United States v. Mario De Leon-Reyna , 930 F.2d 396 ( 1991 )

PER CURIAM:

Today we decide whether the district court erred in granting a defendant’s motion to suppress evidence gathered following a warrantless investigatory stop — a stop made partly in good faith reliance on information that was inaccurate through police error. A panel of our Court affirmed the district court, concluding that the vehicle stop violated the defendant’s Fourth Amendment rights and further holding that “negligent” police conduct truncated the good faith exception to the exclusionary rule. We now reconsider that decision en banc and reverse the district court.

I.

The facts are set forth in the panel opinion, 898 F.2d 486, to the extent that they are not recounted here. On December 6, 1988, United States Border Patrol Agent Ernesto Martinez (Martinez), during routine patrol duty, parked his marked car on farm-to-market road 2050 — a known alternative route of drug and alien smugglers seeking to avoid nearby Border Patrol checkpoints.¹ During his surveillance, he noticed a welding truck heading south, approaching his position. He was immediately struck by the truck’s want of welding equipment — there were no tanks, arc welders, or metal hoses present in the truck, unlike welding trucks he had previously seen and inspected in the area. Instead, this truck contained a stack of plywood bound by metal straps, indicating that all of the plywood had been loaded at one time. The truck, however, had no pallets or other objects to create the holes needed for a forklift to load the cargo. The driver, defendant De Leon-Reyna, appeared surprised and “scared” to see a Border Patrol agent. Furthermore, the truck bounced erratically and dragged a broken shock absorber, suggesting that the weight on the rear of the truck was very heavy. Agent Martinez also knew from reading a Border Patrol Intelligence Center reference book that stacks of plywood often concealed false compartments used for smuggling drugs and aliens.

Suspicious, Agent Martinez then radioed the truck’s license plate number “WM-1438” to the dispatcher, who misunderstood him to say “WN-1438.” The dispatcher acknowledged the message but owing to the error radioed back that the license check had revealed that the plates were issued to a 1973 Ford dump truck and not the 1982 Chevrolet welding truck that Agent Martinez was following.

Based on his observations and on the license check, Agent Martinez pulled the truck over. Agent Martinez inquired about the defendant’s citizenship; and the defendant produced a resident alien card, volunteering that he was en route to a town down the road to do a construction job. When Agent Martinez asked the name of the town, however, the defendant replied that he had forgotten both it and the delivery address for the lumber. After additional questioning, Agent Martinez suspected that the defendant was lying. He asked permission to inspect the truck, and the defendant consented. Looking under the truck, Agent Martinez discovered a freshly welded, false compartment underneath its bed. After asking the defendant whether he knew if someone had tampered with the truck and receiving a negative response, he asked the defendant to step out of the car and produce a copy of his title.

Upon examining the title, Agent Martinez realized that the license check may have been inaccurate because the title matched the license plate on the truck. He radioed the dispatcher to run a second check and then radioed a border patrol agent at the nearby Freer checkpoint station, asking him to bring a drug sniffing dog to determine whether or not a search of the false compartment was necessary. The second license check gave Agent Martinez the correct information. When the dog arrived, it alerted to the rear of the truck; Border Patrol agents later discovered over half a ton of cocaine in the false compartment.

The United States indicted De Leon-Reyna for possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). He filed a motion to suppress the evidence, maintaining that Agent Martinez’s initial stop was without a warrant or reasonable suspicion. During the district court’s hearing on the motion to suppress, the dispatcher testified that it is her unit’s policy to use code words for communicating license plate letters, although that policy is not always followed. In making his transmission on the occasion in question, Martinez did not use code words for the license plate letters.

The district court granted the motion to suppress, concluding

“that the Government cannot justify a stop based on erroneous information when the error is due to the negligence of its own employees. Once the putative false registration is removed from the picture, the remaining circumstances do not justify a stop,”

and that

“[t]he Court does not question the good faith of the officers who made this stop, but as yet there is no precedent extending a good-faith exception to erroneous factual information relied upon by officers in making a warrantless stop. The Court thus concludes that it has no other recourse but to grant the motion to suppress.”

The panel affirmed the district court. It conceded that “if the registration information provided over the radio was correct, then sufficient foundation for a brief investigatory stop existed.” Id. at 488. However, the panel noted that the government conceded that “Martinez was negligent for failing to follow proper radio procedures,” and held that accordingly the registration information could be given no consideration whatever in determining whether there was an articulable, objective basis for the stop. Id. at 488-89. Concluding that the other circumstances did not justify the stop, the panel held that the stop violated defendant’s Fourth Amendment rights. The panel then turned to “the good faith exception to the exclusionary rule,” under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and United States v. Williams, 622 F.2d 830, 840 (5th Cir.1980) (en banc), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981). Although the panel recognized that “this circuit applies the [good faith] exception to warrantless searches,” 898 F.2d at 491, it held that Martinez’s negligent failure to follow his unit’s code word policy precluded reliance on that exception, notwithstanding that “Martinez’s mistake was made in good faith.” Id.

II.

We conclude that regardless of whether Martinez was negligent in failing to follow his unit’s code word policy, his good faith reliance on the license report information, as forming a part of the total circumstances he evaluated in determining whether to stop the vehicle, was objectively reasonable, and that accordingly the district court and the panel erred in holding that this information could be given no consideration whatever in evaluating whether the stop was justified under the reasonable suspicion standard of United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).² For the same reason, we also conclude that the district court and the panel erred in holding that the failure to follow the code word policy precluded reliance on the good faith exception to the exclusionary rule.

In Fourth Amendment cases, the Supreme Court begins with the basic premise that, when examining whether an officer’s judgment is objectively reasonable, “the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account.” Cortez, 101 S.Ct. at 695. The most recent affirmation of this principle is to be found in Illinois v. Rodriguez, - U.S. -, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), where the Supreme Court found no Fourth Amendment violation when police had made a warrantless search of an apartment based on their reasonable belief that they had a valid consent to do so, when in fact they did not. The officers in Rodriguez, had interviewed an assault complainant who referred to the defendant’s apartment as “our apartment” and also possessed a key to the apartment. Id. 110 S.Ct. at 2797. Without further inquiry, the police searched the defendant’s apartment and discovered substantial quantities of cocaine. Id. The officers never sought an arrest warrant or a search warrant and only later discovered that the complainant had no common authority over the apartment but in the past had been a somewhat infrequent visitor only. Id.

The Supreme Court held that — despite the officers’ failure to obtain a warrant or to make further inquiries as to who had a possessory interest in the apartment — the search would be valid if the officers’ belief that they had consent, in light of all the, circumstances, was objectively reasonable. See id. at 2801. See also Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971).

Similarly, the issue here is not whether Martinez should have followed his unit’s code word policy, but rather whether his good faith reliance on the license plate report, along with the other circumstances, in determining to stop the defendant’s truck, was objectively reasonable. We do not view the code word policy as being constitutionally. mandated or as establishing a constitutional minimum for reliability. Moreover, the policy plainly does not have the force of law, and there is nothing to suggest that it is even written, much less published. There is no showing that it is designed to do anything more than enhance the reliability of communications. However, this does not suggest that all communications otherwise received are wholly unreliable. Hypothetically, on a scale of 1 to 100, a code word initiated report might have a reliability factor of 85, and one where code words are not utilized a reliability factor of only 65. While such a disparity would support the advisability of a code word policy, it would not mean that a report received where the policy had not been followed is so unreliable that it may not reasonably be given any consideration whatever. Obviously, this is not an “all or nothing” proposition for those acting in good faith.

Under the totality of the facts and circumstances present here, an objective officer situated as was Martinez could have reasonably relied on the license plate report information. Officer Martinez testified that he got up close to the back of defendant’s truck so that he could clearly see the tag and carefully spoke the letters and numbers into his radio transmitter. The experienced dispatcher — thirteen years on the job — obviously thought she understood the transmission. She made no request to Martinez to repeat what he had said or to use phonetics for letters. At the receiving end of the dispatcher’s responsive transmission, Martinez had no basis for thinking she had had any problem in understanding the tag number as he gave it. The dispatcher testified that officers often did not follow the policy procedures when transmitting license plate numbers.³

We conclude that in this setting an objectively reasonable officer could properly rely on the license report information, notwithstanding that he knew it was obtained without the use of code words, as forming a part of the total circumstances to be evaluated in determining whether there existed the requisite reasonable suspicion to stop the vehicle. Accordingly, although the license plate information turned out to be erroneous, it nevertheless may not be disregarded in determining either the legality of the stop or the availability of the good faith exception.

III.

Under the good faith exception to the exclusionary rule, “evidence is not to be suppressed ... where it is discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized.” Williams, 622 F.2d at 840. In our Circuit, the good faith exception applies to warrantless arrests. See id. at 840 n. 1. The exclusionary rule is “neither intended nor able to ‘cure the invasion of the defendant’s rights which he has already suffered’ ” but rather “operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect....’” Leon, 104 S.Ct. at 3412. The deterrent effect of the exclusionary rule must in turn be balanced with the “substantial social cost” the rule imposes. Id. In Leon, the Supreme Court noted that:

“[particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system.” Id. (emphasis added).

Concluding that the good faith exception applies to cases in which a police officer errs, but nevertheless maintains a good faith and objectively reasonable belief that he has an adequate foundation to make a stop, we now examine whether Agent Martinez’s concededly good faith belief was an objectively reasonable one. For the reasons previously stated, in making this determination we consider the license report information received by Martinez, albeit discounting it somewhat because he was charged with knowledge that it might not be as reliable as it would have been if the code word policy had been followed.

The Supreme Court has stated that “officers on roving patrol may stop vehicles only if they are aware of specific articula-ble facts, together with rational inferences from those facts, that reasonably warrant suspicion” that a vehicle harbors contraband. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975) (discussing searches for illegal aliens); see also Cortez, 101 S.Ct. at 695-97.

Here we determine that it was objectively reasonable for an officer in Agent Martinez’s position to conclude that under all the circumstances there was a particularized and objective basis for reasonable suspicion that defendant’s vehicle was engaged in criminal activity — in other words, that a stop of the vehicle was lawful under the standards of Cortez and Brignoni-Ponce. Martinez’s decision to pull the truck over — including his good faith reliance on the license plate information— was not unreasonable in the face of all of the surrounding circumstances: the road’s common use by drug traffickers and close proximity to the border; the Border Patrol reference manual warning of smuggling efforts via false compartments in plywood cargo; the incongruity of the truck and the cargo it carried; and his evaluation of the circumstances and defendant’s conduct, based on four years of experience in the same area of Texas.⁴ His reliance on the license plate check is all the more unexceptionable given the district court’s acknowl-edgement that a “license plate switcheroo” is not uncommon in smuggling cases.

Indeed, we are inclined to believe that the stop of defendant’s vehicle fully complied with the Cortez standard and was hence lawful. But even if we were to ultimately conclude that the circumstances fall marginally short of Cortez’s requirements, nevertheless it is abundantly clear that it would have been objectively reasonable for an experienced, well-trained police officer in this setting to conclude that those requirements were satisfied and that the stop was hence legal. Cf. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039-41, 97 L.Ed.2d 523 (1987). Accordingly, the “good faith” exception to the exclusionary rule is applicable, and the district court erred in granting the motion to suppress.⁵

Conclusion

Agent Martinez’s failure to comply with his unit’s code word policy is not of itself the determinative issue in this case, nor is the question of whether in some sense or for some purpose that failure may be characterized as negligent. And, it is not determinative that the license plate information ultimately turned out to be wrong, just as it is not determinative that Agent Martinez’s suspicion ultimately turned out to be well founded. What is determinative is that it was objectively reasonable for an experienced officer in Martinez’s position to take the license plate information into account as forming part of the total circumstances to be evaluated and relied on in determining that there was reasonable suspicion to stop the vehicle, and that in doing so Martinez acted in good faith. This being the case, the license plate information relayed to Martinez may not be wholly disregarded, but on the contrary must be taken into account (albeit discounted somewhat for lessened reliability attendant on the means of communication employed), in judging both whether the stop was indeed lawful and also whether, for purposes of the good faith exception, it would be objectively reasonable for a similarly situated, experienced officer to conclude that the stop was lawful. Taking the license plate information thus into account, we hold that it would be objectively reasonable for an experienced officer, situated as was Martinez, to conclude that there was adequate reasonable suspicion under the Cortez standard and that it was hence lawful to stop the vehicle. Thus, the good faith exception to the exclusionary rule is applicable and the evidence should not have been suppressed.

The district court’s order granting defendant’s motion to suppress is reversed and the cause is remanded.

REVERSED and REMANDED.

1 . Martinez was approximately thirty to forty miles from the Mexican border. In his four years with the Border Patrol prior to the defendant’s arrest, Agent Martinez himself had apprehended illegal aliens on FM 2050 on more than thirteen different occasions. FM 2050 is not well-traveled; only two other cars passed Agent Martinez in the hour and a half he was on duty before the defendant’s truck appeared.

2 . Considering “the totality of the circumstances ... the detaining officers must have a particularized and objective basis for suspecting" that the vehicle stopped is engaged in criminal activity, id. at 695, although this need not rise to the level of affording probable cause for arrest or search. Id. at 697.

3 . There was no contrary evidence. The only evidence concerning the policy was the dispatcher's testimony.

4 . All of the foregoing are valid considerations for making an investigatory stop. See Brignoni-Ponce, 95 S.Ct. at 2582. (The close proximity to the border, the traffic on the particular road, information and experience available to the officer, the driver’s behavior, aspects of the vehicle itself — are all relevant factors in detecting illegal smuggling.)

5 . By ultimately resolving this case on the Leon-Williams exception to the exclusionary rule, without determining that the stop violated the Fourth Amendment (indeed, as indicated, we conclude it likely did not), we do not imply that the district courts usually should not (or should) first resolve the substantive Fourth Amendment issue. Where there is an important unresolved substantive issue under the Fourth Amendment, it may often be preferable to reach that issue first, and only proceed to Leon-Williams if the substantive issue is resolved against the validity of the challenged action (see Leon, 104 S.Ct. at 3421-22); whether or not it is also appropriate to proceed in that (or the opposite) fashion more generally, or whether the order of proceeding is better addressed on a case by case basis (cf. Leon, 104 S.Ct. at 3421), we leave till another day.