United States v. Mario Alonzo Millan
36 F.3d 886
9th Cir.
1994
Check Treatment

*1 Both Custis and the commentary to the

Sentencing Guidelines have noted § independent 851 confers an statuto

ry right collaterally prior to attack felony convictions when the defendant is convicted Custis, § at -, 841. comment, 1737; 4A1.2, § S.Ct. at U.S.S.G. (h. 6). § Thus under Burrows was enti challenge

tled to drug felony convictions

relevant under 841. But because the sen

tence the imposed district court was the sen computed

tence under the Guidelines rather

than the computed sentence under the stat ute, point is moot. See United States v. Cir.1990),

McDougherty, rt.

ce 1119,

We remand the case to district court so the court consider whether a down- departure

ward youthful based on lack of

guidance is warranted. affirm in We all respects.

other PART;

AFFIRMED IN REMANDED

IN PART. America,

UNITED STATES of

Plaintiff-Appellee,

Mario MELLAN, Alonzo Defendant-

Appellant.

No. 93-10641.

United States Court Appeals,

Ninth Circuit.

Argued Aug. and Submitted

Decided Oct. *2 presented the other issues Millan’s

reach appeal, requires legal- us to

This case consider ity discovery to the of a traffic which led of evidence of more serious crime. Ne- stopped vada Patrol officer who Millan, Roll, Kenneth trained been “Highway Program.” Interdiction NHP’s Magistrate Judge initially de- The U.S. suppress evi- Chief, cided Millan’s motion to heard Lambrose, Asst. Public De- John program that it is NV, dence on this and found defendant-appel- fender, Vegas, Las for lant. designed promote appre- detection and transporting contra- hension individuals Schiess, Atty., Las Asst. U.S. Daniel R. highways. troop- NHP band on Nevada’s NV, plaintiff-appellee. Vegas, for assigned program ers to the attended specialized training seminars at which tactics, including highway interdiction recognition “in- observation and of certain FLETCHER, HALL and Before: carrying dicators” that an automobile was WIGGINS, Judges. Circuit contraband, Program par- were studied. taught actively look for ticipants were FLETCHER; by Judge Opinion vehicle, stopping a these indicators when by Judge HALL. Concurrence developing a means of and to use them as necessary suspicion” the “reasonable FLETCHER, Judge: investigatory of the vehicle’s detention on appeals his conviction Mario Millan occupants. possession of charges relating to his unlawful ER at 182. Pursuant to this concerted effort firearm, docu- counterfeit identification interdiction, troopers were highway NHP ments, immigration docu- and counterfeit patrol on officers accompanied sometimes argues that all evidence seized ments. He of law enforcement. from other branches sup- a traffic should be pursuant Millan, Trooper Roll was During his independent rea- number of pressed, for a patrol car Lennie La- accompanied in his that the sons. He claims russo, Vegas police temporarily a Las not have the officers would pro- assigned to the to search for evi- him over absent a desire gram. Larusso had no enforcement claims crime. He also dence of more serious along solely for in- responsibilities, requisite reason- lacked the that the officers purposes. terdiction suspicion question him about criminal able 13, 1993, Roll and Larusso were March On the minor con- matters not related to Vegas of a heading Las at the end back to stopped. allegedly was He cern for which he Audi, they they overtook a silver shift. As voluntarily that he did not further contends a cracked front the ear had noticed finally He to the search of his car. consent it, they pulled in behind windshield. As in refus- argues court erred that the district mph. They mph to 42 slowed from 55 concerning driver proffer his of evidence flashers, pulled over. and the car put on their thirty-two other indi- racial characteristics of question. officers in viduals spoke to the approached the Audi Roll driver, Millan had rolled down Mario Millan. of Mil- reverse and remand. We inches, but com- only about four recov- his window and all evidence pretextual, lan was request to roll it down Roll’s plied fruit” and pursuant to it was “tainted ered way. said the smell need not rest suppressed. We should have been (18 alcohol emanated from the car’s interior. feit identification document counts gave 1546(a)). Roll a 1028(a)(6), §§ Millan driver’s license and car He filed a motion to registration Jorge Vasquez; in the name of suppress all evidence seized as a result of the Roll found the documents to be order. stop which he pretextual. claimed was A *3 During exchange, Roll looked into the magistrate judge recommended that the mo- passenger car. He a observed and some- tion be and the adopted district court thing that looked like a beer can at this recommendation and denied the motion. feet, passenger’s and noted that the back pled guilty Millan then to all six counts of the seat had been detached from the floor of the indictment, reserving right appeal his to car and position. was somewhat out of suppress. denial of his motion to He was twenty-seven sentenced to impris- months of

Roll asked Millan where he had come from onment. going. and where he was Millan said he had

just dropped job off his wife at her in a casino in the town of Stateline. Millan could II

not remember the name of the casino or the shift changed pretextual worked his wife. stop He then doctrine is not story, saying his coming he was from Bar- meant to inhibit the use of evidence discover stow, California, visiting where he had been serendipitously during ed legitimate traffic friends. Rather, stops. pretextual stop “‘[a] occurs police legal justification when the use a get Roll then asked Millan to out of the car stop make the person order to search a or perform sobriety a test. Millan com- place, interrogate or to person, a for an plied, passed the test. Roll then decided unrelated serious crime for which do not give warning Millan a rather than a cita- suspicion have the necessary windshield, tion for the cracked and to warn ” Cannon, support stop.’ United States v. him open not to drive with alcohol containers 472, Cir.1994) 29 F.3d (quoting However, in the car. suspicious still Guzman, United States v. 1512, 864 F.2d illegal activity, other Roll asked if Millan he (10th Cir.1988)).1 Our circuit’s easelaw any weapons, drugs, money in the car. entirely has not been consistent in the it Millan gun passen- said he had a under the Cannon, applied pretext. has to determine ger seat. Larusso asked passenger 29 F.3d at 475-76. employ Some cases get out of the ear. He then retrieved the “subjective” stop pretextual test: a is if “the gun. provided apparently Millan an valid motivation or purpose of the arrest registration firearm card the name of officers” is to use order to Jorge Vasquez. search for evidence of an unrelated crime. point At this Roll asked if Millan he could Mota, United States v. 982 F.2d search the ear. Roll and Larusso testified (9th Cir.1993) (quoting United States v. something “sure, Millan said go like Smith, Cir.1986)). ahead.” Larusso searched the car and found “objective” Recent cases utilize an test: a envelope uncut, containing sheets of blank unless a “reasonable offi resident alien security cards and social cards. “ cer,” given circumstances, the same “would subsequently Officers “Jorge discovered that stop anyway, apart have’ made the from [his Vasquez” was a false name and that Millan or her] about other more serious illegally in the United States. 476; criminal 29 F.3d at Millan was indicted on March 1993 for Bowhay, possession unlawful of a firearm as an alien (9th Cir.1993). pre We find the here (18 (Id. § 922(g)(5)) U.S.C. and as a felon inquiry. textual under either § 922(g)(1)), making for a false statement in (Id. purchasing gun 922(a)(6)), § illegal magistrate judge made several find- (8 reentry 1326), ings and two counter- supported by that are the officers’ testi- Supreme proscribed The U.S. pretext Court has never to search for evidence.” United States v. stops, 452, 467, pre- Lefkowitz, but has condemned textual "[a]n arrests: arrest not be used as a 76 L.Ed. 877 First, Audi intro- B. “photographs of the mony. suppression hearing reveal that at the

duced We reach the same conclusion under windshield, cracked, while car’s “objective” employed standard in Can extensively damaged.” Magistrate no means government 29 F.3d at 475-76. The Judge’s Report and Recommendation argues that because of cracked wind Millan’s Larusso, Second, route to their Roll and “en shield, any made have been workday, decided to at the end of offices way, even absent desire to search only be car for what can stop Millan’s However, government has Id. contraband. a minor violation.” deemed Third, suggested not initially that driving failed to establish with a cracked Larusso, by metro Roll but illegal Compare, in Nevada.2 windshield *4 responsibilities enforcement has “no traffic (officers e.g., suspect 29 F.3d at 476 1-15,” duty on and whose “main as a trafficking, of but ed defendant narcotics at 7-8. is interdiction.” Id. officer stop anyway have made the would because findings, magistrate the Based on these suspended was li defendant with a to that “the officers’ decision judge concluded law); of cense in violation California predominantly car was driven stop Millan’s Lillard, 500, 929 v. F.2d 502 States Pro- by [Interdiction] a desire farther Cir.1991) (officer suspected defendant of interdiction, rather gram’s goal highway of activity, drug-related but have by a or vehicle than desire enforce traffic anyway, over because defendant defendant supplied). 8 safety (emphasis laws.” Id. at “speeding carelessly in of Ore violation law”). gon government Nor has the estab A. actually ap lished that Millan’s windshield record, Upon of we con review the Indeed, to the peared unsafe officers.3 findings magistrate judge’s of clude that the safety that Roll Millan for possibility Mota, clearly fact are not erroneous. See by the severely reasons alone is undermined (court appeals 982 of reviews for F.2d at 1386 judge’s magistrate finding that the wind findings factual clear error district court’s “by extensively no dam shield means claim). However, stop regarding pretextual aged.” ER 187. disagree agree findings, with the we while we of magistrate judge’s conclusions Moreover, stop suggested not He found that the officers’ law. Roll, city trooper, by the but rather purpose stopping in Millan was a desire officer, Larusso had interdiction Larusso. engage in than a interdiction rather that the no traffic-related duties. The fact violating Millan was concern that initiating stop the traffic had narcotics safety creating a hazard. Under our laws or interdiction duties but no traffic enforcement cases, “subjective finding intent” auto pointing additional toward duties is an factor matically brings the definition within the States, Taglavore pretext. v. United (stop pretextu of “pretextual.” Id. is (9th Cir.1961) (fact 262, 265 that officer F.2d arresting “primary purpose al if of the appellant traf- caused to be arrested for making to search for officers” is squad rather fic violation was vice crime) (emphasis evidence of more serious policeman than traffic contributed supplied); see also United States v. Gutier Indeed, pretext). but for the (9th Cir.1992) rez-Mederos, F.2d program, Larusso would not have been test), (applying same cert. pres- (1993); place; ear in the first Larusso’s Rob’s -, 113 S.Ct. L.Ed.2d 702 (same). Smith, conclusion supports at 1124 in the car thus ence may they government's stops make if observe a safe- citation 484.619 3. Officers to N.R.S. Prouse, ty hazard. Delaware unconvincing. merely is states that That section 1391, 1399-1400, L.Ed.2d 660 99 S.Ct. place large posters decals on drivers (1979). ask, they may questions The nature of the their front windshields. course, purpose circumscribed stop. citing interdiction rather than traffic U.S. goal. (1981); violators was the officers’ Valdez, Cir.1991) (evidence 1451-52 re- To these factors must be added the fact during covered search consensual conducted Roll, unlike most Nevada Pa- pretextual stop after excluded as fruit of officers, special trol training received illegal stop). Program. Nevada’s Interdiction Roll testi- fied that in Program, the Interdiction “we’re REVERSED and REMANDED. to ... trained make a traffic to see if subject maybe committing a crime.” ER HALL, CYNTHIA HOLCOMB (emphasis at 17 supplied). The interdiction Judge, concurring: training received officers Roll and Larus- I panel’s concur in the conclusion that the so possibility thus increases the stop of that, Millan’s car was pulled Millan over not for a “minor result, aas all evidence obtained as a result violation,” but of their must suppressed. be write possible contraband.4 separately, however, because I believe that Considering together, these facts we con- majority’s discussion of the clude that officers in Roll’s doctrine, *5 in II opinion, Part of its mis- places Larusso’s would not have Mil- states and misapplies Ninth Circuit law. For . windshield, Ian because of his absent a desire reason, join this I do in not Part II of the to search for evidence of more serious crime. panel opinion. The pretextual was therefore under the objective majority’s The employed test in statement Cannon. cir- “[o]ur

cuit’s caselaw has entirely not been consis- in tent the applied test it has III. determine pretext,” Majority Opinion at is accurate consequence finding of the stop only up point. to a It is true that some is that tainted evidence must be Ninth Circuit past eases have in the been States, Wong excluded. v. United Sun 371 interpreted mandating subjective as inqui- 471, 487-88, 407, 417-18, U.S. 9 ry into officers’ intentions when ana- (1963). L.Ed.2d 441 question we must lyzing claim, “ whereas oth- “whether, granting ask is establishment of applied objective, ers “reasonable officer” primary the illegality, the evidence to which Any test. inconsistency, however, was recon- objection instant is made has been come at ciled by exploitation illegality of that instead (9th Cir.1994). 472 sufficiently means distinguishable to be ” purged of the taint.’ surveyed Cannon the pre- Ninth Foppe, States v. F.2d cases, textual as well as those of other Cir.) Sun, (quoting Wong at opinion 83 circuits. The noted that “[s]ome of 417), denied, U.S. -, S.Ct. at cert. language 114 our implied has subjec- that [the] S.Ct. inquiry required,” Because tive id. but went interrogation the and search were a direct on to hold that prior the cases were in fact result illegal stop, of the we hold that all of objective consistent with the Specifical- test. See, the suppressed. evidence must e.g., ly, be Cannon squarely held that when faced (confessions id. photospread and identifica- with a claim that a pretextu- was search); tion illegal al, excluded as of fruit Unit inquire “courts should whether a reason- Chamberlin, ed States able officer ‘would stop any- have’ made the (9th Cir.1980) 1267-68 (testimony regarding way, apart [his from or her] defendant’s demeanor nervous excluded as other more serious criminal Id. at illegal detention), fruit of (internal cert. quotes original). objec- This pretext Taglavore Just as the presumption undermines the usual that a supported by stopping fact officer Highway Patrol primarily officer is concerned squad awas vice member rather than a traffic enforcing with the traffic laws. policeman, Program here the Interdiction train- Cir.1991) (reasonable present inquiry our test limits tive carelessly “speeding stop motorist would ease. law”). present In Oregon in violation Circuit on law of Ninth is the Cannon case, and Roll the fact Larusso it is overturned and until issue. Unless training had interdiction is not relevant have court, apply are bound we by the en banc deciding whether a I cannot objective that it mandates. test a cracked wind- a motorist with therefore, majority’s analysis with agree, Moreover, program the interdiction shield. case, uses both which present of the plan the Nevada is not an evil or sinister subjective After Can- tests. objective and Patrol, an effective and lauda- but analysis simply irrele- subjective prevent traf- means for Nevada to ble vant. ficking highways. I therefore find that on its majority opin- further issue with I take objec- majority’s of the of the discussion part analysis and statement facts ion’s inappropriate. be tive Majori- “objective” in its section. facts those 887-88, Officer Opinion at ty reasons, 889-90. I concur in the For the above pulled Millan allegedly Larusso Trooper panel opinion, with the judgment and in the windshield that his noticed over of Part II. exception majority that agree with the cracked. does a cracked windshield illegal Nevada law appear to be Majority stop. support the cannot

therefore Further, Magis-

Opinion at 889 & n. windshield Judge found that Millan’s

trate extensively damaged,” “by [so] no means *6 officer would have a reasonable

ER and it a considered hazard TRUST CORPORATION RESOLUTION This on that basis. car over RECEIVER OCCIDENTAL AS FOR v. clearly See United States erroneous. BANK, F.S.B., SAVINGS NEBRASKA Cir.1993). Bowhay, 992 F.2d Plaintiff-Appellant, alone, I would these the basis of facts On v. that a reasonable hold therefore Millan, “apart from not have CORPORATION, a TITAN FINANCIAL more seri- suspicions about other [his her] Corporation; Frances California 29 F.3d at ous criminal Defendants, Pikush, 476. and however, on, majority goes to discuss suggested fact Defendant-Appellee. Sellan, Gilbert officer, Larusso, city and a interdiction 92-15419, 92-16194. Nos. had been trained in facts program. These additional Appeals, Court United States objective test irrelevant Cannon’s are Ninth Circuit. stop made suggest that might Sept. Argued is for that and Submitted by an interdiction-trained view, my this is suspect. In alone reason Oct. Decided test. misapplication of the Cannon objective focuses on the The Cannon a reason- suspect whether

conduct stop when make a traffic officer would

able See, e.g., Can- with such conduct. confronted (reasonable officer would 29 F.3d at 476 suspended motorist Lillard,

license); States