Traffic Stop - Probable Cause, Routine Questions, State Officers, Authority to Arrest for Federal Immigration Violations;

Probable Cause - Objective Standard, Subjective Belief of Officer Not Dispositive

United States v. Santana-Garcia and Ruiz-Tovar, 00-4087 (September 5, 2001)

After a traffic stop, a Utah State Trooper uncovered drugs during a search of the appellants' vehicle. They were charged with possessing 500 grams or more of methamphetamine, possessing 500 or more grams of cocaine, and eluding examination and inspection by immigration officials. The defendants moved to suppress physical evidence. The district court granted the motion. The government appeals, and the circuit reversed.

The district court had concluded the defendants had no standing to challenge the search of the vehicle, because they did not establish lawful possession. However, the district court recognized the defendants had standing to object to their detention. The district court relied solely on the factors the trooper testified that he considered to establish reasonable suspicion, and did not consider other factors known to him but which he did not apparently rely on to detain the defendants.

HELD: (1) Probable cause is measured against an objective standard. The subjective belief of an individual officer is not dispositive. Probable cause to arrest Ruiz-Tovar arose seconds into the stop when he, driver of the vehicle, did not possess a valid drivers license. The trooper did not arrest Ruiz-Tovar at that point, but radioed for assistance of a Spanish speaking trooper. Questions about travel plans are routine and may be asked without exceeding the proper scope of a traffic stop. The trooper was authorized to inquire about the vehicle's ownership given that neither was listed as a registered owner. During the exchange, the defendants indicated they were coming from Mexico, which prompted the trooper to ask whether they were "legal," and they appeared to understand the question and answered no. At that point the trooper had probable cause to arrest both defendants for suspected violation of federal immigration law. State law enforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws, and federal law does nothing to displace the state or local authority to do so. Therefore, the claim that the defendants were illegally detained at the time of their consent necessarily fails, and the district court order granting a motion to suppress must be reversed.

Motion to Suppress - Review Standard;

Traffic Stop - Terry Applies, Routine Questions, Officer Safety, Ask About Loaded Weapon in Car

United States v. Holt, 99-7150 (September 5, 2001)

(Michael A. Abel, FPD, Tulsa, Oklahoma)

A divided panel affirmed the district court's suppression of evidence obtained during a search of the defendant's car incident to a traffic stop in United States v. Holt, 229 F.3d 931 (10th Cir. 2000). The court granted rehearing in banc. Consistent with the panel opinion, a majority of the court concludes 1) that the analytical framework of Terry v. Ohio applies to traffic stops and requires an analysis of both the scope and duration of a stop. In contrast to the original opinion, a majority of the court concluded 2) that an officer conducting a traffic stop may ask the driver about the presence of loaded weapons, in the absence of particularized suspicion of the existence of such firearms, because this is justified on the grounds of officer safety.

HELD: (1) In reviewing a district court order granting a motion to suppress, the court accepts district court fact findings unless clearly erroneous, and views the evidence in the light most favorable to those findings.

(2) A traffic stop is a seizure. The reasonableness of the stop is measured by objective terms based on the totality of the circumstances. The court has consistently applied the principles of Terry v. Ohio to routine traffic stops. An officer may ask about the driver's authority to operate the vehicle, and ask to see a drivers license and registration. Ordinarily, motorists are allowed to continue on their way once the purposes of the stop are met. The government's general interest in criminal investigation, without more, is generally insufficient to outweigh the individual interest in ending the detention. The justification for detaining a motorist to obtain a criminal history check is in part based on officer safety. An officer may order the driver and passengers out of the vehicle in the interest of officer safety, even in the absence of any particularized suspicion. In this case, Holt's reasonable expectations of privacy are lower with respect to concealed weapons. Officers face a real risk of being assaulted with a dangerous weapon whenever they stop a vehicle. In addition to information about loaded weapons that the officer may obtain from visually looking in the car, an officer may obtain information by asking the motorist if there is a loaded weapon in the car. Holt freely admitted the presence of a loaded gun. Even where the motorist falsely denies the presence of a loaded gun, allowing the officer to ask the question may provide important clues. A third possibility is that the motorist may decline to answer the question. While the officer may not use the refusal to answer as the basis for a more intrusive search, the officer would certainly be permitted to use that information to justify prudent safety-related measures. Even though Holt was not in the vehicle when the officer asked about loaded weapons, the Supreme Court has held that the entire interior of a vehicle is treated as within a motorist's immediate control, and falls within the scope of a search incident to arrest, even after the motorist has been ordered out of the vehicle and placed under arrest. The balance struck here does not depend on whether the officer subjectively fears the motorist. Given the dangers inherent in traffic stops, the government's interest in officer safety outweighs a motorist's interest in not being asked about the presence of loaded weapons.

(3) Judge Ebel's opinion also states that he would remand it to the district court to develop the record further with regard to questions that did not relate to officer safety.

(4) Judge Briscoe's opinion, joined by others as to certain parts, rejected the government's primary argument, and concluded that the length and scope of a traffic stop are relevant factors, rejected the government's bright line rule to allow an officer to ask a driver about the presence of loaded weapons in the absence of reasonable suspicion, and would reverse the suppression order of the district court, and remand for an evidentiary hearing to determine whether consent to search was tainted by improper questioning about weapons.

(5) In Judge Henry's concurrence, he joined with parts one and two of Judge Briscoe's opinion, in concluding that non-consensual police encounters are measured under Terry. He also joined in parts one and two of Judge Ebel's opinion with the following caveats. As to part one, he did not agree that questions of travel plans were before the court and expressed no opinion. He agreed with part two, holding there is a narrow exception afforded during traffic stops to inquire about the presence of firearms in the interest of officer safety. He was convinced that a narrow officer safety exception is appropriate. In his view this would extend as well to unloaded weapons.

(6) Judge Kelly concurred in Judge Ebel's opinion entirely but emphasized his dissent from part two of Judge Briscoe's opinion. Having decided that an officer may ask a stopped motorist about a loaded firearm, it is unnecessary for the in banc court to decide whether Terry stops are constrained only in terms of duration and not in scope.

(7) Judges Lucero and Seymour join Judge Briscoe's opinion entirely. Judge Lucero wrote separately, joined by Judge Seymour, to emphasize that, had the officer expressed concern about his safety, the review would be for reasonableness under Terry v. Ohio. Traffic stops are generally governed by Terry. To allow police to ask about the presence of loaded weapons is contrary to Terry.

(8) Judge Murphy joined in parts one and two of Judge Briscoe's opinion. As to Terry applying, both the scope and duration of the stop should be analyzed. Murphy disagreed that questions related to travel plans are related to the purpose of a roadside traffic stop. He also joined in parts three and four of Judge Briscoe's opinion, but thought the bright line rule is inconsistent with Terry, and that no reasonable officer would have feared for his safety at the time the officer asked Holt about the presence of weapons.

Upward Departure - From Category 6, Findings, Review Standard, Degree, Reasons

United States v. Hannah, 01-6019 (September 28, 2001)

Hannah pleaded guilty to armed bank robbery and a § 924(c) count. The district court, in imposing sentence, departed upward. It found that Hannah had two prior felony burglary convictions that were crimes of violence under §4B1.2, and sentenced him as a career offender. The offense level was 34, reduced by 3 points for acceptance of responsibility to level 31. The career offender guideline calls for category 6 criminal history, resulting in a guideline range of 188 to 235 months. The PSR author recommended a departure because category 6 did not adequately reflect the seriousness of Hannah's prior conduct. Hannah was pending trial or sentencing on a number of offenses at the time he committed the instant offenses, and he had engaged in prior similar adult criminal conduct not resulting in a criminal conviction. The district court departed upward by three levels to a range of 262 to 327 months.

HELD: (1) In the case of an upward departure from a criminal history category 6, §4A1.3 instructs the district court to consider the nature rather than simply the number of the defendant's prior offenses, and to structure the departure by moving incrementally down the sentencing table to the next highest offense level in category 6 until it finds an appropriate guideline range. The circuit held that the directive to proceed incrementally down the sentencing table does not require that express findings be made concerning each incremental level.

(2) The court reviews departures under a unitary abuse of discretion standard. When the question is essentially factual, review is most differential. When the issue is essentially legal, appellate review should be plenary. The district court did not abuse it discretion in determining an upward departure was warranted. The district court relied upon the defendant's numerous charges pending for prior offenses, and the fact that the defendant had been on trial or parole when he committed the instant offense. The district court provided a sufficient explanation.

(3) However, the circuit was unable to review the degree of departure, because the record does not sufficiently indicate why the district court chose the degree of departure it did. The requirement of stating the reasons for the degree of departure is separate from the requirement that the district court explained why a departure is warranted. While the circuit does not require a mathematically precise explanation, the district court must specifically articulate the reasons for the degree of departure. In reviewing whether the record contains a necessary explanation, the circuit does not limit review to the district court's express pronouncements, but also considers other statements in the record or the presentence report. Reversed and remanded.

Illegal Reentry- 16 Level Enhancement, Aggravated Felony, Theft

United States v. Vasquez-Flores, 01-4045 (September 13, 2001)

Vasquez pled guilty to one count of illegal reentry under 8 U.S.C. § 1326.

The court reviews questions of law related to application of the guidelines de novo. The pertinent guideline mandates a 16 level increase, if the defendant had been deported after an aggravated felony conviction. Vasquez was previously convicted of attempted receiving or transferring a stolen motor vehicle under Utah law. He argued this was a lesser included offense of theft. The district court rejected the argument and the circuit affirmed. Theft offense includes more crimes than just theft. The court should adopt a uniform generic definition of theft offense. Because Vasquez' conviction entailed a knowing exercise of control over another's property without consent, it fits the definition of theft offenses.

Civil Rights Action (42 U.S.C. § 1983) - Danger Creation Theory;

Summary Judgment

Martinez v. Uphoff, 00-8034 (September 18, 2001)

Plaintiff-appellants appeal the entry of summary judgment in favor of the defendants, employees of the Department of Corrections in Wyoming. Corporal Martinez was a Wyoming DOC officer. While on duty at the maximum security unit, he was attacked and murdered by three inmates who were attempting to escape. The plaintiffs brought this action under 42 U.S.C. § 1983, on the theory that the defendants' conduct deprived Martinez of substantive due process by failing to properly train and supervise penitentiary personnel, provide safe and adequate staffing, and to take corrective action to protect Martinez. The district court granted summary judgment, ruling that the allegations fail to state a claim under § 1983 under a "danger-creation" theory.

HELD: (1) The court determines if there is a genuine issue of material fact in dispute, and if not, determines if the trial court correctly applied substantive law. The circuit affirmed. The defendants can be liable only for acts which created the danger that harmed Corporal Martinez. These acts must go beyond mere negligence since the evidence must establish that the defendants recklessly created the danger or that they acted in conscience shocking manner. The "shock the conscience" standard required a high level of outrageousness. The plaintiffs failed to provide facts which tie the institutional deficiency to the death of Martinez. Inaction in the face of known dangers is not sufficient to satisfy the legal standard.

Search - Warrant, Probable Cause, Good Faith;

Witnesses - Review Standard, Defendant Procured Witness Unavailability, Hearsay;

Motion to Suppress - Review Standard;

Traffic Stop - Search Incident to Arrest;

Joinder;

Firearms (922(g)) - Interstate Commerce Element;

Apprendi - Plain Error, Apportion Sentence Amount Courts;

Guideline Interpretation - §5G1.2 as to Consecutive Sentences is Mandatory

United States v. Price, 99-7078 (September 11, 2001)

Price appeals his various firearms, narcotics and related convictions.

HELD: (1) The court reviews de novo the district court's probable cause determination. Review of a magistrate's issuance of a search warrant is more deferential, and the court's duty is to ensure that the magistrate had a substantial basis for concluding the affidavit established probable cause. This is a practical common sense decision about whether there is a fair probability that contraband or evidence of a crime would be found in a particular place.

(2) When police officers act in good faith and reasonable reliance on a search warrant, evidence obtained during a search should not be suppressed even if the warrant is lacking in probable cause. The affidavit and the actual search warrant were sufficient to merit reasonable reliance by police.

(3) Technical challenges to the search warrant not made in district court are waived. The court will review for plain error resulting in manifest injustice.

(4) The court reviews de novo legal conclusions regarding the rules of evidence and the confrontation clause. The district court found that the defendant had procured the unavailability of Lurks as a witness. The preponderance of evidence standard was the correct one for the district court to use. The defendant questions the evidence linking him to Lurks' murder, other than the blood-stained tennis shoe found during the search of the residence. The court viewed all the evidence and found that it supported the district court's finding.

(5) Because the defendant procured the absence of Lurks, he waived hearsay and Confrontation Clause objections, and therefore the admission of Lurks' out-of-court statement was affirmed.

(6) In reviewing the denial of a motion to suppress, the court accepts the district court's fact findings unless clearly erroneous, and views the evidence in the light most favorable to the government. The legal conclusion as to whether the traffic stop complied with the Fourth Amendment is reviewed de novo. The defendant was speeding and was pulled over. The officer observed and heard a scanner. This is in violation of Oklahoma Law. The officer performed an inventory search and found the firearm in question in the interior of the car as a search incident to a lawful arrest. When a police officer makes a lawful arrest of the occupant of a vehicle, the interior may be contemporaneously searched under New York v. Belton. Unlike Knowles v. Iowa, the defendant was not merely issued a citation but was arrested.

(7) Whether multiple offenses have been properly joined under Rule 8(a) is reviewed de novo. There was testimony at a pretrial hearing concerning how the defendant's possession of firearms related to drug trafficking.

(8) Constitutional challenges to a statue are reviewed de novo. In reviewing the sufficiency of the evidence, the court reviews the record de novo and takes the evidence in the light most favorable to the government. A reasonable jury could find that the government established the required effect on interstate commerce for a conviction under 18 U.S.C. § 922(g). The court upheld the constitutionality of § 841(a) and § 846, 21 U.S.C. as an appropriate use of Congress' power under the commerce clause. The court has repeatedly affirmed the constitutionality of § 922(g).

(9) Defendant received life sentences for each violation of the drug statutes and urges these sentences violate Apprendi. Because this objection was not made in district court, review is for plain error. Any fact other than a prior conviction which increases the prescribed statutory maximum penalty must be submitted to a jury and proved beyond a reasonable doubt. The district court determined the total amount of drugs was over 50 grams of crack and the statutory maximum was life. The guideline sentence was also life. The quantity of drugs was not listed in the indictment nor submitted to the jury. Thus the life sentences were error that is plain, and the defendant should have been sentenced under § 841(b)(1)(C) to a maximum of 20 years. The government argues that the defendant's substantial rights were not affected, because the district court was required under §5G1.2(d) of the guidelines to impose the maximum sentence and to achieve that by running sentences consecutively. This court rejected a similar argument in Jones, but the argument, as to the mandatory nature of §5G1.2(d) that is presented in this case, is somewhat different. The circuit held that §5G1.2 is mandatory and that the guideline life sentence could be apportioned among the seven drug convictions and made to run consecutively. Therefore the defendant's substantial rights were not affected and defendant has failed to demonstrate plain error.

Habeas Corpus - (28 U.S.C. § 2254) - AEDPA Review Standard;

Exculpatory Evidence - Attempt to Hypnotize;

Procedural Bar;

Witnesses - Spousal Privilege

Ineffective Assistant of Counsel - Appellate Counsel

Procedural Bar - Cause

Self-Incrimination - Testimonial

Engberg v. State of Wyoming, 99-8092 (September 12, 2001)

Engberg appeals denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. He was tried and convicted of aggravated robbery and first degree murder. After pursuing state remedies, Engberg came to federal court. Engberg claims the district court erred in affording a presumption of correctness to the Wyoming courts decisions regarding undisclosed hypnosis attempt, and in failing to grant him an evidentiary hearing. He also claims he should have been granted a hearing to determine the prejudicial impact of the prosecutor's statements in closing arguments that his attorney was "one calm and collected lady." The federal magistrate treated the second claim as a new claim not exhausted in state court. The district court disagreed and viewed the claims as two aspects of the same hypnosis issue. The circuit agreed. Under pre-AEDPA law the court presumes state court fact determinations to be correct but there are exceptions. The materiality of wrongly suppressed exculpatory evidence is a mixed question of law and fact to which the presumption does not apply. The Wyoming Supreme Court had held that no hearing was required because any attempt to hypnotize a witness must be disclosed, but that the weight of evidence against Engberg insured that there was no reasonable probability that the jury's verdict would have been different had the use of hypnosis with respect to the witness been disclosed.

HELD: (1) To establish a Brady violation, the defendant bears the burden of showing the prosecution suppressed evidence, that the evidence was favorable to the accused, that the evidence was material. Here, the prosecution suppressed evidence of the attempt to hypnotize the witness, and of her emotional state during the hypnosis attempt. That information was favorable to Engberg. Undisclosed evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. This witness, Kay Otto, was the prosecution's most significant witness. But considering other eyewitness testimony and the substantial amount of corroborating circumstantial evidence, the court was convinced the verdict was worthy of confidence despite non-disclosure of the hypnosis attempt.

(2) Even if the court agrees that Engberg's failure to object to the magistrate's recommendation was excusable and should not have constituted a waiver of his claims before the district court, the circuit agreed with the magistrate that the claims were procedurally barred in the state courts. Engberg had claimed that he was denied his Sixth Amendment rights by the state trial court's decision that his wife could invoke the spousal privilege not to testify, and his allegation that his Fifth Amendment rights were violated when the state introduced, over objection, evidence that he had refused to allow the police to photograph him wearing a stocking cap.

(3) These claims were reviewed in the context of whether counsel on direct appeal had been ineffective in failing to raise them. A habeas petitioner may establish cause for procedural default by showing he received ineffective assistance of counsel in violation of the Sixth Amendment. To establish ineffective assistance, petitioner must show deficient performance and prejudice. Prejudice may be shown where there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

(4) The Supreme Court has long maintained that the Fifth Amendment protection extends only to self-incrimination which is testimonial in nature. The privilege does not prevent a defendant from being required to put on a piece of clothing. Engberg had no Fifth Amendment privilege to refuse to be photographed wearing a stocking cap, appellate counsel was not ineffective in failing to raise the claim, and it is therefore procedurally barred.

(5) As to the spousal privilege, the Wyoming Supreme Court had found that Engberg made a tactical decision at trial to waive the spousal privilege. When his wife refused to testify, the trial court ruled she could assert the spousal privilege, and refused to allow Engberg to present hearsay statements his wife had made to another.

The privilege belongs to both the party spouse and the witness spouse, and the privilege is rarely denied to the witness spouse. Therefore, Engberg has not shown a reasonable probability that, had appellate counsel raised the argument, the claim would have resulted in reversal.

(6) The decision to appoint counsel in a habeas action is left to the sound discretion of the district court.

Civil Rights Action -Prior Discipline;

In Forma Pauperis (28 U.S.C. § 1915) - Three Strikes, Filing Fee, Constitutional, Vagueness

Kinnell v. Graves, 00-3404 (September 14, 2001)

Kinnell filed a civil rights complaint alleging the dismissals of his previous federal court actions involving prison disciplinary proceedings amounted to an unconstitutional denial of access to the courts.

HELD: (1) Section 1915(g), the "three strikes" provision of the in forma pauperis statute applicable to indigent prisoners, requires so-called frequent filer prisoners to prepay the entire filing fee before federal courts may consider their civil actions. The only exception is imminent danger of serious physical injury.

(2) The court would not revisit the merits of his previous claims based on res judicata, finding that these prior actions were frivolous.

(3) The court rejected the claim that § 1915(g) is unconstitutional, based on its prior precedent where it rejected equal protection and due process challenges. The fact that Kinnell is black, as well as indigent, is of no consequence. Unless a legislative classification burdens a fundamental right or targets a suspect class, it need only bear a rational relation to some legitimate end.

(4) The void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary enforcement. Section 1915(g) does not prohibit conduct, and vagueness principles provide no basis for challenging it.

(5) The circuit imposed additional restrictions on Kinnell's filings in court, in addition to those imposed by § 1915(g), because his filings had been repetitive and frivolous. The circuit enjoined him from proceeding, without representation of a licensed attorney, unless he first obtains permission to proceed pro se.