Officer Had Probable Cause to Stop Defendant and Reasonable Suspicion To Search Him; Denial of Motion to Suppress Affirmed

United States v. Torres, 2021 WL 422811 (10th Cir., February 8, 2021) (NM): The panel’s standard of review rulings are helpful in future appeals. However, it finds that the officer had probable cause to stop Torres for a parking violation and reasonable suspicion that he was armed and dangerous which justified a pat down search. The gun the officer found during the search could be used by the government as proof that Torres unlawfully possessed it. Although the district court ruled in the government’s favor, the panel finds that court erroneously viewed the evidence in the light most favorable to the government. Because the court used the wrong perspective for viewing the evidence, the panel disregarded its findings on disputed facts. It also said it would not review the remaining undisputed facts and inferences in the light most favorable to the government. It then looked at the undisputed facts to determine de novo, whether the officer had grounds to stop Torres for a traffic violation and whether his subsequent pat down search of Torres was lawful. The panel ruled the officer had probable cause to believe the SUV he stopped was the same one he saw several blocks earlier improperly parked. It also ruled that the officer did not unreasonably extend the stop. Torres argued the officer should have let him leave after he verified the validity of his driver’s license, registration, insurance, and medical marijuana card. That card did not give Torres a pass the panel implied, because the burnt marijuana the officer smelled gave him reasonable suspicion Torres or his passenger were “violating the federal drug laws’ prohibition against the possession of marijuana.” The officer was allowed then to hold Torres while he asked the passenger questions related to her identity. Any suspicion that developed from her answers “could reasonably extend to” Torres because “a passenger will often be engaged in a common enterprise with the driver.” Since her answers were “fishy,” the officer had reasonable suspicion to detain Torres while they questioned her. Additionally, the panel held that the officer reasonably suspected Torres was armed and dangerous, thereby justifying the pat down search. According to this panel, the following establishes reasonable suspicion that one is armed and dangerous: driving the passenger to an apartment where she tried to buy heroin; the smell of burnt marijuana inside the SUV; the officer believing Torres had a prior conviction for murder; Torres, months before the stop, was shot while unarmed; police suspected the shooting was gang-related; and Torres allegedly refused to cooperate in the investigation of the shooting. “Given Mr. Torres’s lack of cooperation, the police could reasonably infer that he would protect himself by carrying a gun.” Being involved in an attempted drug transaction adds to the reasonable probability Torres would be armed.

Warrantless seizure of firearm violated Fourth Amendment

United States v. Chavez, 2021 WL 191660 (January 20, 2021) (published): The panel finds that the warrantless seizure of a firearm from a car Chavez was driving was unreasonable and not justified as an inventory search or by the community care taking doctrine. Chavez sped away from a traffic stop but was chased by an officer. After losing Chavez momentarily, the officer then saw the car up a dirt road parked in front of trailer with its headlights and taillights still on. The officer drove onto the property, got out and saw Chavez’s dog in the car, but not Chavez. Other officers arrived and one noticed that the car “was in the drive gear.” He “worried the car might move forward.” So he opened the driver’s door and put the car in park. While inside he saw on the driver-side floorboard a “rubber grip” that he thought was a handgun in a holster. He left it there and got out of the car. A neighbor told the officers the car and the dog belonged to the man and woman living in the trailer. Another officer found Chavez outside and without Miranda warnings demanded to know if he was a felon. Chavez said he was. The officer arrested Chavez and walked him to his car. The officer said as he walked by Chavez’s car he too saw a firearm under the seat on the floorboard. Another officer checked on Chavez through a law enforcement database. He found out that Chavez had been arrested several times and was driving on a suspended license. With this information, the officers decided to inventory Chavez’s car, then have it towed and impounded. After an officer photographed the firearm inside the car, another seized it. When they were done with the inventory, a woman came from the trailer to claim the car. She said that she and Chavez were in a relationship and he sometimes used her car. An officer verified her ownership and turned it over to her. She said she didn’t know anything about the gun in the car. The officer who had the gun, kept it. The district court ruled the inventory search complied with the 4th Amendment. The officers did not act in bad faith, it said, and although they did not impound the car, they “had reasonably believed the car would be impounded.” Thus, the officer’s continued seizure of the handgun was reasonable. The panel disagreed. It criticized the district court for coming to this conclusion “without analysis.” The officers’ inventory search was not lawful because the Bernalillo County Sheriff Office policy did not allow officers to impound a car from private property. That may only be done when the car is needed as evidence or pursuant to lawful court order. Those exceptions did not apply here. The panel also said the court incorrectly found the officers could inventory the car because Chavez had been arrested. The car was on the owner’s private property and the Sheriff’‘s policy barred the officers from impounding it. Additionally, the court cited no authority justifying the continued seizure of noncontraband property taken during an inventory search, whether valid or invalid, after the impoundment was called off. Further, the panel held the community caretaking exception did not apply. The car was not parked in a public area or at a commercial business, readily accessible to children, vandals or thieves. Instead, it was lawfully parked at the end of a long, private, dirt road, outside an isolated trailer. It was unlikely someone would take the firearm in these circumstances. The panel noted that the women to whom the car belonged could have taken the gun into the trailer. Although she was able to do so, the officer that took the gun never asked her permission to take it from the car. Finally, the panel ruled that the officers did not have probable cause to seize the gun. Although Chavez’s admission that he was a felon could have given them probable cause, he said that without first being told his rights under Miranda. Relying on Vogt v. City of Hays, 844 F.3d 1235, 1241-42 (10th Cir. 2017), the panel said that the Fifth Amendment’s protection against self-incrimination extends to pretrial proceedings, like preliminary and suppression hearings. Thus, the government was barred from using Chavez’s statement to establish probable cause. Without probable cause, the government could not use the automobile or plain view exceptions to justify the officer’s seizure of the gun. These exceptions apply only if there was probable cause to believe that Chavez had committed or was committing a crime involving the gun. Chavez’s noted behavior - maintaining a steady gaze, rolling his shoulder and leaning forward as if to reach something underneath his seat and quickly speeding away might have been reasonably suspicious but did not cross the threshold into probable cause.