United States v. Berrelleza

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 5 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 03-5000
v. Northern District of Oklahoma
OSVALDO BERRELLEZA, (D.C. No. 02-CR-94-K)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA , BALDOCK , and McCONNELL , Circuit Judges.

Appellant Osvaldo Berrelleza was stopped by Oklahoma state troopers for

speeding in a small town at 3:34 a.m. Various circumstances, including

discrepancies in insurance and vehicle registration and unusually high mileage on

the vehicle, raised reasonable suspicions that Mr. Berrelleza might be involved as

a drug courier. The troopers brought in a trained and certified drug detection dog,

which according to a trooper’s testimony alerted to the vehicle at several

*
This order and judgment is not binding precedent, except under the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.
locations. This led the troopers to find that the gas tank had recently been

removed. The troopers then transported the vehicle to the police station, where

they searched the vehicle and discovered eight shrink-wrapped packages

containing cocaine and methamphetamine.

Mr. Berrelleza pled guilty to possession with intent to distribute 4.6

kilograms of cocaine and a quantity of methamphetamine. Mr. Berrelleza entered

a conditional guilty plea, reserving the right to appeal the denial of his

suppression motion and his motion to have “the canine expert” meet the

requirements of Federal Rule of Evidence 702, as detailed in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Mr. Berrelleza also made a

motion to re-open his sentencing hearing to raise the issue of unconstitutional

racial profiling. This motion was denied by the district court. This is an appeal

of the district court’s denial of Mr. Berrelleza’s motion to suppress evidence, its

denial of the motion with regard to the police dog, and its refusal to re-open the

suppression hearing. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm.

Background

Mr. Berrelleza was stopped for speeding by Trooper Gene Hise of the

Oklahoma State Police. He was going 41 mph in a 35 mph stretch of road in the

town of Pryor, Oklahoma. Trooper Hise approached the car and asked for Mr.

-2-
Berrelleza’s driver’s license. Mr. Berrelleza produced a Texas license. Trooper

Hise noticed that the vehicle had Ohio plates, had been registered a few days

previous to the stop, and had an odometer reading of more than 100,000 miles.

Trooper Hise testified that Mr. Berrelleza exhibited extreme nervousness,

including avoidance of eye contact and trembling hands. Trooper Hise asked Mr.

Berrelleza to step out of his vehicle and come to the patrol car while Trooper Hise

ran a check on his license and the car’s registration. This check took slightly

longer than usual. Because Mr. Berrelleza had not brought the vehicle’s

insurance verification with him out of the car, Trooper Hise asked his partner,

Trooper Perry, to ask the passenger, Mr. Berrelleza’s wife, for insurance

verification. The verification showed that the insurance for the vehicle was

purchased in San Antonio, Texas just hours before the stop.

Finding these facts suspicious, Trooper Hise asked Trooper Perry to walk a

drug detection dog around the vehicle. Trooper Perry testified that the dog

alerted to the presence of drugs several times, the first being at the front of the

vehicle. Thereafter, Trooper Perry examined the vehicle and he noticed that the

gas tank bolts had recently been manipulated. All of these indicators led Trooper

Perry to believe that he had probable cause to think that the gas tank contained

drugs and that it would be reasonable for him to search it. Trooper Perry

thereafter informed Mr. Berrelleza and his passenger that his dog had alerted to

-3-
drugs and that he and Trooper Hise planned to take the vehicle to a police garage

in Pryor, Oklahoma to have the vehicle inspected. There they found vacuum

sealed packages containing compressed bricks of cocaine totaling approximately

4.6 kilograms, and some quantity of methamphetamine.

Analysis

1. Denial of the Motion to Suppress

The issues raised by the motion to suppress include: 1) whether the initial

stop of Mr. Berrelleza was justified; 2) whether he was unreasonably detained;

and 3) whether the officers had probable cause to search and seize his vehicle.

A. Standard of Review

The Fourth Amendment to the United States Constitution provides: “The

right of the people to be secure in their persons, houses, papers and effects,

against unreasonable searches and seizures, shall not be violated . . . .” U.S.

Const. amend. IV. When reviewing a district court’s ruling on a motion to

suppress, “we accept [its] factual findings absent clear error and review de novo

[its] determination of reasonableness under the Fourth Amendment[,]” all the

while viewing the evidence in the light most favorable to the government. United

States v. Olguin-Rivera, 168 F.3d 1203, 1204 (10th Cir. 1999); United States v.

Baker, 30 F.3d 1278, 1280 (10th Cir. 1994). “The credibility of witnesses, the

weight to be given evidence, and the reasonable inferences drawn from the

-4-
evidence fall within the province of the district court.” United States v. Browning,

252 F.3d 1153, 1157 (10th Cir. 2001) (internal quotation marks omitted).

Though we defer to the district court’s findings of fact, “we review de novo

the ultimate determination of the reasonableness of a search under the Fourth

Amendment.” United States v. Leyva-Serrano, 127 F.3d 1280, 1282 (10th Cir.

1997). Specifically, we examine the events that occurred leading up to the stop to

determine whether the “historical facts, viewed from the standpoint of an

objectively reasonable police officer, amount to reasonable suspicion or probable

cause.” Ornelas v. United States, 517 U.S. 690, 696 (1996).

B. The Initial Stop and Subsequent Detention

The initial stop was well within police powers, because a stop for a traffic

infraction, such as speeding, is lawful at its inception. United States v.

Callarman, 273 F.3d 1284, 1286 (10th Cir. 2001). An officer may also request

vehicle registration and driver’s license, ask about travel plans, and run driver’s

license and vehicle registration checks. United States v. Hunnicutt, 135 F.3d

1345, 1349 (10th Cir. 1998). Even after this information has been obtained, an

officer may detain for further questioning if he has an “objectively reasonable and

articulable suspicion that illegal activity has occurred or is occurring” or if the

suspect consents to further questioning. United States v. Zubia-Melendez, 263

-5-
F.3d 1155, 1161 (10th Cir. 2001) (quoting United States v. Gonzalez-Lerma, 14

F.3d 1479, 1483 (10th Cir. 1994)).

In this case, the district court noted and found credible the troopers’

testimony that it is common for drug cartels to supply a courier with a high

mileage vehicle that has only recently been registered and insured – all of which

were true in this instance. These facts, coupled with Mr. Berrelleza’s

nervousness, provided the troopers with reasonable suspicion to detain him. See,

e.g., id. at 1161. It seems that the district court also found the detention

reasonable because Trooper Hise had not received the response to the driver’s

license inquiry before the time the drug detection dog alerted. 1 We agree and find

that the initial stop and subsequent detention were reasonable under the Fourth

Amendment.

C. Probable Cause to Search

“Probable cause to search a vehicle is established if, under the totality of

the circumstances there is a fair probability that the car contains contraband or

evidence.” United States v. Nielsen, 9 F.3d 1487, 1489-90 (10th Cir. 1993)

(internal quotation marks omitted). “Probable cause is measured against an

It also bears mentioning that under our precedents inspection by a drug
1

dog “does not implicate Fourth Amendment rights because of the limited
information it provides and its minimal intrusiveness.” United States v. Morales-
Zamora, 914 F.2d 200, 203 (10th Cir. 1990); Hunnicutt, 135 F.3d at 1349-50.

-6-
objective standard”; hence, “[t]he subjective belief of an individual officer as to

whether there is probable cause . . . is not dispositive.” United States v. Davis,

197 F.3d 1048, 1051 (10th Cir. 1999) (internal quotation marks omitted). “In

determining whether probable cause exists, an officer may draw inferences based

on his own experience.” United States v. Mercado, 307 F.3d 1226, 1230 (10th Cir.

2002). As this court has previously indicated, “[i]t is well established that

evidence of a hidden compartment can contribute to probable cause to search.”

Id.; see also United States v. Vasquez-Castillo, 258 F.3d 1207, 1213 (10th Cir.

2001) (finding probable cause to search based on evidence of hidden compartment

and smell of raw marijuana); United States v. Anderson, 114 F.3d 1059, 1066

(10th Cir. 1997) (holding discovery of “what appeared to be a hidden

compartment in the gas tank,” along with other evidence, sufficient to furnish

probable cause); United States v. Nicholson, 17 F.3d 1294, 1297-98 (10th Cir.

1994) (considering, among other factors providing probable cause, a “four or

five-inch difference in the truck bottom and the floor which indicated a hidden

compartment designed to carry contraband”); United States v. Arango, 912 F.2d

441, 447 (10th Cir. 1990) (finding probable cause to arrest based in part on

evidence of hidden compartment). It is also well established that as soon as a

trained drug detection dog alerts, officers have probable cause to search. United

-7-
States v. Anchondo, 156 F.3d 1043, 1043-45 (10th Cir. 1998); Morales-Zamora,

914 F.2d at 203-04.

Mr. Berrelleza’s counsel asked this court to review the video of the stop in

question and suggested that the video demonstrates that the dog never “alerted.”

We have reviewed the videotape. It is true that the dog is not shown to alert

before the trooper and the dog enter the vehicle. However, Troopers Hise and

Perry testified that the dog alerted in front of the vehicle, outside the coverage of

the videotape, and the district court found this testimony credible. See Order

dated Aug. 7, 2002, 2 n.2, App. 100 (finding that dog alerted “at the front center

of the vehicle, the driver’s side, and inside the vehicle in the front and rearmost

compartment”); see also App. 83 (Trooper Perry testifying that the dog first

alerted at the front of the vehicle). At a hearing on a pre-trial motion to suppress,

“the credibility of the witnesses and the weight given to the evidence, as well as

the inferences and conclusions drawn therefrom, are matters for the trial judge.”

United States v. Leyva-Serrano, 127 F.3d 1280, 1282 (10th Cir.1997) (quotation

omitted). Here, because the district court made a specific finding that the dog

alerted at the front of the vehicle, which is out of view on the video, we must

defer to the district court’s decision that the officer’s testimony is credible.

Based on this, the officers had probable cause to search the vehicle, and the

-8-
district court’s denial of Mr. Berrelleza’s motion to suppress is therefore affirmed.

2. The District Court’s Decision under Rule 702 to Deny a Daubert Hearing
on the Canine.

In a rather novel tactical move, in district court Mr. Berrelleza’s counsel

requested a Daubert hearing on the canine who alerted to the drugs in Mr.

Berrelleza’s vehicle. In this Court, Appellant makes no mention of Daubert, but

argues that “an unscrupulous officer” can use the vague concept of an “alert” to

justify a warrantless search whenever he wishes. Appellant’s Br. 27-29. It is

difficult to tell precisely what legal claim this argument is offered to support. To

the extent Mr. Berrelleza is arguing that Troopers Perry and Hise fabricated the

claim that the dog alerted, we can only respond that the district court heard the

evidence, made a credibility determination in favor of the officers, and concluded

that the dog alerted at several points in the vehicle. For reasons noted in the

previous section of this opinion, this appellate court has no basis for overturning

that factual conclusion. To the extent Mr. Berrelleza is arguing that police officer

reports of canine alerts, as a categorical matter, should not be treated as a basis

for a finding of probable cause, that argument would be inconsistent with clear

precedent in this Court. See, e.g., United States v. Ludwig, 10 F.3d 1523 (10th

Cir. 1993); United States v. Williams, 726 F.2d 661 (10th Cir. 1984). To the

extent Mr. Berrelleza is arguing, as he did in district court, that there should have

been a Daubert hearing to test the expertise of either dog or handler, we review

-9-
for abuse of discretion, United States v. Nichols, 169 F.3d 1255, 1262-64 (10th

Cir. 1999), and reject the argument. Those courts which have considered the

issue have properly noted that a Daubert hearing is the wrong procedural tool to

challenge the reliability of a drug detection dog. See, e.g., United States v.

Outlaw, 134 F.Supp. 2d 807, 809 (W.D. Tex. 2001). The district court’s denial of

Mr. Berrelleza’s motion to have the dog in this case meet the requirements of

Federal Rule of Evidence 702 is therefore affirmed.

3. Denial of the Motion to Reopen the Suppression Hearing.

After his guilty plea and a change of counsel, Mr. Berrelleza requested that

the district court reopen the suppression hearing to consider for the first time the

argument that he was a victim of unconstitutional racial profiling. The district

court noted that the motion to reopen presented no new evidence or legal support,

and denied the motion. The decision to reopen a suppression hearing is within the

sound discretion of the trial court and is reviewed for abuse of discretion. United

States v. Wiseman, 172 F.3d 1196, 1207-08 (10 th Cir. 1999). The motion to

reopen below rested on a laundry list of facts and speculations, most of which are

present in any traffic stop of a member of a minority race that leads to further

investigation, and none of which distinguishes this case from the ordinary.

Without additional evidence, this Court can not logically find that the district

-10-
court abused its discretion. Therefore the district court’s denial of Mr.

Berrelleza’s motion to reopen the suppression hearing is also affirmed.

Conclusion

The district court’s denial of Mr. Berrelleza’s motion to suppress, the

district court’s denial of Mr. Berrelleza’s challenge to the canine alert, and the

district court’s denial of the motion to reopen the suppression hearing are

AFFIRMED.

Entered for the Court,

Michael W. McConnell
Circuit Judge

-11-