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.