal Apprehension Program, which focuses on interstate criminal activity. On 23 October 2013, he was in the median of Interstate 20 at mile-marker 61 in Rankin County, Mississippi. In the median, his vehicle was surrounded by an open area with an unobstructed view of oncoming and passing traffic. While observing eastbound traffic, the Trooper heard the sound of an eastbound vehicle driving on the rumble strips (the indentations on the side of the road that alert drivers to alter their trajectory), outside (to the right of) the fog line (a white line on the right side of the right lane on a highway). Because this rumbling "caught [his] eye", the Trooper concluded the vehicle had run off the road.
Based on his training, the Trooper was suspicious of the vehicle, a van. He knew perpetrators of crimes involving highway transportation of illegal drugs and aliens often operate with two vehicles: the first serves as a decoy to attract the attention of law-enforcement officers, while the second perpetrates the principal offense, such as transporting drugs or aliens. Consequently, the Trooper waited about one minute to pursue the van, after concluding another vehicle was not following it.
After reaching the van in approximately one minute, the Trooper drove side-by-side with it and observed it move over onto the fog line. (The Trooper was unable to see into the van because its windows were tinted black.) He then changed lanes, drove behind the van, and activated his vehicle's bar light (blue). A video camera displaying a Trooper's view from the front of his vehicle activates automatically when the vehicle's bar light is activated. (The Trooper could not recall whether he manually initiated the recording or whether it commencedbecause he activated the bar light.) Subsequently, the Trooper observed the van drive on ("hit" or "bump") the fog line (depicted in the video recording), which prompted him to conduct the stop.
The Trooper stopped the van for careless driving, a violation of Mississippi law. Miss. Code Ann. § 63-3-1213 (). Rosales was the driver of the van. The Trooper issued him a warning citation for, inter alia, careless driving. During the stop, the Trooper discovered numerous individuals in Rosales' vehicle, later claimed to be illegal aliens.
On 23 November 2013, Rosales was charged in a single-count indictment with transporting aliens for the purpose of commercial advantage or private gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He moved to suppress the evidence discovered during the stop. In that regard, as expressed during the suppression hearing, Rosales challenged only whether the initial stop was lawful, not any of the conduct following the stop.
In his suppression-hearing testimony, the Trooper explained why he stopped Rosales. The Trooper justified the stop based only on violations of Mississippi's careless-driving statute, which he explained occurred three times: Rosales drove on the rumble strips, outside of the fog line, when he passed the Trooper at mile-marker 61; and Rosales hit or bumped the fog line twice after the Trooper began following him-while the Trooper and Rosales were side-by-side and later, when the Trooper was behind Rosales while the video camera was recording. Concerning the Trooper's observing Rosales' hitting the fog line, the Government asked the Trooper: "So did he run off the side of road more than once before you stopped him?" He replied:
The video recording made by the Trooper was shown during the hearing, with his being questioned about it while it was being shown. As noted, Rosales did not present evidence.
In ruling from the bench, the district court stated: "I would have a hard time sustaining the ticket for careless driving when the driver didn't run off the road" and . Regarding the vehicles being side-by-side, the court found, inter alia, that Rosales "simply moved over and happened to run onto the fog line". The court stated to the Government: "You'd be raising Cain with the judge if you got a ticket for deviating six inches . . . onto the white [fog] line . . . , wouldn't you?" In granting the motion, the court ruled: "There just simply was not enough carelessness in this to be a danger to anybody".
The Government's motion for reconsideration was denied. United States v. Rosales, No. 13-CR-96 (WHB-FKB), slip op. at 1-4 (S.D. Miss. 26 Feb. 2014) (unpublished). In doing so, the court elaborated on its rationale for suppressing the evidence: the Trooper lacked credibility because, first, he could not have heard Rosales' vehicle driving on the rumble strips when it passed him at mile-marker 61; second, Rosales' driving on the fog line once without other evidence of unsafe or impaired driving was insufficient to justify a stop (was not careless driving); and third, the Trooper's actions in following the van did not support the reason provided for the stop by the Trooper - the court stated that, instead of stopping the van promptly, the Trooper stopped the van because of the Trooper's extensive experience and only after he followed Rosales for a considerable distance, noted the van's out-of-state license plate, and observed Rosales' ethnicity. (But regarding ethnicity, and as noted, the Trooper was unable to see into the van because its windows were tinted black.)
Pursuant to 18 U.S.C. § 3731 (), we have jurisdiction for this interlocutory appeal. It goes without saying that, generally, "[t]he government may not use evidence obtained in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures to prove a defendant's guilt at trial". United States v. Breeland, 53 F.3d 100, 102 (5th Cir. 1995).
In appeals concerning suppression of evidence, the district court's legal conclusions are reviewed de novo; its findings of fact, for clear error. E.g., United States v. Jenson, 462 F.3d 399, 403 (5th Cir. 2006) (citation omitted). "A finding of fact is clearly erroneous when[,] although there is evidence to support it, the reviewing court on the entire evidence is left with a firm and definite conviction that a mistake has been committed." United States v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007) (citation and quotation marks omitted).
As reflected in the clear-error standard, district courts are afforded substantial deference in their factual determinations, especially when, as here, they involve credibility assessments derived from live testimony. E.g., United States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014) (citation omitted). The court not only observed, but questioned, the Trooper during the hearing and, as stated in the denial of the Government's motion to reconsider, was "not convinced that the testimony of the [T]rooper was credible", referencing: the first claimed offense, when Rosales drove by the Trooper at mile-marker 61 (the court "doubt[ed]" the Trooper could hear the van driving on the rumble strips); the Trooper's making the stop based on careless driving; and the stop, in the court's view, being based, instead, on other factors, such as the van's out-of-state tag.
For the first time on appeal, Rosales asserts the rumble strips were inside the fog line; therefore, according to Rosales, the Trooper's testimony that he heardRosales drive on the strips does not mean Rosales necessarily crossed the fog line. We will not consider this fact-based issue, which was not raised in district court in support of Rosales' motion to suppress. E.g., United States v. Pope, 467 F.3d 912, 918-19 & n.20 (5th Cir. 2006).
For resolving this appeal, we need consider only the third claimed offense, which was recorded in, and verified by, the video while the Trooper was following the van, subsequent to having been beside it: the Trooper testified the van hit, or bumped, the fog line. In short, was this sufficient to justify the traffic stop? If it was, it is not necessary, as explained infra, to...
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