Lead Opinion
In this criminal appeal, Defendant Reshard Benard challenges the district court’s denial of his motion to suppress evidence obtained during a vehicle stop on January 16, 2009. Following the denial of his suppression motion, Defendant entered a conditional plea of guilty to conspiracy to manufacture cocaine base and possession of a firearm as a convicted felon. He was then sentenced to a twenty-year sentence, the mandatory minimum for his conspiracy charge.
Background
In 2008, the FBI began investigating an individual named Gessiel Sanchez, who was allegedly dealing drugs out of the tire store he managed in Salt Lake City, Utah. From December 16, 2008, until January 23, 2009, the FBI conducted an authorized wiretap on Mr. Sanchez’s phone. Among those who frequently called Mr. Sanchez, the FBI identified one individual they dubbed “Tommy.” Although Tommy and Mr. Sanchez never expressly mentioned drugs, the FBI concluded that Tommy was purchasing cocaine from Mr. Sanchez based on the context, including the per-ounce prices discussed and Tommy’s complaint regarding the amount of product when “cooked up.” Tommy also made a few phone calls in which he talked about purchasing tires, and in these phone calls he did not request products in ounces.
The intercepted phone calls suggested that Tommy purchased drugs from Mr. Sanchez on approximately ten occasions, with all or almost all of their meetings occurring at Mr. Sanchez’s tire shop. Because the surveillance team was not always available, the FBI attempted surveillance of only five or so meetings between Tommy and Mr. Sanchez. On these occasions, the surveillance team observed Defendant arriving at the store and then leaving within about five minutes. Defendant was also observed purchasing tires from the store on one occasion. By checking the license plate number on Defendant’s white Cadillac, FBI agents were able to determine Defendant’s name. Agents from the surveillance team then confirmed that the photo on his driver’s license matched the person they had observed meeting with Mr. Sanchez following Tommy’s phone calls. When they checked his records, the FBI also discovered that Defendant had previously been convicted of possessing a firearm in furtherance of a drug-trafficking offense.
On January 16, 2009, Tommy and Mr. Sanchez had a series of phone calls setting up a sale. In a phone call that morning, Tommy asked Mr. Sanchez what he could get for $1,300. Mr. Sanchez asked whether he wanted “Vh or 2.” (R. vol. 2 at 26.) In reply, Tommy said he wanted 2$ and would “make it up to [Mr. Sanchez] later.” (Id.) Based on previous phone calls establishing that Mr. Sanchez sold cocaine for approximately $650 per ounce, FBI agents concluded that Defendant was requesting Mr. Sanchez to sell him two ounces and front him an additional half ounce of cocaine. Around 1 pm, Mr. Sanchez called Tommy and told him “it’s ready.” (Id.) Tommy replied, “[G]ive me about 15 minutes.” (Id.) At 2:02 pm, Mr. Sanchez called Tommy, who said he would be there in five minutes. Mr. Sanchez replied, “[Y]ou have three minutes.” (Id.)
At “[approximately 2 o’clock,” agents from the surveillance team observed Defendant arriving at the tire store, where he stayed for about five minutes. (Id. at 36.) When he left, surveillance units followed him. One of the investigating officers then contacted a trooper from the Utah Highway Patrol and asked him to conduct a “wall stop” on Defendant’s vehicle. In a
The trooper then asked Defendant if he could pat him down, and Defendant agreed. While patting down Defendant’s left pocket, the trooper felt something and asked if he could take it out. Defendant agreed to let the trooper remove it, telling him it was Mexican candy. This item was later found to contain cocaine. After removing the purported candy, the trooper patted down Defendant’s right pocket and again found something he could not identify. When asked, Defendant told the officer that this item was weed, and he allowed the trooper to remove the item. The trooper saw that the item indeed appeared to be marijuana, and he accordingly handcuffed Defendant and took him into custody. The trooper then asked what else he might find in the car, and Defendant said there might be a gun left by his girlfriend. An officer who searched the car at the scene found a loaded gun inside the vehicle. At no point during the encounter was Defendant advised of his Miranda rights. See Miranda v. Arizona,
Following his indictment, Defendant filed a motion to suppress all of the evidence obtained as a result of the traffic stop. In addition to challenging the legality of the traffic stop as a whole, he also challenged the validity of his consent to the pat-down search and the admissibility of his un-Mirandized statements. The matter was referred to a magistrate judge, who held an evidentiary hearing and recommended that the motion to suppress be denied in full. The magistrate judge concluded that the traffic stop could be justified on either of two alternative grounds— (1) probable cause to believe the vehicle contained contraband, or (2) reasonable suspicion that Defendant was operating the vehicle without insurance. The magistrate judge further concluded that the pat-down search was consensual and that Defendant’s statements did not need to be suppressed under Miranda. The magistrate judge’s findings and conclusions were adopted by the district court, which accordingly denied Defendant’s suppression motion. Defendant then entered a conditional guilty plea and was sentenced to twenty years’ imprisonment. This appeal followed.
Discussion
In reviewing the denial of a defendant’s motion to suppress, we view the evidence in the light most favorable to the
We first consider the district court’s conclusion that the traffic stop was supported by probable cause. Under the automobile exception to the warrant requirement, police officers may stop and search a car if they have probable cause to believe it contains contraband, regardless of whether a traffic violation has occurred or a search warrant has been obtained. See United States v. Chavez,
In essence, the parties’ arguments on this issue boil down to one question— did the investigating officers have probable cause to believe Defendant was the drug buyer they had designated as “Tommy”? Defendant argues that “the fact that his appearance at a tire store sometimes coincided with tapped phone calls” is insufficient to establish probable cause (Appellant’s Opening Br. at 19), especially since the surveillance team observed him actually purchasing tires from the tire store and installing them on his vehicle. However, although the officers may not have had airtight proof that Defendant was Tommy, we conclude that the facts were sufficient to establish probable cause. There were around five occasions where surveillance was conducted on the tire store after Tommy set up meetings with Mr. Sanchez, and on these occasions Defendant was seen arriving at the tire store and leaving a few minutes later. The fact the surveillance team observed Defendant purchasing tires at the store on one occasion did not diminish the likelihood that he was Tommy, especially since Tommy’s phone calls with Mr. Sanchez included discussions of tire purchases as well as drugs. On January 16, 2009, Tommy and Mr. Sanchez arranged a cocaine purchase, and Defendant showed up at the tire store during the expected buy time. The totality of the circumstances established a fair probability that Defendant’s car contained contraband when he drove away from the tire store after this visit, and we therefore hold that the stop and search of Defendant’s vehicle was permitted under the automobile exception.
Because we affirm the stop on this basis, we need not consider the district court’s alternative holding that the stop was justified based on the trooper’s reasonable suspicion the vehicle was being operated without insurance. We also need not consider Defendant’s argument that the vehicle stop and search unlawfully exceeded the scope of an insurance verification check: the search of Defendant’s vehicle for contraband was permitted under the automobile exception, and the trooper’s use of a cover story to mask the true basis for the stop
We thus turn to Defendant’s next argument — that his consent to the pat-down search was coerced and therefore invalid. In United States v. Sanchez,
the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; prolonged retention of a person’s personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed space; and absence of other members of the public.
Id. Defendant argues that certain of these factors weigh against a finding of voluntary consent in this case, since more than one officer was present and the trooper who conducted the search physically touched Defendant, spoke with an authoritative tone of voice, and ordered Defendant’s friends to go back inside their residence. However, we review the district court’s finding of voluntary consent only for clear error, see United States v. Cruz-Mendez,
We next turn to Defendant’s argument that the statements he made both during and after the pat-down search should have been suppressed under Miranda. “It is well established that police officers are not required to administer Miranda warnings to everyone whom they question. Instead, Miranda only applies when an individual is subject to custodial interrogation.” United States v. Hudson,
Traffic stops do not usually implicate Miranda concerns, since a traffic stop
We are not persuaded the Perdue exception applies in this case. The trooper’s orders for Defendant to show his hands and leave the car did not involve a level of force or command consistent with a formal arrest. Indeed, these actions are a permissible part of a routine traffic stop. See United States v. Holt,
On the other hand, we conclude that the district court erred in failing to suppress Defendant’s post-arrest statements, particularly his statement that his girlfriend might have left a gun in his car. The district court concluded that, although Defendant was in custody at the time this statement was made, he was not subjected to interrogation. The court reasoned that the trooper’s question about what he would find in the vehicle was based on safety concerns and was not reasonably likely to elicit an incriminating response. However, as the government concedes on appeal, the public safety exception was inapplicable. We have held that Miranda warnings are not required for an officer to ask a suspect if he has any guns or sharp objects, so long as the officer has “reason to believe (1) that the defendant might have (or recently have had) a weapon, and (2) that someone other than police might gain access to that weapon and inflict harm with it.” United States v. DeJear,
Having so held, we must next consider whether the district court’s failure to sup
“The burden is on the government to prove beyond a reasonable doubt that an error is harmless.” United States v. Miller,
late court to reach this conclusion beyond a reasonable doubt. See id. “Unlike a verdict, which must necessarily be based exclusively on the evidence submitted at trial, a defendant’s decision to plead guilty may be based on any factor inside or outside the record.” Id. Thus, “only the defendant is in a position to evaluate ‘the impact of a particular erroneous refusal to suppress evidence.’” Jones v. Wisconsin,
As the California Supreme Court has explained:
There simply is no intelligent means of assessing the impact of a particular erroneous refusal to suppress evidence. Unlike the ordinary post-trial appeal, there is nothing at all in the record to indicate what evidence or defenses the defendant is capable of producing on his own behalf.... After the exclusion of certain items of evidence, the prosecution’s case may continue to appear invulnerable to an appellate court which necessarily can look only to the strength of competent evidence indicative of the accused’s guilt. However, the defendant may have or believe he has means of impeaching, discrediting or casting doubt on such evidence, and the items excluded on appeal might be the very ones which posed the most difficult strategic problems for the defendant.... We cannot, with any assurance, conclude*1214 that an appellate court, which does not have the benefit of that knowledge, can consistently arrive at an accurate assessment of whether the defendant would again plead guilty after knowledge that some but not all of the challenged evidence is to be suppressed. To the contrary, an unacceptable degree of appellate speculation would necessarily inject itself into the application of the harmless error concept in such a context.
Hill,
Like the First Circuit, we find the California Supreme Court’s opinion in Hill and the New York Court of Appeals’ opinion in Grant to be well-considered and persuasive. See United States v. Weber,
Nor are we persuaded by the government’s argument that any remand of this case should be limited to the firearm conviction because Defendant’s post-arrest statements did not implicate his drug conviction. This argument “ignores the fact that the guilty plea was entered as part of an agreement involving all of the counts of the [indictment].” People v. Miller,
In so ruling, we note that, should Defendant choose to withdraw his plea on remand, the parties will be restored to the status quo ante except as to the improperly admitted evidence. See Miller,
Conclusion
The district court’s order denying Defendant’s suppression motion is REVERSED as to Defendant’s post-arrest statements but otherwise AFFIRMED. Defendant’s convictions and sentence are REVERSED and REMANDED. On remand, Defendant should decide whether he wishes to withdraw his plea under Rule 11(a)(2). If Defendant elects not to withdraw his guilty plea, the district court is directed to reinstate his convictions and sentence.
Notes
. Moreover, the trooper’s question was broadly framed and was not focused on possible safety concerns. For this reason as well, we conclude that Miranda warnings were required.
Concurrence Opinion
concurring in part and dissenting in part.
I concur a great deal more than I dissent. My colleagues hold the traffic stop lawful, the pat-down consensual, and Mr. Benard’s pre-arrest statements admissible. With all this, I agree. I agree, too, that Mr. Benard’s post-arrest statement was
erroneously admitted and that we must decide whether that error was or was not harmless. And I agree that, for a constitutional error like this one to qualify as harmless, it’s incumbent on the government to prove beyond a reasonable doubt that the admission of Mr. Benard’s post-arrest statements would’ve made no difference to his plea calculation. See Chapman v. California,
My concerns arise only when the court ventures beyond these holdings. On pages 1213, the court speculates that the government will “very rarely be able to make [the harmless error] showing” in the context of a conditional plea, citing for support state cases that categorically refuse to apply harmless error analysis in this arena. The court’s commentary here is dicta because neither Mr. Benard nor the government suggests any difficulty with the application of harmless error analysis in this case or discusses any of the arguments or authorities the court examines. See Headrick v. Rockwell Int’l Corp.,
I mention this only because the court’s detour along the way to its holding raises important issues this court will have to resolve in another case another day. The court cites favorably state court decisions holding harmless error analysis inapplicable to the conditional guilty plea context because of the epistemological challenges associated with reconstructing whether a particular defendant would have pleaded guilty but for an antecedent legal error. See, e.g., People v. Hill,
Finally, I must also respectfully dissent from the court’s harmless error holding. To be sure, the court eventually returns to and applies the traditional federal harmless error test (on pages 1213-14). But when it does so, the court tells us that the government hasn’t met its burden without telling us why. And it’s difficult to understand why. To be sure, after arresting Mr. Benard, a police officer asked him whether he would find anything in his car. Mr. Benard answered that his girlfriend sometimes kept a gun there. And that erroneously admitted statement, Mr. Benard argues, strengthened the government’s hand on the felon in possession charge and induced him to plead guilty.
But at least two serious problems attend this theory. First, Mr. Benard does not dispute that the government had ample other admissible evidence to prove the gun charge against him: everyone agrees the gun would have been found pursuant to a lawful inventory search regardless of Mr. Benard’s statements; the gun was located in a vehicle over which Mr. Benard had exclusive control; and Mr. Benard’s girlfriend gave a statement suggesting the gun was his. Second, and making matters even worse for Mr. Benard, the gun charge had no effect on the potential sentence he faced. When deciding whether to plead guilty, he already faced a 20 year mandatory minimum sentence thanks to the separate drug charges against him. And his advisory guidelines sentence range was even higher than that, thanks to a career offender enhancement. The gun charge had no impact — one way or the other — on any of this. (And, in the end of course, the district court varied downward from the guidelines range to the 20 year mandatory minimum.)