United States v. Leyva-Serrano ( 1997 )


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  •                                                                               F I L E D
    United States Court of Appeals
    Tenth Circuit
    NOV 3 1997
    PUBLISH
    PATRICK FISHER
    Clerk
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    v.
    No. 97-2051
    MANUEL LEYVA-SERRANO,
    Defendant-Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW MEXICO
    (D.C. No. CR-96-467-MV)
    Charles L. Barth, Assistant United States Attorney (John J. Kelly, United States Attorney,
    with him on the brief), Albuquerque, New Mexico, for the Appellant.
    Joe M. Romero, Jr., Romero & Associates, P.A., Albuquerque, New Mexico, for the
    Appellee.
    Before BRISCOE, Circuit Judge, LUCERO, Circuit Judge, and McWILLIAMS, Senior
    Circuit Judge.
    McWILLIAMS, Senior Circuit Judge.
    In a one count indictment filed on August 7, 1996, Manuel Leyva-Serrano was
    charged with the possession of 50 grams of cocaine with an intent to distribute in
    violation of 
    21 U.S.C. §§ 841
    (a)(1), 841(b)(1)(A) and 
    18 U.S.C. § 2
    . Pursuant to Fed. R.
    Crim. P. 12(b)(3), on January 7, 1997, Serrano filed a motion to suppress the use at trial
    of the crack cocaine seized by the police in a search of his automobile, contending that
    the “stop and seizure” was unlawful. The government filed a response to the motion to
    suppress, contending that, under the circumstances, the “stop and seizure” was lawful.
    An evidentiary hearing was held on the issues presented by the motion to suppress
    and response thereto on January 21, 1997, at which time Desi Garcia, a police officer for
    the City of Albuquerque who effected the “stop” and thereafter made the “search and
    seizure,” testified at length. Serrano, a Cuban national expelled from Cuba who had been
    living in Albuquerque since 1993, also testified briefly. At the conclusion of the hearing,
    the district court, after argument of counsel, granted Serrano’s motion to suppress,
    holding that the “stop” was not supported by reasonable, articulable suspicion as required
    by Terry v. Ohio, 
    392 U.S. 1
     (1968) and, alternatively, that the ensuing search of
    Serrano’s automobile and the seizure of the 50 grams of crack cocaine were improper
    since the “arresting police officer did not believe he was in any danger.” The government
    then filed a timely notice of appeal pursuant to 
    18 U.S.C. § 3731
    . We reverse. This case
    turns on the facts and circumstances leading up to the stop and seizure, and they will be
    set forth in some detail.
    In August, 1995, Garcia, a detective in the Albuquerque Police Department
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    assigned to the homicide unit, was investigating two unsolved murders that had occurred
    in Albuquerque in July, 1995. One involved Cara Garner, a prostitute, who was shot and
    killed behind the Trade Winds Motel in Albuquerque. The second involved an Avelio
    Guzman, who was stabbed in the neck and then shot and killed. During the course of his
    investigation, Detective Garcia was advised by other members of the Albuquerque Police
    Department that Tracy Bankhead perhaps knew the person, or persons, who might be
    involved in these two homicides, or who, at least, might know something about the
    murders. Accordingly, Detective Garcia arranged an interview with Bankhead at police
    headquarters on August 31, 1995.
    During the August 31st interview, Detective Garcia asked Bankhead questions
    about the Garner homicide, although he did not use the name “Garner,” since Bankhead
    did not recognize that name, as such. Rather, Detective Garcia asked Bankhead about a
    prostitute who had been shot and killed behind the Trade Winds Motel in Albuquerque.
    In the interview, Bankhead stated that on one particular evening, a month or so prior to
    the interview, she and Serrano, and two others, had gone to the Trade Winds Motel to
    look for a prostitute who owed Serrano, and the others, money for narcotics. She said
    that Serrano and one of the others were armed. Bankhead also said that they were unable
    to locate the prostitute, and that the four of them returned to her residence. Bankhead
    went on to say that shortly thereafter the three men left her residence. The next day,
    according to Bankhead, she heard news reports that a prostitute had been shot to death
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    behind the Trade Winds Motel.
    As concerns the murder of Guzman, also a Cuban national, investigators were of
    the opinion that the person killing Guzman had, himself, received serious knife wounds in
    the course of the homicide. Guzman apparently died more-or-less on the spot, and a trail
    of blood lead away, and a long way, from the scene of the homicide. When interviewed
    by Detective Garcia, Bankhead stated that Serrano had received some sort of a
    “laceration” around the date of the Guzman homicide, although she thought it was
    slightly prior to the date of the murder. Bankhead also provided Detective Garcia with
    the addresses, phone numbers and pager numbers of Serrano and the others who had been
    with her at the Trade Winds Motel, and stated that Serrano could be located in the 400
    block of Virginia SE in Albuquerque.
    Based on the information given him by Bankhead, Detective Garcia considered
    Serrano a “suspect” in both the Garner and Guzman homicides. After the interview with
    Bankhead, Detective Garcia, on the same day, drove by the address on Virginia SE to
    look for an automobile owned by Serrano, which Bankhead had described as a red
    Pontiac convertible. Detective Garcia espied such a vehicle, and, after driving around the
    block, saw the vehicle pulling away from the curb. Detective Garcia followed in his
    unmarked police vehicle. As Detective Garcia followed, he noted the driver of the red
    Pontiac convertible “looking” at him in his side-view and rear-view mirrors. The driver
    of the red Pontiac did not “accelerate,” although he did, at one point, make a sharp right-
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    hand turn and shortly thereafter made a U-turn. About this time, Serrano was stopped by
    an officer in a marked police car who had been called in by Detective Garcia to make the
    stop.
    After the driver of the red Pontiac convertible was stopped, the driver being
    Serrano, the uniformed officer ordered him to step out of his vehicle, which he did. The
    arresting officer, after “patting” down Serrano, and finding no contraband, ordered him to
    the marked police vehicle. Simultaneously, Garcia went to the passenger door of the red
    Pontiac convertible to look for firearms. Putting his hand under the passenger’s seat,
    Garcia found what he thought was a .25 caliber or .380 caliber handgun wrapped in some
    sort of a plastic wrap. Bringing the object out from under the seat, it proved not to be a
    firearm, but crack cocaine wrapped in some sort of plastic. Detective Garcia testified that
    his was a “protective search” of the red Pontiac convertible, because he was concerned,
    inter alia, that if Serrano declined to converse with him, and they returned him to his
    vehicle, that he might then “open fire.” So much for the “facts” as developed at the
    evidentiary hearing on Serrano’s motion to suppress.
    In United States v. Foster, 
    100 F.3d 846
    , 849 (10th Cir. 1996) we spoke of our
    scope of review of a district court’s order granting a pre-trial motion to suppress as
    follows:
    When reviewing an order granting a motion to
    suppress, this court accepts the trial court’s factual findings
    unless clearly erroneous, and views the evidence in the light
    most favorable to the district court’s finding. United States v.
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    Little, 
    18 F.3d 1499
    , 1503 (10th Cir. 1994) (en banc).
    Moreover, at a hearing on a motion to suppress, “the
    credibility of the witnesses and the weight given to the
    evidence, as well as the inferences and conclusions drawn
    therefrom, are matters for the trial judge.” United States v.
    Fernandez, 
    18 F.3d 874
    , 876 (10th Cir. 1994). Nevertheless,
    we review de novo the ultimate determination of the
    reasonableness of a search under the Fourth Amendment.
    United States v. Callwood, 
    66 F.3d 1110
    , 1112 (10th Cir.
    1995).
    As indicated, at the hearing on the motion to suppress there were only two
    witnesses, Detective Garcia and Serrano, the defendant. Detective Garcia testified in
    considerable detail concerning his investigation into the deaths of Garner and Guzman
    and the events leading up to the “stop” of Serrano and the ensuing “seizure” of the crack
    cocaine. Serrano’s testimony was brief. He testified as to where he was going at the time
    of his stop, and to the fact that he exited his vehicle upon an order from the policeman in
    the marked police vehicle, and was searched for weapons.1 The district judge stated that,
    although she believed Detective Garcia’s testimony to be “credible,” she was nonetheless
    of the view that his “stop and seizure” was not based on a reasonable, articulable
    suspicion. Under such circumstances we, too, accept Detective Garcia’s testimony as
    “credible” and our problem is whether such equates with a reasonable, articulable
    suspicion. We believe it does.
    1
    Serrano also testified that, as of that time, he had never been convicted of a
    felony, and that, after being interviewed, he was released from custody two days later and
    was not charged with the drug charge in the present case until about a year later, and was
    never charged with the murders of Garner and Guzman.
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    The legality of Detective Garcia’s “stop” of Serrano’s vehicle, with the aid, of
    course, of his fellow officer driving a marked police vehicle with lights and sirens, is
    governed by the principles of Terry v. Ohio, 
    392 U.S. 1
    , 22 (1968), where the Supreme
    Court spoke as follows:
    Applying these principles to this case, we consider first the
    nature and extent of the governmental interest involved. One
    general interest is of course that of effective crime prevention
    and detection; it is this interest which underlies the
    recognition that a police officer may in appropriate
    circumstances and in an appropriate manner approach a
    person for purposes of investigating possibly criminal
    behavior even though there is no probable cause to make an
    arrest. It was this legitimate investigative function Officer
    McFadden was discharging when he decided to approach
    petitioner and his companions.
    We recognize that Terry was concerned with police who were observing what they
    thought was an on-going crime committed in front of their own eyes, whereas we are here
    concerned with Detective Garcia investigating a so-called “past crime.” In this regard,
    the Supreme Court in United States v. Hensley, 
    469 U.S. 221
    , 229 (1985) spoke as
    follows:
    Despite these differences, where police have been
    unable to locate a person suspected of involvement in a past
    crime, the ability to briefly stop that person, ask questions, or
    check identification in the absence of probable cause
    promotes the strong government interest in solving crimes and
    bringing offenders to justice. Restraining police action until
    after probable cause is obtained would not only hinder the
    investigation, but might also enable the suspect to flee in the
    interim and to remain at large. Particularly in the context of
    felonies or crimes involving a threat to public safety, it is in
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    the public interest that the crime be solved and the suspect
    detained as promptly as possible. The law enforcement
    interests at stake in these circumstances outweigh the
    individual’s interest to be free of a stop and detention that is
    no more extensive than permissible in the investigation of
    imminent or ongoing crimes.
    See also United States v. Douglas, 
    36 F.3d 1106
     (10th Cir. 1994) (officer’s stop of an
    automobile because the passenger fit the description of a person suspected in a past armed
    robbery deemed reasonable).
    In Terry the Supreme Cout held that not only was the “stop” lawful, but that the
    ensuing “frisk” wherein a weapon was found was also lawful. We recognize that in the
    instant case the “frisk” of Serrano revealed no contraband, but that the more-or-less
    contemporaneous search of his vehicle for a firearm revealed the 50 grams of crack
    cocaine. The legality of such a search and seizure is largely controlled by Michigan v.
    Long, 
    463 U.S. 1032
     (1983).
    In Michigan, the Supreme Court stated that a protective search for firearms of the
    passenger compartment of a vehicle which a suspect had been driving was “reasonable”
    under the principles enumerated in Terry v. Ohio, 
    supra,
     where the police had a
    “reasonable belief” that the suspect posed a danger. In this latter connection, Detective
    Garcia had been advised by Bankhead that Serrano carried a gun, which, of course, could
    be either on his person or in his vehicle. Detective Garcia, in our view, had a “reasonable
    belief” that Serrano posed a danger which justified a search of the interior of Serrano’s
    vehicle for firearms. In Michigan, as in our case, the search of the vehicle for firearms
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    disclosed drugs. In this general connection, the Supreme Court in Michigan spoke as
    follows:
    These principles compel our conclusion that the search
    of the passenger compartment of an automobile, limited to
    those areas in which a weapon may be placed or hidden, is
    permissible if the police officer possesses a reasonable belief
    based on “specific and articulable facts which, taken together
    with the rational inferences from those facts, reasonably
    warrant” the officer in believing that the suspect is dangerous
    and the suspect may gain immediate control of weapons. See
    Terry, 
    392 U.S., at 21
    . “[T]he issue is whether a reasonably
    prudent man in the circumstances would be warranted in the
    belief that his safety or that of others was in danger.” 
    Id., at 27
    . If a suspect is “dangerous,” he is no less dangerous
    simply because he is not arrested. If, while conducting a
    legitimate Terry search of the interior of the automobile, the
    officer should, as here, discover contraband other than
    weapons, he clearly cannot be required to ignore the
    contraband, and the Fourth Amendment does not require its
    suppression in such circumstances. Coolidge v. New
    Hampshire, 
    403 U.S. 443
    , 465, 
    91 S.Ct. 2022
    , 2037, 
    29 L.Ed. 2d 564
     (1971); Michigan v. Tyler, 
    436 U.S. 499
    , 509, 
    98 S.Ct. 1942
    , 1949, 
    56 L.Ed. 2d 486
     (1978); Texas v. Brown, --- U.S.
    ---,---,---, 
    103 S.Ct. 1535
    , 1541, 1544, 
    75 L.Ed. 2d 502
    (1983).
    ********
    The circumstances of this case clearly justified
    Deputies Howell and Lewis in their reasonable belief that
    Long posed a danger if he were permitted to reenter his
    vehicle . . . .”
    Michigan, 
    463 U.S. at 1049-1050
    ; see also United States v. Pappas, 
    735 F.2d 1232
    , 1234
    (10th Cir. 1984) (protective search of compartment in defendant’s car was reasonable
    under principles laid down in Terry and reiterated in Michigan).
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    In sum, under the authorities above cited, Detective Garcia had a reasonable
    suspicion that Serrano had been involved in, or knew something about, the murders of
    Garner and Guzman, and, such being the case, neither his stop of Serrano’s vehicle nor
    the protective search of Serrano’s vehicle which resulted in the seizure of the crack
    cocaine hidden under the passenger’s seat was unlawful. The district court erred in
    granting the motion to suppress.
    Judgment reversed and case remanded with directions that the district court vacate
    its order granting Serrano’s motion to suppress, with further proceedings to be consistent
    with the views herein expressed.
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