United States v. Cortez ( 2023 )

Case: 21-50904 Document: 00516903587 Page: 1 Date Filed: 09/21/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 21-50904 September 21, 2023
consolidated with
Lyle W. Cayce
No. 21-50908
Clerk
United States of America,
Plaintiff—Appellee,
versus
Martin Blas Cortez,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 7:16-CR-1, 7:20-CR-227-1
Before Stewart, Dennis, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge: *
In July 2020, Odessa Police received a welfare call about an individual,
Defendant Martin Cortez, seemingly asleep in a vehicle in a Denny’s
restaurant parking lot. This call triggered an extended traffic stop of Cortez,
culminating a search of the vehicle which revealed two bullets. Cortez, who
was indicted on one count of being a felon in possession of ammunition in
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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violation of 18 U.S.C. § 922(g)(1), filed a motion to suppress challenging this
search on the basis that the officers had unlawfully prolonged his detention
without reasonable suspicion. The district court denied this motion and,
following a bench trial, convicted Cortez. Cortez appeals the denial of his
motion to suppress. For the reasons given below, we AFFIRM.
I.
The morning of July 18, 2020, a Saturday, Odessa Police Corporal
Taylor Box was dispatched to a Denny’s restaurant parking lot to conduct a
welfare check on a person passed out in a vehicle. Box arrived at 9:04 a.m.
and encountered Defendant Martin Cortez asleep in the driver’s seat of a
black Chevy pickup truck. The windows were darkly tinted—to the point
where it affected Box’s ability to see into the car—and, as Box testified, not
in compliance with Texas law. According to Box, when he first arrived at the
Denny’s, he suspected that he could be dealing with an intoxicated subject
who was trying to sleep it off.
Box approached the vehicle and knocked on the driver’s side window,
waking Cortez up. Box then asked Cortez to roll down his window, but Cortez
refused; instead, he rolled the window down slightly, just enough to pass
through a Texas identification card.
After taking the identification card, Box requested that Cortez step
out of the vehicle. Again, Cortez refused. At this point, Box requested
assistance. A few minutes later, Corporal Reed Jones responded as backup,
along with other officers.
For almost ten more minutes, Cortez remained in the vehicle despite
the officers’ repeated orders to exit. In the interim, the officers ran a warrant
check on Cortez, and by 9:13 a.m., Box had confirmed that Cortez had no
outstanding warrants. Although it is unclear exactly when, the officers would
later learn, and Cortez confirm, that he had a history of drug possession
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charges, had state and federal firearms offenses in his record, and was on
active supervised release at the time of this stop.
When an officer asked Cortez about his identification, Cortez did not
have a driver’s license, only an identification card. According to Cortez, he
was in the process of obtaining a driver’s license, but his application was
complicated by the fact that he had several unpaid tickets. He admitted to
driving without a license, saying that this was his only way to get to work.
Because Cortez continued to refuse to leave the truck, the officers
sought permission from a supervisor to break the truck’s driver’s side
window and physically remove Cortez. That request was denied. Finally, at
9:18 a.m., almost fifteen minutes after Box first approached, Cortez complied
and exited the vehicle. The officers conducted a protective pat down and
moved Cortez to the side of the truck.
Cortez told the officers he had stayed late at a friend’s house the night
before and had decided to rest at the Denny’s parking lot rather than drive
home tired. Box stated that he intended to check if Cortez was intoxicated,
as individuals in this situation (sleeping in a parking lot early on a Saturday
morning) are often trying to sober up from the night before. Although Cortez
protested that he neither drank nor did drugs, Box pointed out that Cortez
had a history of drug possession charges. Cortez admitted that was true, but
nevertheless maintained that he was currently sober. When asked by another
officer if he was “out of the game now,” Cortez said that while he had, at
some unspecified time in the past, failed a few drug tests and relapsed, he
tried to get back on track. In response to further questions from the officers,
Cortez admitted that he had been addicted to crack cocaine and previously
used methamphetamine. Cortez, after being asked how long it had been since
he had gotten clean, indicated that it had been “months” since he last used
drugs.
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Following these disclosures, an officer asked Cortez if there was
anything illegal in the vehicle and requested his consent to search the truck.
Cortez replied that there was nothing illegal in the truck and refused consent
to the search. Cortez had prior federal and state gun felony convictions.
Specifically, in 2016, Cortez had been convicted of being a felon in possession
of a firearm and sentenced to 21-months’ imprisonment and three years of
supervised release. Although Cortez’s supervised release commenced on
May 8, 2017, Cortez was in state custody from May 8, 2017 until October 29,
2018 in connection with a state conviction for possession of a controlled
substance with intent to deliver and unlawful possession of a firearm by a
felon. Cortez’s federal supervised release was not running for the over 17
months he was in state custody. 18 U.S.C. § 3624(e); United States v. Molina-
Gazca, 571 F.3d 470, 474 (5th Cir. 2009). Accordingly, Cortez’s supervised
release end date was October 28, 2021, meaning that he was on supervised
release when the instant offense occurred on July 18, 2020. The officers
continued to press for consent and suggested that Cortez’s refusal could be
a violation of his terms of supervised release.
At 9:28 a.m. Box informed Cortez that he was not going to be arrested
for the offense of driving without a license unless they witnessed him driving
off from the parking lot. Similarly, an officer indicated that while the dark tint
on the truck’s windows violated Texas law, Cortez would not be arrested at
this time
At 9:29 a.m., however, the officers realized that the registration sticker
on the truck did not match the license plate. An officer ran the plates and
discovered that the vehicle was reported as stolen. Believing that Cortez was
driving a stolen vehicle, the officers handcuffed him. Cortez told the officers
that the truck had been stolen from his family and that they had filed a police
report for the theft, but that the truck had since been recovered. Cortez told
the officers that he had been instructed to leave the registration sticker and
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plates on the truck until he received replacements. By 9:41 a.m., the officers
confirmed that Cortez’s mother was the owner of the vehicle, created an
information report, and alerted Ward County to follow-up on the registration
sticker.
Next, Box returned turned to the still-active investigation into
whether Cortez was intoxicated. Within a few minutes, no later than 9:47
a.m., Box finished conducting field sobriety tests. Box observed no signs of
intoxication.
Following Box’s conclusion that Cortez was not intoxicated, Cortez
remained handcuffed on the curb for just over ten minutes. At 9:59 a.m., Box
moved Cortez from the curb into the back of a police car, explaining that he
wanted to get Cortez out of the sun and into the air conditioning. When
Cortez asked why he was still being detained, Box informed him that the
officers were still looking into the registration sticker on the truck and that he
had not complied with his parole.
The other reason for the detention, Box told Cortez at 10:04 a.m., was
that the officers were “calling canine” to conduct an open-air sniff of the
truck. Brandon Upchurch, a K-9 handler with Ector County ISD Police who
conducted the sniff test, testified that he was called sometime around 10:00
a.m. According to Box, the officers suspected that there were drugs in the
vehicle because Cortez kept refusing to consent to a search and had a history
of being involved with narcotics. The canine sniff occurred at 10:12 a.m., and
the dog alerted to the presence of narcotics on the driver’s side door.
The officers then searched the vehicle. Although the search revealed
no drugs, the officers discovered one .38 special caliber bullet and one .22
caliber bullet located on the floorboard of the driver’s seat under a towel.
Cortez was arrested and ultimately indicted on one count of being a
felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1).
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Additionally, Cortez’s probation officer filed a petition to revoke Cortez’s
supervised release, alleging that Cortez violated the condition prohibiting
him from committing a new offense.
Cortez filed a motion to suppress, arguing that the officers lacked
consent to search the vehicle and that they did not have reasonable suspicion
to prolong his detention to allow time for the K-9 unit to arrive. An
evidentiary hearing was held in connection with this motion, at which Box,
Jones, and Upchurch testified and video evidence from the officers’
bodycams was introduced. The district court denied the motion, finding that
the officers had reasonable suspicion to extend Cortez’s detention to wait for
the dog.
Thereafter, the district court conducted a bench trial at which the
parties agreed that the ruling on the motion to suppress was viable for appeal.
In a signed and admitted stipulation, the parties agreed to the existence of
facts sufficient to establish a violation of § 922(g)(1) if the prolonged
detention was legal. Cortez was convicted and sentenced to 30 months of
imprisonment followed by three years of supervised release. Furthermore,
the district court revoked Cortez’s supervised release and sentenced him to
18 months of imprisonment with no additional term of supervision. Cortez
timely filed notices of appeal in each case, and the cases have now been
consolidated on appeal.
II.
Cortez challenges the denial of his motion to suppress, arguing that
the officers detained him without reasonable suspicion beginning at 9:47
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a.m., when the officers concluded their investigation into whether he was
intoxicated.1
When reviewing a district court’s ruling on a motion to suppress, we
review its conclusions of law, including the determination as to the existence
of reasonable suspicion, de novo and its findings of fact for clear error. United
States v. Freeman, 914 F.3d 337, 341 (5th Cir. 2019). A factual finding is
“clearly erroneous only if a review of the record leaves this Court with a
definite and firm conviction that a mistake has been committed.” United
States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009) (internal quotation marks
and citation omitted). And “[t]he clearly erroneous standard is particularly
deferential where denial of the suppression motion is based on live oral
testimony because the judge had the opportunity to observe the demeanor of
the witness.” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010)
(internal quotation marks and citation omitted) (cleaned up). Additionally,
we “review the evidence in the light most favorable to the prevailing party,”
here, the Government. United States v. Santiago, 410 F.3d 193, 197 (5th Cir.
2005).
The Fourth Amendment protects individuals against “unreasonable
searches and seizures.” U.S. CONST. amend. IV. “The stopping of a vehicle
and detention of its occupants constitutes a ‘seizure’ under the Fourth
Amendment.” United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004)
(en banc). The legality of a traffic stop is analyzed under the standard first
articulated by the Supreme Court in Terry v. Ohio, 329 U.S. 1 (1968). United
States v. Smith, 952 F.3d 642, 647 (5th Cir. 2020). Under Terry, we “first
examine whether the officer’s action was justified at its inception, and then
1
Cortez concedes that reasonable suspicion supporting the stop existed before this
time, and the Government does not contest that this is the relevant time period for
purposes of this appeal.
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inquire whether the officer’s subsequent actions were reasonably related in
scope to the circumstances that justified the stop.” United States v. Cavitt,
550 F.3d 430, 435–36 (5th Cir. 2008) (internal quotation marks and citation
omitted).
In the case of traffic stops, “[a]uthority for the seizure ends when
tasks tied to the traffic infraction are—or reasonably should have been—
completed.” Rodriguez v. United States, 575 U.S. 348, 354 (2015). However,
“additional investigation unrelated to the safe and responsible operation of
the vehicle” is permissible only “if that investigation does not lengthen the
driver’s detention or is supported by reasonable suspicion of additional
criminal activity.” United States v. Reyes, 963 F.3d 482, 487 (5th Cir. 2020),
cert. denied, 141 S. Ct. 861 (2020)). Thus, “if the officer develops reasonable
suspicion of such activity in the course of the stop and before the initial
purpose of the stop has been fulfilled, then the detention may continue until
the new reasonable suspicion has been dispelled or confirmed.” Id. at 487–
88 (internal quotation marks and citation omitted).2
To assess reasonable suspicion, courts “conduct[] a fact-intensive,
totality-of-the-circumstances inquiry.” United States v. Rodriguez, 564 F.3d
735, 741 (5th Cir. 2009). Requiring “more than merely an unparticularized
hunch,” id. (internal quotation marks and citation omitted), “[r]easonable
suspicion exists when the detaining officer can point to specific and
articulable facts that, when taken together with rational inferences from those
facts, reasonably warrant the . . . seizure.” United States v. Pack, 612 F.3d 341,
352 (5th Cir. 2010) (internal quotation marks and citation omitted). In
2
Here, although Cortez was in his parked car at the time of the initial police
encounter, both parties and the district court treat his detention as a traffic stop,
presumably because Cortez was initially suspected of driving while intoxicated and the
officers later developed probable cause that he had driven without a license.
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considering the totality of the circumstances, “[f]actors that ordinarily
constitute innocent behavior may provide a composite picture sufficient to
raise reasonable suspicion in the minds of experienced officers.” United
States v. Cervantes, 797 F.3d 326, 329 (5th Cir. 2015). In sum, “[r]easonable
suspicion is a low threshold, requiring only a minimal level of objective
justification.” United States v. Alvarez, 40 F.4th 339, 346 (5th Cir. 2022)
(internal quotation marks and citation omitted).
Cortez does not dispute that the officers reasonably pursued many
points of suspicion throughout the first forty-three minutes of the stop,
including Cortez’s illegally tinted windows, the possibility of trespass, his
suspected intoxication, the false registration stickers on his truck, the report
listing the vehicle as stolen, his lack of a valid driver’s license, a potential
supervised release violation, his admitted recent drug use, and his felony
convictions. Still, Cortez contests that under the Fourth Amendment, it was
unreasonable to prolong his detention while waiting for a K-9 unit to conduct
a drug sniff.
Upon review of the record, we find no error. To begin, it is undisputed
that throughout these twenty-five minutes, the officers had probable cause to
arrest Cortez for two separate state offenses—the unlawful tint on the
truck’s windows and his admission that he had driven without a license.
Although we do not embrace the Government’s argument that Rodriguez is
inapposite when probable cause to arrest exists, we recognize that these
factors are nonetheless relevant to Rodriguez’s reasonable suspicion analysis.
Thus, we consider the truck’s darkly tinted windows and Cortez’s illegal
driving only insofar as they help raise the officers’ suspicion to “more than a
hunch.” Allen v. Cisneros, 815 F.3d 239, 246 (5th Cir. 2016).
Additionally, Cortez initially refused to exit his vehicle or to even roll
down his tinted windows so that the officers could see into the truck. Indeed,
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it took almost fifteen minutes—to the point where the officers were
considering breaking the window—for Cortez to comply with the officers’
instructions. Even considering that Cortez subsequently exited the vehicle,
this refusal supports the officers’ suspicion that Cortez was hiding something
illegal in his truck. See Reyes, 963 F.3d at 488–89 (listing a defendant’s initial
refusal to exit her truck as a factor supporting reasonable suspicion).
Finally, and importantly, during the stop Cortez confirmed his
criminal history, which included multiple arrests for drug possession as well
as state and federal felony convictions, and his current supervised release
status, and admitted that he had abused drugs as recently as several months
ago. This history and the considerations described above are enough to
demonstrate that the officers had “more than a hunch” that Cortez
possessed drugs. The district court did not err in denying the motion to
suppress.
III.
We AFFIRM the district court.
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