United States v. Frank Miranda-Guerena

Alvarez, regulation of a 16. See United States v. of which he was indisput- (9th Cir.2004) (confirming 1207 n. 8 ably aware. would ruling follow the governs discovery in criminal that Rule 16 the Tenth Circuit in Allen and hold that expressly discovery cases and excludes the district court acted well within its dis- by prospective govern- “statements made cretion in excluding testimony. There- witnesses”) (citation omitted). ment fore, I respectfully dissent. This is not a case where Bahamonde discovery request

made a govern- to the improperly

ment which was refused. Had case,

such been the the federal pro- rules array

vide the district court with an See,

options compel compliance. e.g. 16(d). America, UNITED STATES of Rather, case, R. P. Fed. Cr. this Plaintiff-Appellee, reg- counsel for disregarded Bahamonde ulation, aware, of which he was well to call witness, pre-trial not to conduct discov- MIRANDA-GUERENA, Frank ery. Defendant-Appellant. view, my

In not because this is a discov- case, ery Oregon, Wardius v. No. 05-10198. 37 L.Ed.2d 82 does United Appeals, States Court of Rather, not control the outcome. this ease Ninth Circuit. Allen,

is more akin to United States v. Allen, In F.2d 398 as in Argued and Submitted Feb. 2006. case, this the defendant made no effort to April Filed 2006. comply regulation with the requiring simi- lar summary advance notice and In testimony. upholding

desired the trial

court’s decision declining compel

testimony, the Tenth Circuit held:

Our record by shows no effort defendant

to submit the affidavit or statement

summarizing testimony desired so Department

that the could consider the

request grant and determine whether to

permission testimony. In view this, we feel that defendant is no

position to claim error in the court’s require testimony by pros-

refusal to regulation

ecutor. that the We con- feel trolling such Department disclosures Justice employees is valid. (citations omitted)

Id. at 407 (emphasis

added).

A similar result is warranted in this

case. Bahamonde requesting pre- discovery. seeking

trial He to call meeting requirements

witness without Tucson, AZ, Murray,

Robert L. for the defendant-appellant. Miskell,

Robert L. Assistant United Tucson, AZ, Attorney, plain- tiff-appellee. McKEOWN,

Before: ALARCÓN and HOLLAND,* Circuit Judges, and Senior Judge. District * Holland, The Honorable H. Russel Judge Senior United States District for the District of ALARCÓN, narcotics, Judge: Circuit search for his narcotics investi- gation would be revealed to Mr. Miranda- appeals Frank Miranda-Guerena from Guerena and Ms. Howerton. Because Of- denying court’s order his mo- the district ficer Hammarstrom not in a marked following tion to evidence his con- patrol vehicle emergency lights, with he guilty plea ditional for violation of 21 complete could not stop the himself. He 841(b)(A), §§ conspiracy U.S.C. 846 and to County contacted the Pima Sheriffs De- possess with intent to distribute cocaine partment and asked them prepared to be base. Mr. Miranda-Guerena contends to stop effectuate the if he observed a stop precipitated the traffic the traffic code violation. government’s County The Pima search and seizure was not supported by Department agreed Sheriffs suspicion provide reasonable that a to as- occurred; traffic code violation had and sistance and assigned Sheriffs Ja- stop that the traffic not supported by was son Davila prepared to be to stop the suspicion drug reasonable that a traffick- vehicle Ms. Howerton if driving was Offi- ing crime had occurred. We affirm be- cer Hammarstrom observed a traffic code stop cause we conclude that the traffic was violation. supported by suspicion reasonable Officer Hammarstrom observed Ms.

traffic violation had occurred. Howerton commit two traffic code viola- tions. He made a request police over the radio for Deputy Davila stop to the vehicle. Acting on information received from a Deputy completed Davila stop. the patrol officer that Mr. Miranda-Guerena At the time stopped he Ms. Howerton was involved the sale of cocaine from Miranda-Guerena, and Mr. Deputy Davila home, his Officer Michael Hammarstrom aware the information Tuc- the and other officers from the Tucson Police son Department Police officers had uncov- Department began surveillance of Mr. Mi- during ered their narcotics investigation, co-inhabitant, randa-Guerena and his Ro- and he had not witnessed the traffic code During days sie Howerton. three of sur- violations. veillance, the officers witnessed number Mr. of short duration Miranda-Guerena to coming sup- visits—visitors to moved house, press Mr. crack following and Mr. cocaine seized Miranda-Guerena or stop. Ms. Howerton visit- The district court denied ing other expe- motion, that, locations. Based on their concluding as a result of rience, the officers surveillance, considered these short their the Tucson Police De- visits to be consistent with narcotics trans- partment reasonably suspected officers actions. Mr. Miranda-Guerena and Ms. Howerton engaged drug were trafficking. The January

On Officer Hammar- district court did not determine whether strom observed Ms. driving Howerton stop of supported by the vehicle was Toyota Sequoia black SUV. Mr. Miranda- suspicion of a traffic violation. passenger. Guerena awas Officer Ham- marstrom perform decided to a traffic II stop. He stop reasoned that a traffic preferable investigative to an Mr. Miranda-Guerena contends stop based on his denying narcotics transactions the district court erred in his if because he nothing during found a motion stop because the of the Alaska, sitting by designation.

vehicle driven Ms. reject Howerton was not the Fourth Amendment. We this argument. supported by of a appeal, traffic violation. On Mr. Miranda- with, begin To did not challenges only legality Guerena of the violate Arizona law. Arizona Revised stop, traffic not challenge does § stops Statutes 28-1594 allows traffic discovery search that led to the presence.2 be made outside of the officer’s cocaine. Accordingly, we limit our consid- Box, In State v. 205 Ariz. 73 P.3d 623 eration to the traffic itself. Mr. Mi- Appeals the Arizona Court of con argues randa-Guerena that under Arizona § cluded that to “afford non- actually an officer must witness meaning light redundant preexist traffic violation order for a traffic stop 13-3883(B), ing we can conclude the to be valid. A district court’s denial of a peace former authorizes a officer to stop suppress motion to evidence is reviewed de motorists for traffic violations committed novo, findings and its factual are reviewed presence.” outside his or her Id. at 627. Willis, for clear error. United States v. Box was decided after district court (9th Cir.2005). 709, 431 F.3d 713 n. 3 case, denied the motion to in this holding but its is applicable. nevertheless investigatory stop of a vehicle is An “ explained, judicial As this Court has ‘[a] reasonable under the Fourth Amendment construction of a statute is an authoritative if reasonably suspects the officer statement of what the statute meant be Willis, traffic violation has occurred. 431 fore as well as after the decision of the F.3d at 714. “If the facts are sufficient to ” giving case rise to that construction.’ reasonably lead an officer to believe that Tacoma, City United States v. Washing ” of violation, there awas that will suffice.... ton, (9th 574, Cir.2003) 332 F.3d 581 (quot Mariscal, 1127, United States v. 285 F.3d ing Roadway Express, Rivers v. 511 U.S. 1130 298, 312-13, 1510, 114 S.Ct. 128 L.Ed.2d Officer Hammarstrom testified that he (1994)). 274 Section 28-1594 was in exis personally observed Ms. Howerton commit tence when Mr. Miranda-Guerena was two traffic violations. Mr. Miranda- stopped. Therefore, at the time Mr. Mi Guerena contends that the traffic § randa-Guerena was stopped, Deputy invalid because Davila did not wit- permitted stop, if even Arizona courts argues pursu- ness the violations. He yet interpret had to light the statute in ant to § Revised Statutes Arizona 13- 13—3883(B). § 3883(B), a police personally officer must B

witness the traffic According violation.1 to Miranda-Guerena, Mr. because the Mr. argues Miranda-Guerena al 13-3883(B), § violated it was ternatively invalid under application of 28-1594 to 13-3883(B) provides: 1. Section provides: 2. Section 28-1594 peace may stop A per- officer and detain a peace A duly agent officer or authorized reasonably necessary son as is investigate agency a traffic may stop enforcement and suspected an actual or violation of traf- person reasonably necessary detain a as is fic presence law committed in the officer's investigate suspected an actual or viola- may copy serve a of the traffic com- tion of copy this title and to serve a plaint any alleged civil or criminal traf- complaint alleged traffic for an civil or peace fic violation. A officer who serves a criminal violation of this title. copy complaint of the traffic shall do so within a alleged reasonable time of the criminal or civil traffic violation.

1237 stop, interpreted by require as Box does not the traffic violation to decision, right would violate the to due in occur presence. officer’s In other process contexts, under the United States Constitu- the Fourth Amendment allows process tion. He asserts that bars “[d]ue reasonable to be based on re- judicial application the retroactive ex- ports from parties, third including other pansion change of a law if law agencies. enforcement See United law is unforeseeable.” (App.Rep.Br.2). Hensley, States v. 469 U.S. disagree.

We 675, (1985) S.Ct. 83 L.Ed.2d 604 (holding conducting investigatory an stop, Application of the Box decision to police may rely on a bulletin issued from Mr. Miranda-Guerena’s case is not an un agency another if that bulletin was based expansion foreseeable the law viola on suspicion). There is no rea- process. tion of due United States v. son traffic stops should be treated differ- Qualls, 1138 & n. ently from for investi- Cir.1999) upon and the cases it which re gatory stops general. case, In this Ohio, lies, Brown v. 432 U.S. 169 n. information Davila received from (1977) 53 L.Ed.2d (citing Officer Hammarstrom was Columbia, based on rea- City Bouie v. sonable (1964)) suspicion: the 1697, personal 12 officer’s 84 S.Ct. L.Ed.2d 894 and Stewart, 1094, observation of the traffic Poland v. 117 violations. F.3d 1099 (9th Cir.1997), all forbid an unforeseeable If a state enacts a regulat statute expansion of a substantive criminal law— ing traffic stops requires that higher governs law that or affects a citizen’s con Amendment, standard than the Fourth duct. application Retroactive of unfore that statute does not raise the bar for what expansions seen of substantive violate law constitutes a reasonable seizure. See Ore process due ordinary person because an is Hass, 714, gon 719, v. 95 S.Ct. not able to conform his or her conduct to (1975) 1215, 43 L.Ed.2d (holding 570 Poland, what the requires. law See 117 may impose greater while a state restric F.3d at (holding application 1100 of police tions on activity required by than state court’s broad interpretation special of Amendment, the Fourth “may it not im circumstances statute did not violate due pose such greater restrictions as a matter process because the defendant had “fair law”). of federal constitutional Such rule warning under the statute” that his con would lead to a lack of uniformity the duct penalty). could result the death protection of level the Fourth Amendment Here, the in question govern po statutes provides. protection The would depend on conduct, lice not citizens’ conduct. Ms. what particular jurisdiction statutes a en Howerton deprived of fair warning States, acted. See Whren v. United 517 of operation how to conform her of a motor 1769, U.S. 135 L.Ed.2d vehicle to the law. application The (1996) 89 (rejecting proposed standard § 28-1594 and the Box decision to the for stops police based on enforcement traffic stop did not violate due process. practices practices because such “vary place place from from and time to

C time”). however, Ultimately, the issue . stop

before is The traffic was valid because it stop us not whether the was violated supported by Arizona question suspicion. law. The relevant Be- is whether stop violated Fourth cause the was based on reasonable Amendment. violation, The Fourth suspicion Amendment of a traffic we need not

1238 by it in a supported quires determine whether was exclusion evidence seized drug trafficking. search incident to an arrest or an invento Mariscal, v. 285 See United States F.3d law, ry illegal search is under state (9th Cir.2002) (stating 1129 1111-12, see id. at or to a traffic pursuant may appeals court of affirm “on basis stop based on a mistake substantive record”) fairly supported by (quoting law, state criminal see States v. United Smith, United States v. 155 F.3d (9th Cir.2001) King, F.3d 741-42 Cir.1998)). n. 5 (“Because an officer’s mistake of [state] AFFIRMED. law cannot form the basis for reasonable suspicion to initiate a traffic stop, we re McKEOWN, Judge, concurring: Circuit King’s verse the district court’s denial of separately to underscore that write Here, motion to suppress.”). exception no law, federal not Arizona is determina- applies. specific exception, Absent a admissibility tive of the of evidence in this general rule remains that the federal con majority The case. dedicates substantial stitutional test for reasonable is explaining why time not affected state law. United Cf. permissible under Ariz.Rev.Stat. 13- Becerra-Garcia, v. 3883(B), why application retroactive (9th Cir.2005) (treating tribal law Arizona Appeals Court of decision equivalent as to state law under Box, Ariz. State 73 P.3d 623 holding Fourth Amendment and that “the process. Maj. does not offend due legality of the depend seizure does not on Op. question at 1235-1237. Neither bears rangers’ authority law”; under tribal on our Fourth analysis. Amendment “the reasonableness of a depends seizure Although argument law”). exclusively on federal focuses on state the issue before us is mind, these principles With resolution not whether the violated Arizona law. appeal turns on the long We have held that “evidence seized in whether, question under the Fourth compliance with federal law is admissible Amendment, Officer Hammarstrom had regard without to state law.” United of a traffic violation Chavez-Vernaza, v. properly Davila relied on in- principle This holds structions from Officer Hammarstrom true where even the evidence was obtained making investigatory stop. I violation of state law. Because United States Cornier, agree majority’s F.3d Cir. with the resolution of this 2000) (“The rule, therefore, general is that question, Maj. concur in the result. See only evidence will be excluded in federal Op. at 1237.

court when it protections, violates federal

such as those contained in the Fourth

Amendment, and not cases where it is law.”). solely

tainted under state

Exceptions general to this rule are limit- admissibility

ed. The of evidence in feder-

al court depends on state law when

the “[federal] constitutional test for deter-

mining legality necessarily of a search” Cormier,

implicates state law. 220 F.3d at Thus,

1112. the Fourth Amendment re-

Case Details

Case Name: United States v. Frank Miranda-Guerena

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 25, 2006

Citation: 445 F.3d 1233

Docket Number: 05-10198

Court Abbreviation: 9th Cir.