F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 11 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-5070
(D.C. No. 97-CR-150-C)
ALBERTO GONZALEZ, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, the panel has determined
oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the case is ordered
submitted without oral argument.
Defendant Alberto Gonzalez entered a conditional plea of guilty to
possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.
*
This order and judgment is not binding precedent, except under the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.
§ 841(a)(1), reserving the right to appeal the district court’s denial of his motion
to suppress evidence. On appeal, defendant contends the court erred in denying
both his motion to suppress and his motion to supplement the record. We affirm.
I.
An officer of a multi-agency task force advised the Tulsa Police
Department that two Hispanic males, suspected of carrying drugs, were to arrive
in Tulsa on a Delta Airlines flight from California. In response, several officers
were stationed at the airport when the flight arrived to observe the passengers as
they deplaned and left the airport. Gonzalez, who was carrying a bag, was one of
two Hispanic males who got off the airplane. The two men walked through the
airport separately without conversing, but then shared a taxi from the airport
terminal. The officers followed in an unmarked car. The cab meandered and
changed directions frequently before coming to a stop along a public street. After
the cab’s hazard lights began flashing and the female cab driver appeared to lie
down in the front seat of the cab, the two men got out of the cab. The officers
approached the cab, identified themselves, and asked the men to keep their hands
in the officers’ view. In response, defendant allegedly tried to reach into his bag,
at which time at least two officers drew their weapons and ordered him to place
his hands in the air. One of the officers patted down defendant and felt hard
objects around his waist. A package fell to the ground when the officer lifted
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defendant’s shirt and slightly pulled on his waistband. Suspecting the package
contained narcotics, the officer arrested defendant. Defendant was taken to a
nearby police station where officers found two additional packages of narcotics
taped to defendant and confirmed that the package that fell to the ground did
contain narcotics.
II.
Motion to Suppress
Defendant moved to suppress the narcotics seized from his person,
asserting the officers did not have reasonable suspicion to detain him as he got
out of the cab.
When reviewing a district court’s denial of a motion to suppress, we
consider the totality of the circumstances and view the evidence in a light most
favorable to the government. United States v. Hunnicutt, 135 F.3d 1345, 1348
(10th Cir. 1998). We accept the court’s factual findings unless they are clearly
erroneous. Id. The credibility of witnesses, the weight to be given evidence, and
the reasonable inferences drawn from the evidence fall within the province of the
district court. Id. Bearing in mind that the burden is on the defendant to prove
the challenged seizure was illegal under the Fourth Amendment, United States v.
Ludwig , 10 F.3d 1523, 1526 (10th Cir. 1993), the ultimate determination of
reasonableness under the Fourth Amendment is a question of law we review de
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novo. Hunnicutt , 135 F.3d at 1348.
It is well settled that “a police officer may in appropriate circumstances and
in an appropriate manner approach a person for purposes of investigating possibly
criminal behavior even though there is no probable cause to make an arrest.”
Terry v. Ohio , 392 U.S. 1, 22 (1968). Thus, “police can stop and briefly detain a
person for investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity ‘may be afoot,’ even if the
officer lacks probable cause.” United States v. Sokolow , 490 U.S. 1, 7 (1989).
Additionally, in such cases, a frisk is justified as a means of assuring the officer’s
safety. Adams v. Williams , 407 U.S. 143, 146 (1972).
To justify an investigative detention, “the police officer must be able to
point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant [the particular] intrusion.” Terry ,
392 U.S. at 21. In determining whether an investigative detention was
reasonable, we examine first whether the stop was justified at its inception, and
second whether the scope of the stop was reasonably related to the circumstances
which justified it originally. Hunnicutt , 135 F.3d at 1348. “Whether . . . an
investigative detention is supported by an objectively reasonable suspicion of
illegal activity does not depend on any one factor, but on the totality of the
circumstances.” United States v. Soto , 988 F.2d 1548, 1555 (10th Cir. 1993).
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We conclude that under the totality of the circumstances the officers had
reasonable suspicion to briefly detain and question defendant. The Tulsa officers
were advised by a fellow law enforcement agency that two Hispanic males
arriving in Tulsa on a flight from California were suspected drug couriers. The
basis for this suspicion was not conveyed to the Tulsa officers. Defendant was
one of two Hispanic males who arrived in Tulsa on the flight. Although the
information received in this instance is too general to support reasonable
suspicion by itself, it is a factor to be considered in the reasonable suspicion
calculus, and one that weighs in favor of the government’s position. See United
States v. Soto-Cervantes , 138 F.3d 1319, 1323 (10th Cir. 1998) (“The tip [from an
anonymous tipster], when combined with other factors, justified the officers in a
brief investigative detention to investigate the allegations of drug activity.”). In
addition to information from other law enforcement officers, the Tulsa officers
observed behavior by the two Hispanic males that they reasonably considered
suspicious. The men walked through the airport at some distance from each other
and without speaking. They then met outside the terminal and left in the same
cab. The cab’s meandering route was also suspicious. Most important, when the
cab stopped at its apparent destination, the cab driver turned on the cab’s hazard
lights and appeared to lie down in the front seat of the cab. At the suppression
hearing, the arresting officer specifically testified at that point he feared for the
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safety of the cab driver.
Defendant contends each of the articulated facts that purportedly give rise
to reasonable suspicion is innocuous and entirely consistent with innocent travel.
Whether a particular fact indicates criminal activity, however, is not a proper
benchmark of whether that fact may, along with other facts, support a finding of
reasonable suspicion. Indeed, a fact that is supportive of reasonable suspicion
does not have to be at all indicative of criminal activity. See Sokolow , 490 U.S.
at 10 (“the relevant inquiry is not whether particular conduct is ‘innocent’ or
‘guilty,’ but the degree of suspicion that attaches to particular types of
noncriminal acts”). As the Supreme Court noted in Sokolow , “[a]ny one of these
factors is not by itself proof of any illegal conduct and is quite consistent with
innocent travel. But we think taken together they amount to reasonable
suspicion.” 490 U.S. at 9; see United States v. Lopez-Martinez , 25 F.3d 1481,
1484 (10th Cir. 1994) (“Our task . . . is not to pigeonhole each purported fact as
either consistent with innocent travel or manifestly suspicious.”).
It was also within the officers’ authority to conduct a brief pat down of
defendant, who appeared to reach for his bag when he was confronted by the
officers. “In the course of a valid investigative detention, an officer may conduct
a limited protective search (‘frisk’) if the officer harbors an articulable and
reasonable suspicion that the person is armed and dangerous.” United States v.
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Davis , 94 F.3d 1465, 1468 (10th Cir. 1996); see United States v. Duncan , 131
F.3d 894, 898 (10th Cir. 1997) . Where, as here, an individual makes a move that
reasonably may be perceived as threatening, officers are justified in conducting a
pat down. Cf. Davis , 94 F.3d at 1470 (no evidence that defendant “made any
threatening move towards the officers”).
Finally, it is irrelevant that narcotics, rather than weapons, were discovered
during the search. Police officers conducting a protective pat down during an
investigative detention may seize nonthreatening contraband. See Minnesota v.
Dickerson , 508 U.S. 366, 373 (1993); United States v. Lang , 81 F.3d 955, 967
(10th Cir. 1996).
Motion to Supplement Record
Defendant also contends the district court abused its discretion in denying
his “Motion to Supplement Record on Defendant’s Motion to Suppress,” which
was filed after the court ruled on the motion to suppress but before a notice of
appeal was filed from the denial of the motion to suppress. At the trial of the
other Hispanic male, the cab driver offered testimony that differed in some
respects from testimony given by the officers at defendant’s suppression hearing.
Defendant, who did not call the cab driver as a witness at his suppression hearing,
sought to supplement the record with the cab driver’s testimony from the other
trial. Defendant did not seek to reopen the suppression hearing before the district
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court, but rather renewed his motion to suppress and also asked the district court
to supplement the record after it had ruled on defendant’s initial motion to
suppress.
As the district court noted, defendant did not seek testimony from the cab
driver at the suppression hearing, despite the apparent availability of the cab
driver. Thus, the testimony is not newly discovered evidence of the type that
would warrant either reopening the suppression hearing or allowing
supplementation of the record. See Anthony v. United States , 667 F.2d 870, 875
(10th Cir. 1981). Moreover, in denying defendant’s motion, the court stated the
cab driver’s testimony would not have altered its decision to rely on the testimony
of the officers. Given these circumstances, the district court did not abuse its
discretion in denying the motion to supplement the record.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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