UNITED STATES оf America, Plaintiff-Appellant, v. Jesus URIBE, Defendant-Appellee.
No. 11-3590.
United States Court of Appeals, Seventh Circuit.
Argued April 11, 2012. Decided Feb. 13, 2013.
709 F.3d 646
Beyond these arguments, Abraitis mentions another tax code provision,
III.
For the above reasons, we AFFIRM.
Michael J. Donahoe (argued), Attorney, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellee.
Before WOOD, WILLIAMS, and TINDER, Circuit Judges.
WILLIAMS, Circuit Judge.
Early one morning, Jesus Uribe was driving along Interstate 70 in Indiana. Apparently, he was not speeding or driving too slowly, weaving recklessly across lanes, crossing the dividing line, or giving any indication that he was intoxicated. Nor is there evidence that Uribe‘s vehicle, a blue Nissan Altima with Utah plates, was in violation of any of Indiana‘s numerous vehicle requirements—no malfunctioning brake lights, improperly tinted window, visibly altered muffler, or expired license plate. Only one aspect of Uribe‘s travel was interesting: the blue Nissan he was driving had a registration number that traced back to a white Nissan. Although this color discrepancy alone is not unlawful either in Indiana, where Uribe was driving, or in Utah, where the car was registered, the deputy following Uribe‘s car initiated a traffic stop “to check for registration compliance.” That stop led to a search of the vehicle, nearly a pound of heroin, and a federal indictment.
Uribe filed a motion to suppress the evidence obtained following the stop, contending that the seizure violated the Fourth Amendment because the deputy had no reasonable suspicion or probable cause to detain him. Although the government offered no evidence to support its objection to the motion, it argued that there was reasonable suspicion that the car was stolen and that its driver was violating Indiana law by operating a vehicle displaying a different car‘s registration number. The district court granted Uribe‘s motion, finding the government‘s explanations insufficient to establish that at the time of the stop the deputy had a reasonable, articulable suspicion that Uribe was engaged in criminal activity.
In this interlocutory appeal, we must determine whether one lawful act in isolation—driving a car of one color with a registration number attached to a car of a different color—gives rise to reasonable suspicion that a driver is engaged in criminal activity. Because on this record, investigatory stops based on color discrepancies alone are insufficient to give rise to reasonable suspicion, we affirm.
I. BACKGROUND
Shortly after two o‘clock in the morning on July 14, 2010, Deputy Dwight Simmons of the Putnam County (Indiana) Sheriff‘s Department was working traffic enforcement and driving behind a blue Nissan Altima traveling eastbound on Interstate 70. When Deputy Simmons performed a Bureau of Motor Vehicles registration inquiry on the сar‘s Utah license plate number, he received information for a white 2002 Nissan. In his narrative arrest report, Deputy Simmons stated that he initi
After Deputy Simmons pulled the car over, he observed that the driver, Jesus Uribe, apрeared nervous. Eventually, another officer arrived with a canine, which gave a positive alert. Uribe gave Deputy Simmons permission to search the vehicle, and the officer with Deputy Simmons found two packages containing nearly a pound of heroin. Uribe was indicted for possessing with intent to distribute 100 grams or more of heroin, in violation of
Uribe moved to suppress the heroin, arguing that Deputy Simmons did not have reasonable suspicion tо perform the traffic stop based on the color of the car alone. He also argued that no Indiana or Utah law requires car owners to amend their vehicle registration information to reflect a change in car color. So, according to Uribe, there was no reasonable suspicion for the stop. Uribe did not challenge the execution of the search or the validity of his consent to it.
The government did not requеst an evidentiary hearing or submit an affidavit to put Deputy Simmons‘s additional observations, suspicions, and experience in the record. (Uribe attached Deputy Simmons‘s post-arrest narrative to the motion to suppress.) Nonetheless, the government responded to Uribe‘s arguments by contending that Deputy Simmons‘s twelve years of experience taught him that stolen cars are often repainted to evade detection. The government also argued that because Indiana prohibits operating a vehicle with a registration number belonging to any other vehicle, Deputy Simmons could have reasonably suspected that Uribe was committing a registration violation.
The district court granted Uribe‘s motion to suppress, finding that the record did not support Deputy Simmons‘s alleged knowledge that stolen cars are painted different colors. The court also concluded that the Indianа traffic code provision the government cited only applied to vehicles registered to Indiana residents. The district court denied the government‘s motion for reconsideration and its belated request for an evidentiary hearing, deciding that the government was not entitled to a second chance after failing to meet its burden on the motion to suppress. This interlocutory appeal under
II. ANALYSIS
When reviewing a district court‘s decision on a motion to suppress, we consider questions of law de novo, the district court‘s determinations of reasonable suspicion and probable cause de novo, and questions of fact for clear error. Ornelas v. United States, 517 U.S. 690, 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Brown, 232 F.3d 589, 591-92 (7th Cir. 2000).
An investigatory stop complies with the Fourth Amendment if the brief detention is based on reasonable suspicion that the detained individual has committed
Deputy Simmons‘s post-arrest narrative seems to identify only one fact that led him to conduct the investigatory stop: a discrepancy between the observed color of the car Uribe was driving and the color indicated on the car‘s registration. Both parties acknowledge that the color discrepancy itself was lawful, because neither Indiana nor Utah requires a driver to update his vehicle registration when he changes the color of his car.
In addition to the color discrepancy, the government argues that the timing of the stop—just after two o‘clock in the morning—raises the level оf suspicion.2 The government did not present any evidence of Deputy Simmons‘s experience and expertise or of any officer‘s belief that the context of the stop made its timing suspicious.
From the record, we conclude that the timing of the stop in this context does not raise suspicion. Uribe‘s vehicle3 was not, for example, exiting a scene following gunfire via the only available street, nor was Uribe acting suspiciously in an area known for criminal activity. See United States v. Brewer, 561 F.3d 676, 678 (7th Cir. 2009) (finding the timing of a stop suspicious because it “reinforced the suspicion [that the vehicle was connected to reported gunfire] since few people are on the road at 2:30 a.m. and ... there was no other traffic” leaving the apartment complex immediately after the gunfire); see also United States v. McHugh, 639 F.3d 1250, 1257-58 (10th Cir. 2011) (finding reasonable suspicion based on an early-morning detention in an area known for criminal activity, information from an armed private security officer and a police dispatcher that the defendants were suspected of having a weapon in their vehicle, and a report from the security guard about the defendants’ suspicious behavior prior to the detention); United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993) (finding reasonable suspicion when officers observed the defendant appearing to engage in a hand-to-hand drug
Uribe‘s motion to suppress presents an issue of first impression in this circuit and, apparently, in the federal courts: whеther a discrepancy between the observed color of a car and the color listed on its registration alone is sufficient to give rise to reasonable suspicion of criminal activity. Where our sister circuits have considered color discrepancies, they have relied on the discrepancy as only one of several factors establishing reasonable suspicion.4
Although it appears that no federal court has addressed the exact issue presented in this case, several state courts have done so. In Andrews v. State, a Georgia appellate court held that it was reasonable for an officer to infer from a color discrepancy that a car‘s license plate had been switched in violation of Georgia law. 289 Ga. App. 679, 658 S.E.2d 126, 127-28 (2008); see also Aders v. State, 67 So.3d 368, 371 (Fla. Dist. Ct. App. 2011) (finding a color discrepancy sufficient to create a reasonable suspicion that a driver committed a second-degree misdemeanor by improperly transferring a license plate). An Indiana appellate court found that a color discrepancy supported reasonable suspicion that a “vehicle had a mismatched plate, and as such, could be stolen or re-tagged.” Smith v. State, 713 N.E.2d 338, 342 (Ind. Ct. App. 1999).
State cases have also come out in the other direction. In Commonwealth v. Mason, a Virginia appellate court determined that color discrepancy alone is insufficient to establish reasonable suspicion bеcause “the benefit gained from stopping individual vehicles based solely on a disparity in the color listed on the vehicle‘s registration ... is marginal when compared to the constitutional rights of drivers and their passengers who are seized during such a stop.” No. 1956-09-02, 2010 WL 768721, at *3 (Va. Ct. App. Mar. 9, 2010) (unpublished decision) (internal quotations omitted); see also State v. O‘Neill, Nos. 06-S-3456, 06-S-3457, 2007 WL 2227131, 2007 N.H. Super. LEXIS 2, at *8 (N.H. Super. Ct. Apr. 17, 2007) (unpublished decision) (because the color discrepancy violated no lаw, the officer “could not possibly have suspected the defendant of any criminal wrongdoing“).
A. No Reasonable Suspicion of Vehicle Theft
The government first contends that Deputy Simmons‘s investigatory stop was
Perhaps most importantly, the government provided no information on the correlation between stolen vehicles and repainted ones. We do not know whether ninety-nine percent of repainted cars are stolen, which would suggest a color discrepancy is highly probative of criminal activity, or whether less than one percent are, which would suggest a color discrepancy is completely innocuous. As we weigh Uribe‘s Fourth Amendment rights against the benefits of using investigatory stops to catch car thieves and recover stolen vehicles, these numbers matter. Without them, we cannot conclude that a color discrepancy alone is probative of wrongdoing without the risk of subjecting a substantial number of innocent drivers and passengers to detention. See Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (no reasonable suspicion where “circumstances describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little fоundation as there was in this case could justify a seizure“).
Although we focus on an “innocent” color discrepancy, ultimately “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Our review of the totality of the circumstances here leads us to conclude that no reasonable suspicion of vehicle theft attaches to а completely lawful color discrepancy in the absence of any evidence suggesting otherwise. In light of that conclusion, Deputy Simmons‘s decision to stop Uribe‘s vehicle lacked reasonable suspicion that the vehicle was stolen.
B. No Reasonable Suspicion of Registration Violation
We turn next to the government‘s argument that Deputy Simmons could have believed that Uribe was in violation of an Indiana vehicle registration requirement.5 As we discuss below, the government has not shown that the rеquirement applies to Uribe‘s Utah-registered vehicle.
In Delaware v. Prouse, the Supreme Court held that a police officer may stop a vehicle when the officer has “at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law.” 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). However, a registration compliance check without any suspicion of criminal activity violates the Fourth Amendment. Id. (in the absence of articulable and reasonable suspicion, “stopping an automobile and detaining the driver in order to check his driver‘s license and the registration of the automobile are unreasonable under the Fourth Amendment.“). Even when reasonable suspicion exists, the Supreme Court is wary of the compliance-check rationale because “[m]any violations of minimum vehicle-safety requirements are observable,” and license plates are “themselves evidence that the vehicle is properly registered.” Id. at 660, 99 S.Ct. 1391; see also id. at 660-61, 99 S.Ct. 1391 (finding that randomly stopping registered vehicles for “document checks” is not “necessary in order to ascertain compliance with the State‘s registration requirements“).
The government suggests that Deputy Simmons could have believed that Uribe was violating
The government‘s analysis is noticeably incomplete because the first part of the very provision it invokes limits the prohibition to vehicles “required to be registered under [Article 18, Chapter 2].”
Chapter 2 requires the registration of motor vehicles that “(1) are subject to the motor vehicle excise tax under [Section] 6-6-5; and (2) will be operated in Indiana,”
The problem with the government‘s argument is that there is no evidence that a vehicle registered in Utah is subject to
The government simply has not shown that
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s decision granting Uribe‘s motion to suppress.
Notes
On 7-14-10 while working traffic enforcement on I-70, Deputy Simmons of the Putnam County Sheriff‘s Office[] was traveling eastbound in the vicinity of the 45 mile marker behind a blue Nissan Altima[] bearing Utah license plates. Deputy Simmons performed a BMV registration inquiry on the license plate, аnd received a return on a white 2002 Nissan. Deputy Simmons initiated an enforcement stop of the vehicle in the vicinity of the 48 mile marker, to check for registration compliance.