UNITED STATES of America, Plaintiff-Appellee, v. Miguel MARTINEZ-CIGARROA, Defendant-Appellant.
No. 93-2232.
United States Court of Appeals, Tenth Circuit.
Jan. 24, 1995.
44 F.3d 908
Mr. Woodall has raised two issues based on the Doran factors. First, Mr. Woodall claims his extradition documents on their face are not in order. Mr. Woodall also contends that he is not the person named in the documents. Both of these claims were thoroughly reviewed and rejected by the district court. We have also reviewed these claims and find no error in the district court‘s opinion.
The denials of the petitions for writs of habeas corpus are AFFIRMED.
Submitted on the briefs: *
Michael G. Katz, Federal Public Defender, and James P. Moran, Asst. Federal Public Defender, Denver, CO, for defendant-appellant.
John J. Kelly, U.S. Atty., and Kelly H. Burnham, Asst. U.S. Atty., Las Cruces, NM, for plaintiff-appellee.
Before SEYMOUR, Chief Judge, MCKAY and BALDOCK, Circuit Judges.
SEYMOUR, Chief Judge.
Appellant Miguel Martinez-Cigarroa was convicted on two counts of transportation of illegal aliens in violation of
I.
On November 20, 1992, United States Border Patrol Agent Jose Alvarado was on roving patrol, travelling south on Highway 185 in Dona Ana County, New Mexico, when he observed a white van travelling north.
Prior to trial, Mr. Martinez-Cigarroa filed a motion to suppress “any and all evidence which arose from the stop of a 1984 Gold Thunderbird, driven by Miguel Martinez-Cigarroa, at milepost 19, on I-25, North of Radium Springs.” Rec., vol. I, doc. 40 at 1. The premise of the motion was a violation of spousal privilege. At the hearing on the motion, however, the district court sua sponte raised the issue of the warrantless stop of the van and the car. The arguments at the hearing focused on this issue. At the conclusion of the hearing, the district court found that the stop of the van was illegal. The court also found that at the time the van was stopped, there was no proper basis for believing that the van and the Thunderbird were in any way connected. In its motion for reconsideration, the government argued that Mr. Martinez-Cigarroa lacked standing to contest the stopping of the van, but that because of the court‘s decision to raise the issue sua sponte at the hearing on the motion to suppress, the standing issue had not been properly presented. The district court agreed and vacated its earlier grant of Mr. Martinez-Cigarroa‘s motion to suppress, ordering that arguments on Mr. Martinez-Cigarroa‘s standing to contest the stopping of the van be heard on April 14, 1993. At that hearing, which was actually held on April 19, the court quickly concluded that Mr. Martinez-Cigarroa lacked standing to contest the stop of the van and denied the motion to suppress. On appeal, Mr. Martinez-Cigarroa does not contest the district court‘s denial of the motion to suppress with respect to evidence obtained from the stopping of the van. Rather, he contends that the notebook found in the gold Thunderbird, containing the names of the illegal aliens found in the van, should have been suppressed because the agents lacked reasonable suspicion to stop his car.
II.
On appeal from the denial of a motion to suppress, we accept the trial court‘s findings of fact unless clearly erroneous, and we consider the evidence in the light most favorable to the government. United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990). Questions of law, including the ultimate determination of the reasonableness of a search under the Fourth Amendment, are reviewed de novo. United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989).
It is settled law that border patrol agents on roving patrol “may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles” are involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975). Here, we are concerned with ascertaining whether this test was met with respect to the gold Thunderbird. Accordingly, we must examine the specific articulable facts and the rational inferences to be drawn from them that might justify Agent Alvarado‘s decision to order the Thunderbird stopped.3 The government cites three articulable facts justifying the stop. These three facts, as found by the district court, are: 1) the car‘s occupant showed an interest in the passing van and the border patrol vehicle; 2) Agent Alvarado observed green out-of-state license plates resembling Colorado plates on the Thunderbird; and 3) Agent Alvarado did not recog-
Here, the first arguably suspicious fact is the interest that the occupant of the Thunderbird allegedly showed in the passing van and border patrol vehicle. This interest is at least equally consistent with the reaction that might be expected from one whose car had broken down and who was hoping for some assistance. Moreover we note Agent Alvarado‘s testimony that the general public shows at least “some” interest in passing border patrol cars. Taking this fact in the light most favorable to the government, however, we conclude that it provides some slight support for Agent Alvarado‘s decision to stop the vehicle. However, we cannot conclude that the other two facts, the out-of-state license plates and Agent Alvarado‘s inability to identify the Thunderbird as a local vehicle, contribute measurably to the analysis. First, they are actually two different formulations of the same fact: a vehicle with out-of-state license plates is by definition not a local vehicle. Second, while out-of-state license plates may be a relevant consideration in some circumstances, see, e.g., United States v. Barbee, 968 F.2d 1026, 1029 (10th Cir.1992), this factor in and of itself is not significantly probative of illegal activity and adds little to the reasonable suspicion equation, see United States v. Monsisvais, 907 F.2d 987, 991 (10th Cir.1990). Therefore, the only arguably significant articulable fact before us upon which the decision to stop the Thunderbird could rationally have been based was the interest shown by its occupant in the passing van and the border patrol vehicle. Even if we add the marginally significant fact that the Thunderbird bore out-of-state license plates, the Brignoni-Ponce test is not met. Consequently, Agent Alvarado lacked reasonable suspicion to order the Thunderbird stopped, and the stop therefore violated the Fourth Amendment. The district court accordingly erred in denying Mr. Martinez-Cigarroa‘s motion to suppress the evidence found in his car.
III.
Having determined that the district court erred in admitting the notebook containing the names of the illegal aliens, we must now consider whether the error was harmless. In performing this analysis, we ask “not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, --- U.S. ---, ---, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); United States v. March, 999 F.2d 456, 463 (10th Cir.1993). We will reverse unless the state can show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Sullivan, --- U.S. at ---, 113 S.Ct. at 2081 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)).
Considering the trial record as a whole, we conclude that the introduction of the notebook was harmless beyond a reasonable doubt. We base our decision on the following evidence. Two of the illegal aliens discovered in the van identified Mr. Martinez-Cigarroa as the man who met them in Mexico to help them enter the United States illegally. One of these aliens testified that
We AFFIRM the judgment of the district court.
BALDOCK, Circuit Judge, concurring.
I concur in this court‘s affirmance of the district court. However, I write separately because I believe the district court correctly found Agent Alvarado‘s stop of the Thunderbird was founded upon reasonable suspicion. I would affirm that finding for the reasons that follow.
This court correctly notes that we must employ a totality-of-the-circumstances approach to determine whether the stop was based on reasonable suspicion. See United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989). Under the totality-of-the-circumstances approach, we consider whether the articulated facts in aggregate support the stop. See id. at 9, 109 S.Ct. at 1586. Even if each fact, viewed separately, “is not by itself proof of any illegal conduct,” the facts considered as a whole may nonetheless “amount to reasonable suspicion.” Id.; see also Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) (noting that “a series of acts, each of them perhaps innocent in itself ... taken together warranted further investigation“). Therefore, in employing the totality-of-the-circumstances approach, we do not “pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious.” United States v. Lopez-Martinez, 25 F.3d 1481, 1484 (10th Cir.1994). Rather, we consider whether the individual facts in aggregate yield reasonable suspicion. Id.
In the instant case, the government articulates three facts in support of the stop: 1) Defendant displayed unusual interest in the van and border patrol vehicle; (2) the Thunderbird bore out-of-state license plates; and (3) Agent Alvarado did not recognize the Thunderbird as a local vehicle.
Purporting to apply the totality-of-the-circumstances approach, this court individually discredits each fact articulated by the government, and ignores the sum of the three. Indeed, this court simply “pigeonhole[s] each purported fact as either consistent with innocent travel or manifestly suspicious,” id., in contravention of the totality-of-the-circumstances analysis. I conclude that each fact supports the stop and, in aggregate, yields reasonable suspicion.
First, this court acknowledges Defendant‘s interest in the van supported the stop. This court characterizes the support as “slight,” however, reasoning that Defendant‘s interest in the van “is at least equally consistent with the reaction that might be expected from one whose car had broken down and who was hoping for some assistance.” Op. at 909. This reasoning is purely hypothetical, however, and discounts the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions. See Sokolow, 490 U.S. at 8, 109 S.Ct. at 1585-86 (law enforcement officers entitled to make “common-sense conclusions about human behavior“) (quoting U.S. v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)); Lopez-Martinez, 25 F.3d at 1484 (“Supreme Court has expressly acknowledged law enforcement officers’ prerogative to perceive and articulate meaning in actions that, to the untrained observer, appear innocuous.“) (citing Brown v. Texas, 443 U.S. 47, 52 & n. 2, 99 S.Ct. 2637, 2641 n. 2, 61 L.Ed.2d 357 (1979)). Based on his experience as a law enforcement officer and his on-the-scene observations, Agent Alvarado determined that Defendant‘s above-average interest in the van was suspicious. Under Sokolow, Agent Alvarado was entitled to draw such a conclusion, and I believe his on-the-scene determination provides much support for the stop.
Next, this court concludes the fact that the Thunderbird bore out-of-state license plates “adds little to the reasonable suspicion equation.” Op. at 909. Further, this court dismisses out-of-hand the fact that Agent Alvarado did not recognize the Thunderbird as a local vehicle. To dismiss both facts, this court subsumes them into one fact saying they “are actually two different formulations of the same fact....” Op. at 910. As a result, this court considers only the Thunderbird‘s out-of-state license plates, which appears rather benign standing alone. This analysis misapplies the totality-of-the-circumstances test.
When both facts are considered together, it is clear Agent Alvarado was properly suspicious of the facts that the Thunderbird bore out-of-state license plates and that he did not recognize the Thunderbird as a local vehicle. These two facts, considered together with Defendant‘s interest in the van, support the stop. See United States v. Leyba, 627 F.2d 1059, 1064 (10th Cir.) (“That the vehicle bore out-of-state plates ... is entitled to some limited consideration because agent Martinez did not recognize the vehicle as local traffic from the area.“), cert. denied, 449 U.S. 987, 101 S.Ct. 406, 66 L.Ed.2d 250 (1980).
In sum, this court purports to apply the totality-of-the-circumstances test. However, in doing so the court gives too little weight to each fact and no weight to the sum of the three. See Lopez-Martinez, 25 F.3d at 1487 (considering facts in isolation “ignores the Supreme Court‘s direction to examine ‘the whole picture‘“). When all three articulated facts are considered together, as they must be under the totality-of-the-circumstances approach, and viewed in the light most favorable to the government, they provide ample support for Agent Alvarado‘s decision to stop the Thunderbird. See Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. at 2582 (driver‘s behavior and aspects of vehicle are factors that may justify reasonable suspicion). Thus, I believe the district court did not err in concluding Agent Alvarado based his decision to stop the Thunderbird upon reasonable suspicion. I would affirm the district court‘s denial of Defendant‘s motion to suppress the evidence found in the Thunderbird. I would therefore not reach the harmless error analysis. I concur in the result.
McKAY, Circuit Judge, dissenting:
I agree with all of the court‘s opinion except Part III. Because I do not believe that the error was harmless, I respectfully dissent.
UNITED STATES of America, Plaintiff-Appellee, v. Joseph NEWTON, Eddie Gregory Batten, Robert Moss, Jr., John Brown, Jr., Grady D‘Vaughn Reddick, Sean Jackson, Robert Jivens, Willie Lee Palmer, Sr., Defendants-Appellants.
UNITED STATES of America, Plaintiff-Appellee, v. Robert MOSS, Jr., Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Grady D‘Vaughn REDDICK, Defendant-Appellant.
Nos. 92-8228, 92-8764 and 94-8376.
United States Court of Appeals, Eleventh Circuit.
Dec. 22, 1994.
As Corrected by Order Dated Jan. 30, 1995.