United States v. Pedro Pablo Hernandez
55 F.3d 443
9th Cir.
1995
Check Treatment

*1 We do not against defendants. relief attorney’s fees under the issue

reach attor- but two VACATE U.S.C. 13,1993, and fees dated October ney’s orders district court matters to the REMAND those light decisions for reconsideration appeal. PART, REVERSED IN IN AFFIRMED PART, PART, and RE- IN VACATED MANDED. party shall its own costs.

Each bear America, STATES of UNITED Plaintiff-Appellee, HERNANDEZ, Pedro Pablo Defendant-Appellant.

No. 94-30109. Appeals, United States Court Ninth Circuit. 9, 1995.* Feb. Submitted May Decided * 34(a); Fed.R.App.P. Cir.R. 34—4. agrees 9th panel unanimously that this case is ment. This argu- without oral appropriate for submission *2 HALL,

CYNTHIA HOLCOMB Circuit Judge: upon

We are called to decide whether the police alleged parking used an violation as pretext to search for evidence of an unrelat- ed, more serious offense. We hold that the was and the district by failing suppress court erred the fruits search.

I. arrest,

At the appellant time of Pedro parole on. prison from state felony drug for a conviction. He attracted police, the attention of local who were aware of his conviction and suspected that he once (cid:127)again illegal drug activity. was involved in High-

Officer Lon Bomar of the Montana way patrolling Patrol was Interstate 90 when he driving noticed Hernandez a Chevrolet car a frontage parallel on road to the inter- suspected state. Officer Bomar that Her- speeding nandez was but could not clock his speed, so he turned off the interstate and frontage him followed road. spotted Officer Bomar Hernandez’s Chev- parked rolet unpaved on Scott just street off the interstate. It was behind a Cadillac in which Hernandez man Anthony later identified as Kim Mar- tinez sitting. were Both ears were on street, right hand side of the within a foot growing along or two of some bushes side blocking of the road. The cars were not - traffic; plenty of room remained pass. pulled vehicles to up Officer Bomar Hernandez, Jose, CA; Arturo San Santia- Chevrolet, behind Hernandez’s turned on his Juarez, NM, go E. Española, for defendant- flashers, emergency backup, called for appellant. left investigate. his vehicle to later He testi- fied he wanted “to if there see Richter, Atty., Klaus Billings, P. Asst. U.S. parked- roadway, reason MT, for plaintiff-appellee. if one of down vehicles broken in need

w[as] of assistance.” why Officer Bomar asked Martinez he was parked there. said Martinez that he and WRIGHT, HALL, WIGGINS, just Before: Hernandez had met to talk. Officer Judges. Circuit Bomar park- decided to cite both vehicles

ing violations. He later admitted that he had Opinion by HALL; Judge by Dissent no detain or other cause to Judge WIGGINS. two men. residence, arrived, backup collected at his should have been Bomar’s

When suppressed the fruit of an two men and search questioned officers $4,700 They agree. found and seizure. We their vehicles. searched cash, pounds of mar- approximately fifteen analysis prem begin from the *3 handgun later loaded which ijuana, and a pretextual stop our doctrine ise that They decided to be stolen. then turned out serendipitously prohibit the use of evidence residence, they Hernandez's where to search legitimate stop. of gathered as a traffic appeared to match ammunition that found “ Rather, stop the pretextual ‘[a] occurs when gun amount of and a substantial the stolen legal justification a police use to make the cash. place, a or person in order to search grand jury indicted Hernandez A federal interrogate person, a to for an unrelated possess conspiracy to with count of on one for which do not have the serious crime marijuana in violation of to intent distribute necessary support a reasonable to 841(a)(1) §§ and 18 846 and U.S.C. 21 U.S.C. Cannon, stop.’” v. 29 F.3d United States (Count I), possession one count of § 2 (quoting 474 United marijuana in of distribute violation intent to. Guzman, (10th 1512, 1515 States v. 864 F.2d 841(a)(1) § § 18 2 and U.S.C. 21 U.S.C. Cir.1988)). (Count II), a possession count of fire- one examining subjec in the drug trafficking crime Rather than during a viola- arm officers, 924(c)(1) (Count III), ap § tive motivations individual we 18 tion of U.S.C. objective to being possession ply of a an “reasonable officer” test a felon one count particular stop pret 922(g)(1) § 18 determine whether a in violation of U.S.C. firearm Cannon, IV).1 (survey (Count F.3d at extual.2 29 475-76 concluding ing case Ninth Circuit law suppress to the evi- Hernandez moved pretextual employs doctrine an our dence, claiming that the searches violated test). objective objective focus rights. The district Fourth Amendment officer, a facts and ask whether reasonable juryA found him court the motion. denied have, circumstances, given made would I court sen- guilty on Counts and IV. The investigate a to an absent desire supervised him 120 months and a tenced to 476; serious offense. Id. at Guz unrelated years. appeals. He term of four now release g man, (citin F.2d at 1517 United States 864 Cir.1986)). (11th Smith, 799 F.2d 709 II. help making inquiry, often find we stop conformed' initial ful to determine whether the contends that Hernandez Cannon, police practices. 29 regular to See officer Bomar used because Guzman, 476; at 864 F.2d 1518 parking pretext to F.3d at alleged an infraction a (remanding in for determination of whether drug of Hernandez’s search for evidence routinely police stop seat belt argues New Mexico He that all evidence volvement. violators). stop, as during the well as later found suggestion contrary Any to in United States I II was named in counts 1. Martinez guilty (9th Cir.1994), pled Martinez and later same indictment. is beside 36 F.3d 886 at Hernandez’s as a witness testified of the Mil- point, because all three members trial. pretextual stop analyzed issue ac- lan Court cording standard and to the "reasonable officer” officer, subjective of them- intentions of an The objec- question was concluded that selyes, legitimate stop an do turn a into 889-90; 890- tively pretextual. at id. at 36 F.3d stopA is' search and seizure. unconstitutional J., Similarly, (Hall, concurring). although the stopping se- because the Perez, majorhy 37 F.3d 510 States v. in.United hopes greater wrongdo- cretly to find evidence (9th Cir.1994), confusing, it found the case law rather, ing; stop pretextual a because facts pretextual stop inquiry analyzed accord- also suggest a a officer would of case reasonable ing objective stan- "reasonable officer” to pursued the minor offense absent not have “any (concluding that reason- Id. at 513 unrelated, dard. serious more desire stop under the Cannon, 474; Guzman, made the able officer would have 29 F.3d at offense. here”). present circumstances F.2d at 1517-18. government argues police absolutely The duced at trial make clear that stopped would have Hernandez to cite him Scott is located within Street dis- business violation, parking even absent desire contemplated by trict as Mont.Code Ann. argument to search for contraband. This § 61-1-408. fails because no reasonable officer would Although accept we the district suspected have that Hernandez was court’s that Scott Street located illegally law. under Montana district, agree with'in a business we cannot Martinez were cited with the district court’s conclusion 61-8-353, violating Mont.Code Ann. Becker, was not See provides, part: which in relevant novo). (reviewing legal at 1539 conclusions de *4 highway Upon any or outside a business of presume We must that a reasonable officer person stop, residence district no shall the charged enforcing. knows law he is with vehicle, park, standing any or leave wheth- not prohibit parking Montana law does on unattended, upon er or paved attended the the side of a street in a business district. No part highway main-traveled of the when stop reasonable officer would a motorist for practical stop, park, it is to or so leave illegally parking on a street outside a off highway, such vehicle such of said district when parked business the motorist is every in but event an unobstructed width “right gov next to” several businesses. The highway opposite standing of the a vehicle legitimate ernment has offered no other rea passage shall be left for the free of other and, stop son for the reviewing after vehicles. record, we find none. 61-8-353(1) (em- (1993) § Mont.Code Ann. circumstances, only Under these we can added). terms, phasis By its very provi- this conclude that a in reasonable officer Bomar’s applies only parked sion to on vehicles a position stopped would not have “highway a outside of business or residence a suspicions absent desire to added). not, (emphasis district.” Id. It does illegal drug activity. We therefore hold words, in apply other parked to vehicles pretextual. See United within a business or residence district. (9th 886, v. F.3d States 36 889 Cir. district court The found that Hernandez 1994) (concluding driving that traffic parked squarely and Martinez their vehicles with pretextual a cracked windshield was by within business district as defined prohibit state law did driving because finding motor vehicle code.3 This is not a cracked windshield and

n clearly erroneous. See United States v. any legitimate did not establish reason Becker, 1537, (9th Cir.1994) 23 F.3d 1539 Lillard, stop); v. United States cf. error). (reviewing findings factual for clear 500, (stop 929 F.2d 502 was not B suppression Officer ornar testified at the pretextual though because even officers sus hearing that the parked “right vehicles were pected drug trafficking, they defendant of ... Salvage” next to Louie and Dean’s Truck stop anyway would have made the because addition, Frank, on Scott Street. Leslie carelessly speeding defendant was in viola managed who Salvage Orr’s Truck on Scott law). tion of state Schmid, and James a local business- man, described Scott by Street as an industrial We are not dissuaded fact district, with up actually various businesses located illegal Hernandez was in involved “[Tjhere drug activity. down the street from nothing where the vehicles is new in the parked. Finally, were photographs intro- realization that the Constitution sometimes purposes, The district court found that including ‘‘[t]he vehicles business or industrial roadway hotels, banks, on a next ato business but not limited to or office property.” stations, buildings, public railroad build- ings Montana’s motor vehicle code a "busi- defines occupy at which least 300 feet of front- ness district” as: age collectively side or on one 300 feet on territory contiguous including [T]he to highway. both sides highway any along when within feet 600 (1993). § MontCode Ann. 61-1-408 highway buildings such there are in use for

447 necessarily criminality of few in order to render invalid. insulates If a have’ privacy of us all.” Arizona v. reasonable officer ‘“would made protect 329, 1149, 321, Hicks, anyway,” 107 it is not 480 S.Ct. See U.S. J.). (1987) Cannon, (Sealia, 472, 476 United States F.3d 94 L.Ed.2d (9th Cir.1994). consequence finding that the The case, pretextual In this was not all tainted evi because a reasonable officer would have Wong must excluded. Sun Uni dence be stopped Hernandez and Martinez based on States, 471, 487-88, 371 U.S. ted S.Ct. his articulable (1963). 417-18, 9 L.Ed.2d 441 We conclude illegally, under Mont.Code Ann. 61-8-353 interrogation of Hernandez and (making illegal park highway out subsequent all searches result Martinez and district). side a business or residential directly pretextual stop.4 from the All ed majority’s contrary The conclusion rests on gathered aas result was tainted evidence alleged its that the offense occurred suppressed. have been See Mil should district,” in a did “business and thus lan, (excluding all at 890 evidence fact violate the statute. The error state search). the “fruit” of an that was analysis that it that a “rea assumes *5 so hold.5 only when sonable officer” will make and REMANDED. REVERSED prop the law in has been violated. The fact - however, question, er is not whether WIGGINS, Judge, dissenting: Circuit correctly that an offense has believes committed, has been but whether the officer respectfully Contrary I to the dissent. suspicion an articulable to believe an offense majority, I that the initial conclude been has committed. United States v. Mil vehicle was not Be- Hernandez’s lan, by majority, supports cited this view. subsequent cause I also conclude that stop pretextu In court found of Hernandez’s vehicle and resi- searches test al under the “reasonable officer” where permissible, and that sufficient dence were that had established neither supported Hernandez’s conviction evidence (driving the defendant’s conduct II, judgment I would affirm the on count windshield) illegal nor cracked that the district court. “actually appeared windshield’s condition notes, majority 'prior As the cases 886, 889-90 to the unsafe officers.’'1 prop demonstrate some confusion about the added). (emphasis Millan determining er whether a is test for. objectively implies may thus that a be pretextual. Op. 445-46 & n. 2. Even assum (and non-pretextual) where thus reasonable majority ing correct that this circuit identify apparently unsafe condi officers an test, objective applies an “reasonable officer” tion, actually if is not even the condition however, majority misap I believe the has illegal. plied that test. The Fourth Amendment case, Constitution allows an offi cars the United States portion of even investigatory stop travelling an when he Scott cer to make suspicion” though they pulled have the shoul- has “articulable that a law has could onto an Ohio, 1, 21, with the Officer Bomar was familiar Terry been violated. 392 U.S. der. 1879-80, previously people had seen 20 L.Ed.2d street and S.Ct. (1968). roadway. park travelling of the A has an “reasonable who officer” that the suspect Photographs of the location disclose suspicion articulable that a has bro obviously dis- “business presumably law street is not ken the would sus if Bomar was mistaken- may trict.” Even Officer pect. The fact the officer also have Hernandez and Martinez hoped to discover evidence of other crimes in this suppression we that the evidence case 4. One of the officers admitted at Because hold of a have been excluded the fruit should hearing that all searches resulted from the initial stop, appellant’s dowe not address stop. arguments. illegally, this fact their ears does under- believing

cut his articulable committed, an offense had been and accord- ingly, stop pretextual. not render the

In addition to the initial permissible, I also conclude that subsequent proper the officers’ conduct was provide therefore does basis for suppressing any evidence. Further- more, reject argument I Hernandez’s testimony

Martinez’s “uncorroborated” insufficient basis to sustain conviction for possession with intent to distribute or aid or marijuana.

abet others in the distribution I therefore would affirm the district court’s judgment entirety. in its *6 America,

UNITED STATES of Plaintiff-Appellee, HIGA, Defendant-Appellant. Zane America, UNITED STATES of Plaintiff-Appellant, HIGA, Defendant-Appellee. Zane 93-10107, Nos. 93-10149. Appeals, United States Court of Ninth Circuit. Argued and Submitted Nov. 1994. May Decided