UNITED STATES of America, Plaintiff-Appellee v. Ruben PENA-GONZALEZ, Defendant-Appellant.
No. 14-40126.
United States Court of Appeals, Fifth Circuit.
July 16, 2015.
195
Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Federal Public Defender‘s Office, Houston, TX, for Defendant-Appellant.
Before JONES, SMITH, and COSTA, Circuit Judges.
PER CURIAM:*
Traffic stops on the stretch of U.S. Highway 77 that runs through South Texas have given rise to a number of Fourth
I.
On March 9, 2011, Kingsville Police Department Officer Mike Tamez was patrolling Highway 77 southbound when he detected a Chevy Tahoe speeding. Tamez pulled alongside the Tahoe and saw three people-two adults and a child. He also noticed air fresheners hanging throughout the car, several rosaries on the rearview mirror, and four bumper stickers showing support for D.A.R.E.1 and law enforcement. Tamez turned on his patrol lights and pulled over the Tahoe for speeding two miles over the limit.
Tamez parked his patrol car behind the Tahoe and approached on the passenger side. Mr. Pena-Gonzalez sat in the passenger seat; his wife-Nohemi Pena-was driving. When they rolled down the windоw, Tamez smelled an overwhelming odor of air freshener and counted four air fresheners hanging throughout the vehicle. He also noticed Pancho Villa and St. Jude symbols on Mrs. Pena‘s key chain. He requested Mrs. Pena‘s driver‘s license and insurance, and then went around to the driver‘s side and asked her to step out of the vehicle.
Mrs. Pena got out and Officer Tamez began talking with her. Tamez explained that he pulled her over for speeding, and Mrs. Pena responded that her daughter needed to use the restroom. Tamez then asked several questions about Mrs. Pena and her journey. She said she and her family were coming from Houston and traveling home to Mission, which Tamez found odd because her insurance said they lived in Palmview (apparently a suburb of Mission, though thеre is no indication that Tamez knew this2). Mrs. Pena stated that they had been in Houston so her husband could attend a car auction. Tamez asked if they bought anything at the auction. Mrs. Pena initially said no, though she quickly changed her answer to say that he did find an Impala and some other car but her husband was in charge of that. Tamez then asked how many days they spent in Houston. Mrs. Pena paused for almost four seconds and then said “one day.” When Tamez followed up about when they had left for Houston, she told him “the day before yesterday,” so they had in fact spent two nights in Houston. Tamez asked where they stayed in Houston, and she said an “American Best Inn” somewhere off Highway 249. Tamez told her he would let her off with a warning. After Mrs. Pena thanked him, Tamez asked if he could talk to her husband and she agreed. These events transpired in under four minutes, with the conversation between Tamez and Mrs. Pena outside the car lasting about two minutes.
The conversation between Tamez and Mr. Pena-Gonzalez lasted for roughly three minutes. During that time, according to Tamez, Pena-Gonzalez‘s carotid artery visibly pulsed, his faced twitched, and his breathing was labored. Ultimately, Pena-Gonzаlez agreed to allow Tamez to search the Tahoe. Tamez found dozens of
A grand jury indicted Pena-Gonzalez for money laundering and conspiracy to commit money laundering. Pena-Gonzalez moved to suppress the evidence, arguing that reasonable suspicion did not exist to extend the stop after Officer Tamez decided to issue a warning to Mrs. Pena. The district court denied that motion after an evidentiary hearing, but noted that it was a “close call.”
Pena-Gonzalez then entered into a conditional plea agreemеnt on the money laundering count, reserving his right to appeal the suppression issue. The presentence report awarded him a two-level reduction for acceptance of responsibility under
Pena-Gonzalez raises two issues on appeal. He argues that the district court should have granted the motion to suppress because Tamez lacked reasonable suspicion to extend the stop. He also contends that he was improperly denied the additional reduction for timely acceptance.
II.
Pena-Gonzalez concedes that the initial traffic stop was legal, but argues that Officer Tamez impermissibly extended the stop past the time permitted by the Fourth Amendment. The Government agrees that the purpose of the initial stop had been served once the warning issued, but argues that Officer Tamez justifiably extended the stop because reasonable suspicion of other criminal conduct existed by that time. Alternatively, the Government contends that Officer Tamez could continue the stop because Mrs. Pena effectively gave Tamez permission to talk to Pena-Gonzalez.
A.
As the Supreme Court recently explained in Rodriguez v. United States, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015),4 the Fourth Amendment limits the permissible length of a traffic stop. See Id. at 1614. “[T]he tolerable duration of police
Reasonable suspicion exists if the police officer can point to specific and articulable facts indicating that criminal activity is occurring or is about to occur. United States v. Alvarado-Zarza, 782 F.3d 246, 249 (5th Cir.2015) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The “level of suspicion the standard requires is ‘considerably less than рroof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary for probable cause.” Navarette v. California, --- U.S. ---, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014) (citation omitted). And the suspicion need not relate to a particular crime; it is sufficient to have reasonable suspicion “that criminal activity may be afoot.” Pack, 612 F.3d at 356. We review the district court‘s reasonable suspicion finding de novо, looking at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing. United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir.2005) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)).
B.
Tamez testified that a number of things he observed and smelled during the course of the stop made him suspicious: the large number of bumper stickers supporting law enforcement, which he сontends shows a desire to be viewed as a “good guy” who “can‘t do no wrong“; numerous air fresheners placed throughout the vehicle, which experience taught him is an attempt to mask the odor of drugs or drug money; Pancho Villa and St. Jude medallions on the key chain, both of which he characterized as icons commonly used by drug smugglers along Highway 77 as symbols for righteousness and protection; and three rosaries hanging from the rearview mirror, which his experience led him to believe are also used by drug traffickers for protection. Tamez also cited what he perceived as inconsistencies and evasion in Ms. Pena‘s answers concerning where they lived, how long they spent in Houston, where they stayed, and what they did at the car auction.
Pena-Gonzalez counters that the stickers, religious symbols, and air fresheners
We do have concerns that classifying pro-law enforcemеnt and anti-drug stickers or certain religious imagery as indicators of criminal activity risks putting drivers “in a classic ‘heads I win, tails you lose’ position.” See United States v. Escamilla, 560 F.2d 1229, 1233 (5th Cir.1977); see also United States v. Townsend, 305 F.3d 537, 544 (6th Cir.2002) (holding that, despite the officer‘s assertion that “the presence of a Bible in the car was suspicious because drug couriers often display religious symbols to deflect suspicion of illegal activity,” the Bible “is a very weak indicator of criminal activity“); cf. Estep v. Dallas Cnty., Tex., 310 F.3d 353, 358-59 (5th Cir.2002) (holding that an NRA sticker on a car should not have been considered in assessing the reasonableness of the officer‘s suspicion that the driver was dangerous). But we need not decide whether these items alone, or in combination with one another, amount to reasonable suspicion because we find the more suspicious evidence to be the array of air fresheners and inconsistencies in the driver‘s responses to the officer‘s basic questions.
We have long recognized that the presence of air fresheners, let alone four of them placed throughout an SUV, suggests a desire to mask the odor of contraband. See, e.g., United States v. Rivera, 595 F.2d 1095, 1099 (5th Cir.1979) (holding that “observation of ... air freshener ... strengthened the probablе cause to search the [vehicle], in light of his knowledge and experience that drug traffickers often use air fresheners ... to disguise the smell of marijuana“); United States v. Quiroz-Hernandez, 48 F.3d 858, 864 (5th Cir.1995) (holding that “a strong odor of fabric softener while walking to [a] van” supported a finding of probable cause); see also United States v. Ortega, 478 Fed.Appx. 871, 873 (5th Cir.2012) (noting that the officer found an oversized air freshener suspicious); United States v. Cantu, 426 Fed.Appx. 253, 255 (5th Cir.2011) (noting that the officer found six аir fresheners suspicious); United States v. Frias, 451 Fed.Appx. 371, 372 (5th Cir.2011) (holding that multiple air fresheners provided evidence of guilt); United States v. Aguirre, 29 F.3d 624, 1994 WL 395034, at *1 (5th Cir.1994) (affirming based on an “uncommonly strong odor of air freshener“). Pena-Gonzalez cites to another court‘s observation that occupants of a car may simply have liked the smell of air freshener. See United States v. Guerrero, 374 F.3d 584, 589-91 (8th Cir.2004) (holding that air fresheners do not create reasonable suspicion). But “[a] determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct,” Arvizu, 534 U.S. at 277, and here the multiple air fresheners in the Tahoe emitted an “overwhelming odor” of “dryer sheets”5 that was likely not pleasant to the occupants during the long ride from Houston to Palmview. Reasonable suspicion determinations are highly factbound and the number and placement of the fresheners, along with Tamez‘s description of the strong odor and the location of this stop along a drug corridor close to the border, all distinguish this case from Guerrero. See Pack, 612 F.3d at 362 (taking account of “the large volume of contraband that is moved along our major highways on a daily basis, especially in border states like Texas“).
In sum, Officer Tamez had reasonable suspicion of criminal activity apart from the traffic violation to continue the stop for the relatively short additional three-minute time pеriod during which he obtained consent to search the Tahoe. See United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (holding that “the brevity of the invasion of the individual‘s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion“); see also Pack, 612 F.3d at 362 (holding “a delay of only eight minutes” was reasonable “[i]n view of the suspicious facts that [the officer] had observed“).6 The district court therefore properly denied Pena-Gonzalez‘s motion to suppress.
III.
We next address Pena-Gonzalez‘s argument that the Government denied him the third level for timely acceptance of responsibility based on what he contends is an impermissible consideration: his filing of a motion to suppress.
upon motion of the government stating that the defendant hаs assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently[.]
Pena-Gonzalez never objected to the presentence report оr the sentence for failing to include this reduction. He nonetheless argues that potential error was pre
Citing a recent Sentencing Commission amendment to the application notes of
Thе government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.
A circuit split exists on the issue, and no circuits have addressed the issuе since the amendment. Compare United States v. Rogers, 129 F.3d 76, 80 (2d Cir.1997) (applying the same rule as the Fifth Circuit), with United States v. Price, 409 F.3d 436, 443-44 (D.C.Cir.2005) (reaching the opposite conclusion), United States v. Marquez, 337 F.3d 1203, 1212 (10th Cir.2003) (same), and United States v. Kimple, 27 F.3d 1409, 1414-15 (9th Cir.1994) (same). Lacking authority for his position in this circuit, reinforced by the existence of a split in other circuits, Pena-Gonzalez cannot show any error that was plain or obvious. See United States v. Segura, 747 F.3d 323, 330 (5th Cir.2014) (“[Defendant] cites no Fifth Circuit authority that would make the district court‘s error clear or obvious. Therefore, he fails to satisfy the second prong of our plain error analysis.“).
*
*
*
The judgment is AFFIRMED.
Notes
The Court: All right. Okay. So the third acceptance point, I assume the Government would move for that?
Mr. Alaniz: No way I‘m moving for it, your Honor-
The Court: Oh, not, because we had the suppression hearing.
Mr. Alaniz: Yes, sir.
The Court: All right, so he‘s at a level 22. ROA.272-73.