74 F3d 1250 United States v. Hinojos

74 F.3d 1250

UNITED STATES of America, Plaintiff-Appellee,
v.
Salvador HINOJOS, Jr., Defendant-Appellant.

No. 93-5242.
(D.C.No. 93-CR-33-1-E)

United States Court of Appeals, Tenth Circuit.

Jan. 18, 1996.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before MOORE, ANDERSON, and BALDOCK, Circuit Judges.

1

ORDER AND JUDGMENT*

2

Salvador Hinojos, Jr., appeals his convictions, following a jury trial, for possession with intent to distribute a controlled substance, 21 U.S.C. Sec. 841(a)(1), and for carrying a firearm during the commission of a drug trafficking crime, 18 U.S.C. Sec. 924(c). Hinojos contends that the district court erred in: (1) denying his motion to suppress evidence seized as a result of an allegedly pretextual stop, illegal detention and tainted consent; (2) denying his motion for a mistrial based on prosecutorial misconduct; and (3) imposing a fine for costs of incarceration in the absence of a punitive fine. For the reasons stated below, we vacate the district court's ruling on the motion to suppress as well as its imposition of the fine, and remand for further proceedings.

BACKGROUND

3

On November 12, 1992, Oklahoma highway patrol trooper Paul Lankster was patrolling Interstate 44 around Tulsa County. Between 6:00 a.m. and 6:30 a.m., he heard a broadcast from the DEA office in Dallas, Texas, which he described as follows:

4

[A] broadcast ... was issued to me earlier that morning concerning a male, one or two Hispanic male subjects driving a teal colored Chevrolet pickup. I believe they also, or I'm sure they also gave the tag number of the vehicle. This report came from the DEA office in Dallas, I believe.

5

R. Vol. III at 14. The only other detail which Lankster testified to concerning the broadcast was revealed in the following exchange:

6

Q: What did you suspect the white powdery substance to be when you first observed it?

7

A: Cocaine.

8

Q. Why?

9

A. Because ... I've seen it before ... and also that was the drug, one of the drugs that the teletype or the information we received prior to my stopping the defendant indicated that he was supposed to be carrying.

10

Id. at 19-20.

11

After receiving the broadcast, Lankster continued patrolling for about half an hour, until he saw an approaching eastbound truck which he believed to be speeding. Using radar, Lankster clocked the truck going 62 mph in a 55 mph zone. As it passed him, Lankster noticed the truck color matched the broadcast description. Lankster made a U-turn, caught up to the truck, which was no longer speeding, and verified that its license plate also matched the broadcast information. Id. at 7-9, 14-15, 27-28. Lankster then called for back-up and checked the availability of the canine unit. Id. at 40-41.

12

Without activating his lights or siren, Lankster continued to follow behind the truck for about nine miles. R. Vol. V at 149. At some point, Hinojos, who was driving the truck, changed to the inside lane, which is usually reserved for faster moving traffic. However, Hinojos slowed to the minimum speed limit of forty miles per hour, which began to congest the rush hour traffic for the last mile or so that Lankster followed him. R. Vol. III at 10, 33, 52. Eventually, Lankster put on his lights and pulled the truck over. As the back-up trooper arrived, Lankster got out of his patrol car and called for the truck's driver to get out. Id. at 10-11; R. Vol. IV at 32-33, 57-58.

13

Hinojos complied, asking why he was being stopped. Lankster responded that he'd clocked him speeding and directed him to sit in his patrol car. R. Vol. III at 12. Meanwhile, the backup trooper went to the passenger side of the truck, ordered the passenger to get out, handcuffed him, and led him to his patrol car which was parked behind Lankster's. R. Vol. IV at 65.

14

Inside Lankster's patrol car, Hinojos produced a valid driver's license which Lankster checked and retained. Id. at 10; R. Vol. III at 39. Lankster asked Hinojos where he was going, and why. Hinojos replied that he was going to Decatur, Illinois, and that he would be staying there for a week to work, specifying both the company and the type of work he would be doing. Id. at 16; R. Vol. IV at 11. As he "began to fill out a ticket," Lankster also asked if Hinojos were carrying illegal drugs or weapons, which Hinojos denied. R. Vol. III at 13, 36-37. Then, as he "initiated the ticket," Lankster asked if he could search the truck, and Hinojos consented. Id.

15

Lankster finished writing the ticket and produced a consent form which he read out loud and asked Hinojos to sign. Id. at 37, 45. When he read him the form, Lankster informed Hinojos that he could refuse, although he did not inform him that he was free to go, and he still retained the ticket and Hinojos' license. Id. at 39, 44-45. Moreover, Lankster testified that, in fact, Hinojos was not free to go. Id. at 36, 37.

16

Once Hinojos signed the consent form, Lankster called for the canine. After the canine failed to alert, Lankster personally searched the truck and found a gun and a plastic bag containing one half pound of cocaine in the truck cabin's center console. Lankster then arrested Hinojos. After the truck was impounded, on November 18, 1992, an anonymous tip led police to locate twelve pounds of marijuana in the truck's spare tire. R. Vol. II at 3, 15.

17

The district court denied Hinojos' motion to suppress, finding that Hinojos had voluntarily consented to the search. However, the court made no findings on Hinojos' claims of pretextual stop or illegal detention. R. Vol. I, Tab 20.

DISCUSSION

18

A. Motion to Suppress. We review a district court's factual findings in connection with a motion to suppress for clear error, and we view the evidence in the light most favorable to the district court's ruling. United States v. Sanchez-Valderuten, 11 F.3d 985, 988 (10th Cir.1993). However, we review the ultimate determination of reasonableness under the Fourth Amendment de novo. United States v. Little, 18 F.3d 1499, 1503 (10th Cir.1994) (en banc). If the government relies on a defendant's consent to validate a search, the government bears the burden of proving that the consent was freely and voluntarily given. United States v. Sandoval, 29 F.3d 537, 539 (10th Cir.1994). Whether consent is voluntary must be determined from the totality of the circumstances. United States v. Santurio, 29 F.3d 550, 552 (10th Cir.1994) (citing United States v. Mendenhall, 446 U.S. 544, 557 (1980)). A valid consent may be given by a person who is being detained. United States v. Flores, 48 F.3d 467, 469 (10th Cir.), cert. denied, 116 S.Ct. 122 (1995). However, if the detention is illegal, the government bears the heavier burden of showing that the primary taint was purged so that the consent was voluntary in fact under the totality of the circumstances. United States v. McSwain, 29 F.3d 558, 562 (10th Cir.1994) (citing United States v. Fernandez, 18 F.3d 874, 881 (10th Cir.1994)). That is, the government must demonstrate a sufficient attenuation or "break in the causal connection between the illegal detention and the consent." McSwain, 29 F.3d at 562 n. 2; see also United States v. Angulo-Ferdandez, 53 F.3d 1177, 1181 (10th 1995); Sandoval, 29 F.3d at 543 (noting that relevant factors include temporal proximity of the illegal seizure and consent, presence of intervening circumstances, and purpose and flagrancy of the police misconduct).

19

Hinojos claims that the speeding stop was a pretext in violation of the Fourth Amendment, and that the real reason Lankster stopped him was to investigate unrelated drug trafficking based on the DEA bulletin. Alternatively, he contends that even if the original stop was not pretextual, Lankster's questions regarding other serious crimes violated the Fourth Amendment because they were outside the scope of the circumstances which justified the initial interference. Under either theory, Hinojos argues that his consent was tainted.

20

1. Pretext. A traffic stop is valid under the Fourth Amendment if it is based on an officer's observation that a traffic violation has occurred, United States v. Botero-Ospina, No. 94-4006, 1995 WL 723102 at * 3, --- F.3d ----, ---- (10th Cir. Dec. 5, 1995) (en banc), and it is irrelevant that the officer may have had other motives for making the stop. Id. In this case, it is undisputed that Lankster clocked Hinojos driving seven miles over the speed limit. Thus, the stop for speeding, which was clearly supported by Lankster's personal observation of Hinojos' traffic violation, was valid under the Fourth Amendment.

21

2. Illegal detention. "During a routine traffic stop, the detaining officer may request a driver's license and vehicle registration, run a computer check on the car and driver, and issue a citation." United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993). " 'If the driver produces a valid license and proof of right to operate the vehicle, the officer must allow him to continue on his way without delay for further questioning.' " Id. (quoting United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, 501 U.S. 1207 (1991)). If the officer retains the driver's license while asking additional questions outside the scope of the circumstances which justified the initial detention, such questioning and detention must be supported by an objectively reasonable, articulable suspicion that illegal activity has occurred or is occurring. United States v. Jones, 44 F.3d 860, 872 (10th Cir.1995) ("Subsequent or concurrent detentions for questioning are justified only when the officer reasonably suspects 'illegal transactions in drugs or ... other serious crime.' " (emphasis added) (quoting Florida v. Royer, 460 U.S. 491, 498-99 (1983)); United States v. Soto, 988 F.2d 1548, 1557 (10th Cir.1993); see also Sandoval, 29 F.3d at 541 (Even though officer returned defendant's license and handed him the ticket, officer's instruction that defendant remain with him for a moment constituted further detention which required reasonable suspicion.); Ferdandez, 18 F.3d at 878 (Even though officer finished writing ticket, fact that he retained it and defendant's license constituted further detention which required reasonable suspicion.); United States v. Walker, 933 F.2d 812, 816 (10th Cir.1991) (Even though officer validly stopped the defendant for traffic violation, fact that he conducted inquiry into matters unrelated to traffic stop without ever writing citation and while holding defendant's license constituted further detention which required reasonable suspicion.), cert. denied, 502 U.S. 1093 (1992).

22

Initially, the government argues that there was no additional detention beyond that required to effectuate the traffic stop, since the questioning about drugs was proceeding concurrently with Lankster's writing the ticket.1 We disagree. Jones makes clear that questioning about drugs, if outside the scope of the circumstances which justified the traffic stop, creates a separate concurrent detention which must be supported by reasonable articulable suspicion. Jones, 44 F.3d at 872 ("Concurrent with this legitimate investigative detention [for speeding], [the officer] questioned Ms. Jones regarding the transportation of contraband. This questioning is justified only if [the officer] reasonably suspected Ms. Jones was transporting drugs.").

23

Alternatively, the government correctly argues that, in any event, if the officer has a reasonable articulable suspicion to justify questions about drug trafficking or other serious crime, any consent obtained during that questioning would not be tainted. See United States v. Alvarez, 68 F.3d 1242, 1245 (10th Cir.1995). Thus, the government asserts that the detention for questioning about drugs was legitimate since Lankster had reasonable articulable suspicion of drug trafficking, based on the fact that Hinojos slowed down when the patrol car was behind him, the fact that Hinojos carried insufficient luggage for his proposed trip, and the DEA bulletin.

24

However, Lankster never claimed that Hinojos' slowing down aroused his suspicions. See R. Vol. III at 15-16. Nor can we conclude that a driver's slowing to the minimum speed is grounds for objective suspicion that the driver is engaged in drug trafficking. See Fernandez, 18 F.3d 874, 877 n. 2 (10th Cir.1994) (noting that a driver's slowing down and pulling to the emergency lane in response to obvious police patrol scrutiny was not suspicious). Moreover, Hinojos' single suitcase, which Lankster described as 2 feet by 3 feet, would not, independently or in concert with the other cited factors, reasonably cast doubt on Hinojos' answers or raise other suspicions of illegal activity because it was too small.2 Accordingly, we must determine whether the DEA bulletin alone justifies Trooper Lankster's detention and further questioning of Hinojos and, thus, the admissibility of the evidence subsequently discovered.

25

In United States v. Hensley, 469 U.S. 221(1985), the Supreme Court held that a police flyer or bulletin may provide objective justification for a Terry stop by an officer, but only if the flyer itself is based on reasonable suspicion:

26

Assuming the police make a Terry stop in objective reliance on a flyer or bulletin, we hold that the evidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop, United States v. Robinson, supra, and if the stop that in fact occurred was not significantly more intrusive than would have been permitted the issuing department.

27

Id. at 233; see also United States v. Nicholson, 983 F.2d 983, 987 (10th Cir.1993) (finding that Wichita policeman could detain suspect in reliance on DEA information which was based on DEA agent's reasonable articulable suspicion); United States v. Gonzales, 879 F.2d 504, 506 (10th Cir.1990) (finding that border patrol could detain suspect in reliance on DEA bulletin, where DEA agent testified that he issued the bulletin based on information given by reliable informant who gave specific confirmable details).

28

The entire testimony at the suppression hearing regarding the broadcast is set out above. It is sketchy at best, and nothing in the description of the broadcast attests to the source, corroboration, or other indicia of reliability, regarding the information transmitted, or the basis for suspecting that Hinojos' car was carrying drugs.3 See Hensley, 469 U.S. at 232-33; see also Alabama v. White, 496 U.S. 325, 329-32 (1990) (holding an anonymous tip which demonstrates "special familiarity with [a person's] affairs," while insufficient to justify detention on its own, may be augmented by independent police corroboration of significant details so as to furnish reasonable articulable suspicion justifying detention); United States v. Cutchin, 956 F.2d 1216, 1218 (D.C.Cir.1992) (holding that detention may be justified based on a dispatcher's transmittal of an anonymous 911 call, if the call contained "sufficient indicia of reliability," and the responding officers sufficiently corroborated the details); cf. United States v. Ornelas-Ledesma, 16 F.3d 714 (7th Cir.1994) (noting that a single, uncorroborated Narcotic and Dangerous Drug Information System ("NADDIS") identification would not justify a Terry stop, but that a finding of reasonable suspicion was not clearly erroneous when two NADDIS "hits" were added to other police observations), cert. granted in part, 116 S.Ct. 417 (Nov. 6, 1995) (No. 95-5257).

29

Whether the information came from an informant, direct police observation, circumstantial evidence, a process of deduction, or a mere hunch, is unknowable from the officer's description, although the information which included the truck's license number had to have some basis. Because the record developed below is inconclusive as to whether or not the agency issuing the broadcast had a reasonable suspicion which would justify a Terry stop of Hinojos' truck, and because the parties focused a good deal of attention on the now-abandoned Guzman standard, we remand this case for further proceedings in which the district court may revisit the suppression issue in its entirety.

30

Nonetheless, in the interest of efficiency, we consider Hinojos' additional claims of prosecutorial misconduct and improper fine.

31

B. Prosecutorial Misconduct. Hinojos contends that the court should have granted a mistrial because the prosecution improperly failed to notify the defense of its intent to use a threatening letter which Hinojos wrote his ex-wife, and the prosecution's surprise and improper use of the letter unfairly prejudiced Hinojos.

32

We review a district court's denial of a motion for mistrial for abuse of discretion. United States v. Davis, 40 F.3d 1069, 1079 (10th Cir.1994), cert. denied, 115 S.Ct. 1806 (1995). Unless the defendant can show prejudice, "prosecutorial misconduct alone will not support a finding that the trial court abused its discretion." United States v. Novak, 918 F.2d 107, 110 (10th Cir.1990). If, as here, the error is nonconstitutional, the defendant must show that the misconduct had a substantial influence on the trial's outcome or leaves grave doubt as to whether it had that effect. United States v. Santiago, 977 F.2d 517, 520 (10th Cir.1992) (citing United States v. Lonedog, 929 F.2d 568, 572 (10th Cir.), cert. denied, 502 U.S. 854 (1991)). In determining whether a particular instance of misconduct was harmless or prejudicial, we consider any curative instructions, the extent of the misconduct, and its role in the trial as a whole. Id.

33

In this instance, Hinojos contends that the prosecution's questions regarding the threatening letter were improper under any evidentiary standard. We agree with the district court's conclusion that the questioning was improper. R. Vol. V at 230-31. However, the letter itself was never introduced into evidence, and any potential prejudice created by the prosecutor's isolated misconduct was cured by the court's immediate admonition to the jury.4 Id. at 235. Furthermore, our review of the record and the ample evidence against Hinojos convinces us that the improper reference did not substantially influence the jury's verdict. Therefore, we conclude that the error was harmless, and the district court did not abuse its discretion in refusing to grant a mistrial.

34

C. Fine for Costs of Incarceration. As his final claim of error, Hinojos argues that the district court erred in imposing a fine for payment of costs of imprisonment in the absence of a punitive fine. We agree.

35

The court will review "legal questions concerning the sentencing guidelines de novo." United States v. Mondaine, 956 F.2d 939, 941 (10th Cir.1992). " '[A]n "additional fine" under Sec. 5E1.2(i) cannot be imposed unless the court first imposes a punitive fine under Sec. 5E1.2(a).' " United States v. Edmonson, 962 F.2d 1535, 1548 (10th Cir.1992) (quoting United States v. Labat, 915 F.2d 603, 607 (10th Cir.1990)). In oral argument, the government conceded that the court did not impose a punitive fine under Sec. 5E1.2(a). Rather, the record reveals that the court imposed the fine "to make restitution of ... part of the cost ... of his imprisonment," and any other fine was waived because of Hinojos' inability to pay. R. Vol. VI at 6; see also R. Vol. I, Tab 30. As in Edmonson, when it is undisputed that the court imposed no punitive fine, the additional fine must be vacated.

36

Accordingly, the district court's order denying the motion to suppress is VACATED; its imposition of the fine is VACATED; and the case is REMANDED for further proceedings. If further proceedings result in the district court's suppression of evidence which the defendant sought to have suppressed in his initial motion, then the district court shall vacate the defendant's conviction and sentence and grant a new trial.

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

1

The government also argues that the additional "questions asked by Trooper Lankster" were in the nature of a consensual "police-citizen encounter." Appellee's Br. at 19-20. Our case law is clearly contrary. So long as Trooper Lankster held Hinojos' license, he was not free to leave, and therefore, the encounter was not consensual. Soto, 988 F.2d at 1557; see also McSwain, 29 F.3d at 562 n. 1

2

Although Lankster once referred to the trip being a "couple of weeks," he later specifically and repeatedly stated Hinojos' expressed intention to be in Illinois for "about a week," "seven days," and a "week's stay," and he also stated his understanding that the passenger had his personal belongings separately behind the seat. R. Vol. IV at 11, 38, 50-51

3

Certainly, Hinojos' ethnicity provides no basis

4

The court gave the following curative instruction:

Ladies and gentlemen of the jury, I admonish you to totally disregard any statements contained in that letter. Woe the man who irritates an ex-wife or vice versa. We have now presented to the jury what is an apparent threat that has no connection or relevance to the issues before you. I admonish you and direct you to totally disregard the information contained in that letter.

R. Vol. V. at 231-32.