United States v. Altemio Gonzales , 342 F. App'x 446 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15045 AUGUST 5, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-00177-CR-2-UWC-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALTEMIO GONZALES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 5, 2009)
Before DUBINA, Chief Judge, TJOFLAT, Circuit Judge, and WALTER,*
District Judge.
*
Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
PER CURIAM:
Appellant Altemio Gonzales appeals his conviction for possession of
cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1).
He raises two issues on appeal. First, he argues that the district court violated his
rights under the Sixth Amendment’s Confrontation Clause when it accepted a
stipulation to the identity of the purported cocaine, to which his counsel had
agreed, but to which Gonzales himself objected. Second, he argues that the district
court erred in denying his motion to suppress the purported cocaine seized from the
tractor-trailer in which he was a passenger, because the combined traffic stop and
administrative inspection of the tractor-trailer was unreasonably long and
unsupported by reasonable suspicion.
I.
We review for harmless error the denial of a defendant’s right to cross-
examination under the Sixth Amendment’s Confrontation Clause. United States v.
Ndiaye, 434 F.3d 1270, 1286 (11th Cir. 2006) (citing Olden v. Kentucky, 488 U.S.
227, 232, 109 S. Ct. 480, 483, 102 L. Ed. 2d 513 (1988)). We review questions of
law de novo. See Ndiaye, 434 F.3d at 1280.
Defense counsel may waive the defendant’s right to cross-examine witnesses
2
by stipulating to the admission of evidence. United States v. Stephens, 609 F.2d
230, 232 (5th Cir. Jan. 1980). However, such a stipulation must satisfy a two-part
test:
[C]ounsel in a criminal case may waive his client’s Sixth Amendment
right of confrontation by stipulating to the admission of evidence, so
long as the defendant does not dissent from his attorney’s decision,
and so long as it can be said that the attorney’s decision was a
legitimate trial tactic or part of a prudent trial strategy.
Id. at 232-33.
The introduction of a chemical analysis of a purported narcotic is not
essential to conviction. United States v. Baggett, 954 F.2d 674, 677 (11th Cir.
1992) (citation omitted). Instead, the government may establish the identity of the
narcotic by circumstantial evidence, including “lay experience based on familiarity
through prior use, trading, or law enforcement.” Id. (internal quotation marks
omitted).
II.
The record demonstrates that Gonzales expressed his dissent from the
stipulation when he affirmatively refused to sign it. The district court at first
acknowledged that the stipulation required Gonzales’s signature, but ultimately
decided to accept the stipulation without Gonzales’s consent because of the
government’s reliance upon it and the late notification of the objection. Because
3
our case law does not make an exception to Stephens for inconvenience to the
government, we conclude that the district court erred in accepting the stipulation.
Nevertheless, we are persuaded that the arresting officer’s testimony at trial
provided sufficient grounds for a reasonable jury to conclude that the substance
was cocaine. Accordingly, we hold that the Stephens error was harmless.
III.
The denial of a motion to suppress is a mixed question of law and fact.
United States v. Steed, 548 F.3d 961, 966 (11th Cir. 2008). We review the district
court’s findings of fact for clear error, construing those facts in the light most
favorable to the prevailing party, and we review the application of law to those
facts de novo. Id.
The Alabama Code provides for the inspection of commercial motor
vehicles and their records:
Any records required to be maintained by operators of commercial
motor vehicles pursuant to state or federal laws or regulations shall be
open to inspection during the normal business hours of a carrier by
members designated by the director. The inspection may be made
without a warrant. Members of the department designated by the
director may also go on the property of an operator of a commercial
motor vehicle to conduct inspections of facilities and records to ensure
compliance with applicable state and federal laws and regulations
governing commercial motor vehicle operations.
Ala. Code § 32-9A-3 (1998).
4
An officer may only prolong a traffic stop under “special circumstances,”
such as to investigate the driver’s license and registration, to run a criminal history
check, or where there is “articulable suspicion of other illegal activity.” United
States v. Boyce, 351 F.3d 1102, 1106 (11th Cir. 2003) (citation omitted). Whereas
an investigatory detention requires only reasonable suspicion, a seizure must be
supported by probable cause. United States v. Virden, 488 F.3d 1317, 1321 (11th
Cir. 2007). Whether an investigatory stop has lasted so long as to require probable
cause depends on the totality of the circumstances. Courson v. McMillian, 939
F.2d 1479, 1492 & n.21 (11th Cir. 1991).
A warrantless search and seizure of a vehicle is permissible when the police
have probable cause to believe it contains contraband. Virden, 488 F.3d at 1321.
In a case involving a dog sniff, probable cause arises when a drug-trained canine
alerts to the presence of drugs. United States v. Banks, 3 F.3d 399, 402 (11th Cir.
1993) (per curiam).
IV.
The arresting officer testified that, over the course of his administrative
inspection of the tractor-trailer, he developed reasonable suspicion of illegal
activity based on the “overwhelming” odor of at least nine new air fresheners in the
cabin, the extreme nervousness displayed by Gonzales and the driver, and the
5
inconsistencies among their log books, their statements to him, and the letter
Gonzales showed him. We conclude that the district court did not clearly err in
finding that these facts amounted to reasonable suspicion. In addition,
approximately 15-20 minutes of the stop was spent requesting and waiting for the
canine unit to arrive, while the remainder of the 2-hour detention was spent
conducting an administrative inspection that is exempted by state statute from the
warrant requirement.1 Under the totality of the circumstances, the stop was not
unreasonably long. Finally, the drug dog’s positive alert gave the officer probable
cause to conduct the search. The district court did not err in denying Gonzales’s
motion to suppress the evidence.
For the foregoing reasons, we affirm Gonzales’s conviction.
AFFIRMED.
1
Because Gonzales did not argue in his brief that § 32-9A-3 is facially unconstitutional,
he has abandoned the issue. See United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (per
curiam).
6