UNITED STATES of America, Plaintiff-Appellant, v. Luis CEBALLOS, Defendant-Appellee.
No. 09-2021
United States Court of Appeals, Tenth Circuit.
Dec. 9, 2009.
226-230
IV. Conclusion
For the foregoing reasons, we DISMISS this appeal pursuant to
Mr. Williams has not been recalcitrant in refusing to comply with the statutory IFP requirements or court orders, but has repeatedly attempted to comply and has been unable to produce a certified trust account statement. There is also no indication that the account statement is inaccurate. Compare Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir.1998) (explaining that the district court did not abuse its discretion in dismissing action when inmate failed to file affidavit and certified copy of trust fund account statement after being given four months to comply), with Crews v. District of Columbia, No. 97-7194, 1998 WL 315574, at * 1 (D.C.Cir. May 11, 1998) (remanding the case for district court to consider inmate‘s assertion that he failed to fully comply with court orders because facility failed to provide him with copy of his trust account statement or forward copy to court). Cf. Stallings v. Ritter, 345 Fed.Appx. 366, 369 n. 5 (10th Cir.2009) (explaining that the prison official justifiably refused to sign inmate trust account statement because it did not accurately reflect inmate‘s average account balance); Hawkinson v. Montoya, 283 Fed.Appx. 659, 665 (10th Cir. 2008) (reasoning that the inmate could not argue that he had difficulty in obtaining account statements from officials because he had not made that argument in response to four show cause orders); Montana v. Hargett, 212 Fed.Appx. 770, 773 (10th Cir.2007) (finding that the district court did not abuse its discretion in dismissing action when inmate was given opportunity to support argument that he was precluded from receiving certified copy, but supplied only unsupported conclusory allegations of wrongdoing by prison officials, did not allege that his failure to provide certified copy was attributable to prison officials, and on three occasions he was able to obtain properly certified copies). Yet, because we have determined that this appeal is frivolous and a grant of IFP status to Mr. Williams would be inappropriate, we need not definitively decide whether Mr. Williams‘s failure to file a certified trust account statement would in itself fatally scuttle his claim for IFP relief.
Laura Fashing, Louis E. Valencia, Office of the United States Attorney, Albuquerque, NM, for Plaintiff-Appellant.
Roger A. Finzel, Esq., Federal Public Defender for the District of New Mexico, Albuquerque, NM, for Defendant-Appellee.
Before BRISCOE, MCWILLIAMS and MURPHY, Circuit Judges.
ORDER AND JUDGMENT*
MICHAEL R. MURPHY, Circuit Judge.
I. Introduction
Defendant-Appellee Luis Ceballos was charged in a multi-count indictment with
II. Background
On June 11, 2007, Officer Valentin Gallegos was patrolling an area in Taos, New Mexico, when he observed a person, later determined to be a teenage girl, dressed in dark clothing walking down a main road. Gallegos testified the pedestrian caught his attention because it was late at night, there was not much traffic, and she was wearing clothing that covered her face. While seated in his patrol car waiting for the pedestrian to pass in front of his headlights, Gallegos observed a white pickup truck slow down as it drove past the pedestrian. The truck continued along the main road for approximately fifty or sixty yards but then made a U-turn and traveled back toward the pedestrian. When the pedestrian left the main road and began walking eastbound down a residential side street, the truck also turned down the side street. Gallegos parked at the top of
Gallegos turned down the residential street and contacted the pedestrian. She told Gallegos the driver of the truck had offered her a ride but she declined, telling him she “just lived down the road in the condos.” She also told Gallegos she did not know the driver. Gallegos then watched the truck as it traveled eastbound down the street and pulled into a driveway. Instead of turning around and returning to the main road, however, the truck backed out of the driveway and parked just east of the driveway, pointed in the direction the pedestrian was walking. Gallegos testified the truck was stopped with its lights off in a very dark area of the road.
Gallegos activated his emergency lights and pulled up behind the truck. After calling in the license plate number, Gallegos got out of his patrol car and approached the truck. The driver, defendant-appellee Luis Ceballos, confirmed the female pedestrian had refused his offer of a ride. Gallegos testified he smelled alcohol on Ceballos‘s breath “almost immediately” after he started talking to him. Gallegos asked Ceballos for his license, registration, and proof of insurance. Ceballos admitted he did not have a driver‘s license but reached into his glove box to retrieve the registration and proof of insurance. As Ceballos leaned forward, Gallegos observed what appeared to be a rifle between the front seats. When asked, however, Ceballos denied possessing a weapon. At that point, Gallegos asked Ceballos to step out of the truck.
Gallegos placed Ceballos in the back seat of the patrol car and returned to Ceballos‘s truck to retrieve the firearm. While removing the firearm from the truck, Gallegos observed a large amount of cash scattered around the passenger seat and a wallet that could not close because it contained so much money. Officers later discovered cocaine and an additional firearm in the vehicle. A pat-down search uncovered more cocaine and ammunition.
Ceballos was arrested and charged with being a felon in possession of a firearm, in violation of
III. Discussion
When reviewing a grant of a motion to suppress evidence, this court accepts the district court‘s factual findings unless clearly erroneous. United States v. Jurado-Vallejo, 380 F.3d 1235, 1238 (10th Cir. 2004). The ultimate determination of reasonableness under the Fourth Amendment, however, is a question of law this court reviews de novo. Id. The Government does not challenge any of the district court‘s factual findings. Instead, its appeal focuses on the district court‘s ruling that the initial detention was not reasonable under the Fourth Amendment because it was not justified by reasonable
The district court based its ruling, in part, on Gallegos‘s testimony that he was acting on a “hunch” when he stopped Ceballos. See United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir.2009) (reiterating that unparticularized hunches about criminal activity are not sufficient to justify an investigative detention under the Fourth Amendment). But Gallegos‘s subjective characterization of his actions is irrelevant. See United States v. Winder, 557 F.3d 1129, 1134 (10th Cir.2009). This court judges his “conduct in light of common sense and ordinary human experience, and we accord deference to an officer‘s ability to distinguish between innocent and suspicious actions.” United States v. Williams, 271 F.3d 1262, 1268 (10th Cir.2001) (quotation and citation omitted).
A review of the totality of the circumstances shows Gallegos was not acting on an unparticularized hunch; during his testimony he articulated specific facts that caused him to suspect Ceballos intended to assault or abduct the teenage pedestrian. Specifically, at the time Gallegos initiated the traffic stop, he had observed Ceballos slow his vehicle as he passed a teenage girl walking alone late at night. He then observed Ceballos alter his route by making a U-turn and following the girl down a narrow, nearly deserted residential street. Ceballos pulled alongside the girl, who he did not know, and asked her if she wanted a ride. She refused, telling him she lived up the street. Ceballos then drove further down the road, pulled into a driveway as if to turn around and return to the main road, but instead backed out and drove a few feet further east, in the same direction the girl was walking. He parked in a dark location and turned off his lights.
The district court summarized this evidence as “a young man in a pickup talking to a woman walking down the street.” This statement greatly oversimplifies the situation and ignores many relevant facts that support the objective reasonableness of the investigative detention. Additionally, the district court‘s observation that the teenage pedestrian did not manifest any apprehension or seem concerned for her safety does not negate Officer Gallegos‘s reasonable suspicion in any way. See United States v. Johnson, 364 F.3d 1185, 1187, 1191-92 (10th Cir.2004).
We agree with the Government that Officer Gallegos had reasonable suspicion to stop and detain Ceballos. Ceballos showed an interest in a teenage girl he did not know, to the point that he changed his route to follow her down a dark street, offered her a ride, and then parked where the girl would be required to walk past him as she continued to her home. The facts found by the district court, viewed in totality, amply support the constitutionality of the investigative detention.2
IV. Conclusion
The judgment of the district court granting Ceballos‘s motion to suppress is
UNITED STATES of America, Plaintiff-Appellee, v. Bradley N. FROST, and Wakon I. Redcorn, Jr., Defendants-Appellants.
Nos. 09-5034, 09-5035.
United States Court of Appeals, Tenth Circuit.
Dec. 9, 2009.
Catherine J. Depew, Phillip E. Pinnell, Kenneth Palmer Snoke, Office of the United States Attorney, Tulsa, OK, for Plaintiff-Appellee.
Jack Dwayne Fisher, Esq., Jack Fisher Attorney at Law, Edmond, OK, for Defendants-Appellants.
Before TACHA and GORSUCH, Circuit Judges, and STAMP, Senior District Judge.*