US v. Hernandez-Mendoza

• Decision Date: 06 April 2010
• Docket Number: No. 08-3898,08-3899.,08-3898
• Citation: 600 F.3d 971
• Parties: UNITED STATES of America, Appellee, v. Jese HERNANDEZ-MENDOZA, Appellant. United States of America, Appellee, v. Eddie Martinez, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

600 F.3d 971

UNITED STATES of America, Appellee, v. Jese HERNANDEZ-MENDOZA, Appellant.

United States of America, Appellee, v. Eddie Martinez, Appellant.

Nos. 08-3898, 08-3899.

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2009.

Filed: April 6, 2010.

COPYRIGHT MATERIAL OMITTED

Stanton A. Anker, Rapid City, SD, argued, for Appellant.

Mark A. Vargo, I, Asst. U.S. Atty., Rapid City, SD, argued, for Appellee.

Before COLLOTON, BEAM, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

Jese Hernandez-Mendoza and Eddie Martinez appeal from a judgment of conviction for one count of conspiracy to distribute methamphetamine, one count of possession with intent to distribute methamphetamine, and one count of possession with intent to distribute cocaine. The district court¹ denied the appellants' motions for judgment of acquittal and sentenced each to 121 months' imprisonment and five years of supervised release. We affirm.

I.

On February 29, 2008, Hernandez-Mendoza and Martinez were traveling east on Interstate 90 through Wyoming when Wyoming Highway Patrol Trooper Tim Boumeister stopped their vehicle for speeding. After Boumeister issued a warning citation to Hernandez-Mendoza, the driver, the trooper obtained Hernandez-Mendoza's consent to ask additional questions and search the vehicle. Boumeister also called Captain Jeffrey Hodge, a deputy sheriff with the Crook County, Wyoming, Sheriff's Office to request his assistance in performing a canine sniff of the vehicle.

Hodge arrived on the scene and obtained consent from Hernandez-Mendoza for a drug dog to enter the vehicle. The dog alerted to the presence of drugs in the area near the dashboard. Boumeister and Hodge then searched the vehicle on the roadside for approximately one hour, but found no drugs. Law enforcement officers then took the vehicle to a Wyoming Highway Patrol garage for further examination. Approximately three hours after the initial stop, having located no drugs hidden in the vehicle, a Wyoming Highway Patrol Lieutenant concluded that there were no drugs to be found, and ordered the vehicle released.

Hodge disagreed with the Lieutenant's decision and contacted South Dakota Highway Patrol Trooper Brian Swets. Hodge described the vehicle and told Swets that the drug dog had alerted to the vehicle. He also cited several factors about the vehicle that led Hodge to believe that the travelers were involved in illegal activity. Hodge notified Swets that the vehicle was heading east on Interstate 90 toward South Dakota.

Swets later spotted the appellants' vehicle and stopped it for speeding. During the stop, Swets deployed his drug dog, and the dog alerted between the front and rear passenger side doors. Swets then began to search the vehicle. In the rear hatchback area, he noticed non-factory carpet, a shallow storage compartment, and loose trim. After removing the trim, Swets was able to shine his flashlight through holes in the storage compartment, and he saw several food storage containers hidden below the metal floor of the compartment. Law enforcement officers seized the containers and found methamphetamine and cocaine therein.

Trooper Nicholas Allen then arrived on the scene to transport the appellants to the South Dakota Highway Patrol Office. Unbeknownst to the appellants, Allen's video recorder was recording the entire time they were in Allen's vehicle. At one point, Allen left the vehicle, and the equipment recorded a conversation in Spanish between Hernandez-Mendoza and Martinez.

Once the appellants arrived at the patrol office, Agent Chad Evans of the South Dakota Division of Criminal Investigation administered to Martinez the warnings based on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), obtained a waiver of rights, and questioned Martinez. Martinez made incriminating statements.

After the grand jury returned an indictment, both appellants moved to suppress physical evidence seized as a result of Trooper Swets's search and statements recorded in Trooper Allen's vehicle. Martinez also moved to suppress his statements to Agent Evans. After a hearing, a magistrate judge recommended that the physical evidence found in the appellants' vehicle should be suppressed, but that the recorded conversation in the back of Trooper Allen's vehicle and Martinez's statements to Agent Evans should be admissible. On de novo review, the district court rejected the recommendation to suppress the physical evidence, and denied the relevant portions of the motions to suppress.

A jury found the appellants guilty on all three counts of the indictment. As relevant to this appeal, the district court overruled appellants' objection to a final jury instruction on deliberate ignorance. The court also denied the appellants' motions for judgment of acquittal, ruling that the evidence was sufficient to support the verdicts.

II.

Appellants argue that the district court erred in denying their motions to suppress physical evidence obtained as the result of Trooper Swets's search of the vehicle. Martinez also contends that the district court erred in denying his motion to suppress the conversation recorded in the back of Trooper Allen's car and his statements to Agent Evans. We review the district court's factual findings for clear error, and we review de novo the district court's legal conclusions on a motion to suppress. United States v. McGlothen, 556 F.3d 698, 701 (8th Cir.2009).

A.

Appellants first contend that although the South Dakota traffic stop for speeding was lawful at its inception, the seizure later became unreasonable, in violation of the Fourth Amendment, because Trooper Swets did not have reasonable suspicion to investigate drug trafficking activity. A lawful traffic stop "can become unlawful if it is prolonged beyond the time reasonably required to complete" the mission of the stop. Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Appellants argue that this seizure was unreasonably prolonged.

After a valid traffic stop, an "officer may detain the offending motorist while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation." United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir.1999). If an officer develops reasonable suspicion of the existence of other criminal activity during the stop, then "the officer may expand the scope of the encounter to address that suspicion." United States v. Peralez, 526 F.3d 1115, 1120 (8th Cir.2008). If an officer develops probable cause that contraband may be found in the vehicle, then it is reasonable for the officer to search the vehicle without a warrant. United States v. Donnelly, 475 F.3d 946, 954 (8th Cir.2007).

We conclude that Trooper Swets did not violate the Fourth Amendment rights of the appellants by extending the traffic stop to search the vehicle, because he had probable cause to believe there was contraband in the vehicle. But for the Wyoming traffic stop earlier in the day, this would be a simple case. Swets was accompanied at the scene by a drug dog, and his deployment of the dog to sniff the exterior of the vehicle, only six minutes into the encounter, did not impermissibly expand the scope of the traffic stop. See Caballes, 543 U.S. at 409, 125 S.Ct. 834; United States v. Rivera, 570 F.3d 1009, 1014 (8th Cir.2009). If the traffic stop by Swets had been the first encounter between appellants and law enforcement on that day, then there would be no doubt that the dog's alert established sufficient probable cause to justify a search for contraband in the vehicle. Rivera, 570 F.3d at 1012.

Appellants contend, however, that the information from which Trooper Swets discerned probable cause is the same information that prompted the fruitless search of their vehicle in Wyoming. They argue that Swets's dog alert simply replicated the dog alert in Wyoming, and that Swets's other information was conveyed to him by Captain Hodge in Wyoming based on the investigation at the earlier traffic stop. Appellants urge that when officers searched the vehicle for nearly three hours in Wyoming without finding drugs, the probable cause to search dissipated, such that Swets could not renew the search based on essentially identical information. See United States v. Watts, 7 F.3d 122, 126 (8th Cir.1993) ("An investigative stop must cease once reasonable suspicion or probable cause dissipates.").

The government responds that Trooper Swets developed new information that established probable cause independent of the information gathered in Wyoming, but we deem it unnecessary to resolve that point. Even if we accept that Swets acted based in part on pre-existing probable cause developed in Wyoming, the search was not unreasonable.

The stop by Trooper Swets was based on a traffic violation, so we need not be concerned with whether the probable cause from Wyoming would justify a second seizure. Cf. United States v. Garcia, 23 F.3d 1331, 1334-35 & n. 2 (8th Cir. 1994); United States v. Peters, 10 F.3d 1517, 1522-23 (10th Cir.1993). The seizure here was reasonable, and we must consider whether Swets had probable cause to search despite the previous investigation. That a law enforcement supervisor in Wyoming determined to cease searching and to release the vehicle is not dispositive, for whether probable cause exists is a question of law to be determined objectively. See Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The Wyoming lieutenant decided that the vehicle did not contain drugs; Captain Hodge disagreed. The lieutenant outranked Hodge, but law enforcement's pecking order does not make the supervisor's subjective opinion controlling under the Fourth Amendment. In South Dakota, Trooper Swets observed the hidden compartment and food storage containers after about ten minutes of searching the vehicle. If there had been...