UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 03-3082
JOSE JURADO-VALLEJO,
Defendant - Appellee.
ORDER
Filed August 19, 2004
Before SEYMOUR, HARTZ, and TYMKOVICH, Circuit Judges.
Upon the court’s own motion, the order and judgment filed February 10, 2004 is
hereby published. The opinion is filed as of February 10, 2004 and is attached, along
with the opinion after remand, to this order.
Entered for the Court
PATRICK FISHER, Clerk of Court
by:
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 10 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 03-3082
JOSE ALONSO JURADO-VALLEJO,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 02-CR-40115-01-JAR)
Richard A. Friedman, Appellate Section, Criminal Division, United States Department of
Justice, Washington, D.C. (Eric F. Melgren, United States Attorney, Nancy Landis
Caplinger, and Thomas G. Luedke, Assistant United States Attorneys, Topeka, Kansas,
with him on the briefs), for Plaintiff - Appellant.
Melody Evans, Assistant Federal Public Defender (David J. Phillips, Federal Public
Defender, with her on the brief), Topeka, Kansas, for Defendant - Appellee.
Before SEYMOUR, HARTZ, and TYMKOVICH, Circuit Judges.
HARTZ, Circuit Judge.
Defendant, Jose Alonso Jurado-Vallejo, was indicted on two counts: (1)
possession with intent to distribute more than five kilograms of a mixture or substance
containing cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A); and (2) conspiracy
to possess with intent to distribute more than five kilograms of a substance containing
cocaine, in violation of 21 U.S.C. §§ 846 & 841(b)(1)(A) and 18 U.S.C. § 2. The
incriminating evidence, 26 kilograms of cocaine, was obtained in a search of his sport
utility vehicle. Ruling that the Kansas state trooper who conducted the search had neither
probable cause nor consent to search the vehicle, the district court ordered that the
evidence be suppressed. The government appeals the district court’s suppression order
and the denial of its motion to reconsider. Exercising jurisdiction under 18 U.S.C. §
3731, we remand the case to the district court for further proceedings.
I. BACKGROUND
A. Facts
On the morning of September 22, 2002, Defendant was driving his 2002 Ford
Expedition on Interstate 70 in Kansas. Kansas Highway Patrol Trooper Greg Jirak,
traveling in the passing lane, approached the vehicle from the rear and noticed a “beauty
ring” bracket obscuring the license plate. He testified that he also observed modifications
to the vehicle’s bed and underbody that suggested the presence of a hidden compartment.
In particular, there appeared to be a “lift” lowering the vehicle’s underbody three inches
from its bed, and the vehicle’s bed was squared off, rather than rounded like the factory
-2-
model. He also said that he could see a seam, which appeared to have been bonded and
coated, where the compartment had been added. The compartment was sizeable, running
“from the backseats to the rear of the vehicle[,] and the entire width of the vehicle.” Aplt.
App. at 13.
Jirak testified that in his experience such compartments are used to transport illegal
drugs. He had been personally involved in 12 to 15 prior stops in which similar
compartments were built into the beds of pickup trucks or sport utility vehicles; on at least
six of these occasions, the vehicle had the same type of lift. Although he had not initiated
the stop of such a vehicle for about five years prior to his stop of Defendant, he had been
involved with the seizure and forfeiture of such a vehicle just a month or two earlier, and
his total experience with hidden vehicle compartments used to transport drugs included
more than 100 cases.
Jirak stopped Defendant for having an obscured license plate. Defendant concedes
that the license-plate violation justified the initial stop. Once Defendant had pulled over,
Jirak requested his driver’s license and insurance information, which Defendant provided.
(It became apparent that Defendant did not speak English, but he and Jirak communicated
using hand signals and Jirak’s rudimentary knowledge of Spanish.) Jirak did not ask for
registration papers, but he noticed that Defendant’s vehicle had Mexican license plates
issued by the state of Chihuahua. Defendant had a Mexican driver’s license, and his
vehicle had been insured in Texas two days before, on September 20, 2002. Jirak then
-3-
returned to his patrol car to write a warning citation for the license-plate violation. As he
did so, he looked through the window into the cargo area of Defendant’s vehicle and also
glanced at its underbody.
Jirak called for backup and then walked to Defendant’s vehicle to return his
paperwork and give him the citation. After saying “adios,” but before Defendant could
pull away, he asked him, “puedo registro,” Aplt. App. at 21, and Defendant responded
affirmatively. Jirak believed that he was requesting permission to search the vehicle; but
the district court credited testimony that “puedo registro” is an ungrammatical way of
asking for Defendant’s registration. Jirak motioned for Defendant to get out of the
vehicle and Defendant complied. Jirak stooped down and inspected the rear driver’s side
wheel well for two to three seconds. He then commenced his search, accessed the hidden
compartment through the vehicle’s interior, and discovered approximately 26 kilograms
of cocaine.
B. Proceedings Below
In response to Defendant’s motion to suppress, the government contended that
Defendant consented to the search of his vehicle. The district court granted Defendant’s
motion, finding that “there was no probable cause to search the vehicle, and no valid
consent to search.” Aplt. App. at 88.
The government filed a motion for reconsideration, asking the district court to
revisit its ruling on consent, and also contending that the search was supported by
-4-
probable cause. On February 27, 2003, the district court denied the motion. After
examining this court’s precedents on vehicle searches based on a police officer’s
suspicion of a hidden compartment, the district court ruled:
Because Trooper Jirak did not obtain a valid consent he needed probable cause to
search the Expedition. While his observations of what appeared to be a
modification of the factory bed provided him with reasonable suspicion to further
detain and investigate, he did not utilize that detention to confirm his suspicions
and obtain probable cause to search. As such, the evidence must be suppressed.
Aplt. App. at 96. The government timely appealed to this court.
II. ANALYSIS
On appeal the government argues that Jirak had probable cause to search
Defendant’s vehicle and was not required to conduct a more extensive examination to
confirm his observation that the vehicle contained a hidden compartment. 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 . . . .” United States v. Olguin-Rivera, 168 F.3d 1203, 1204 (10th
Cir. 1999). When reviewing for clear error its findings of fact, “[t]he 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.” United States v. Browning, 252
F.3d 1153, 1157 (10th Cir. 2001) (internal quotation marks omitted).
“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.”
-5-
United States v. Nielsen, 9 F.3d 1487, 1489-90 (10th Cir. 1993) (internal quotation marks
omitted). “Probable cause is measured against an 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). “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, “It 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).
Whether probable cause to search a vehicle can be based on evidence of a hidden
compartment depends on two factors: (1) the probative value of the evidence—that is,
-6-
the likelihood that there really is a hidden compartment; and (2) the likelihood that a
vehicle with a hidden compartment would, in the circumstances, be secreting contraband.
In this case the second factor is not a concern. If the vehicle had a hidden compartment, it
was highly likely to contain contraband. Jirak testified that he had found evidence of
drug activity whenever a hidden compartment had been discovered. This testimony is not
challenged on appeal and apparently was credited by the district court. Moreover, this
expert experience conforms with common sense; it is hard to conceive of a legitimate use
for a large hidden storage compartment in any vehicle, let alone one with the cargo space
of a Ford Expedition. We also note that it appeared that the vehicle had recently crossed
into this country from Mexico, a common origin of illicit drugs.
The first factor, however, is problematic. It is unclear to us what facts were found
by the district court regarding the evidence of a hidden compartment. On one hand, we
could read the court’s order as crediting all Jirak’s testimony but ruling that probable
cause could not be established unless he took steps to “confirm” or “verify” conclusively
the existence of a hidden compartment. Such a requirement, however, would be
incorrect. As the very words suggest, “probable cause” is a matter of probabilities. If
there is a “fair probability” that the vehicle contains contraband, Nielsen, 9 F.3d at 1489-
90, probable cause exists. Because we look to the totality of the circumstances, the law
does not require greater proof—certainly not conclusive proof—of any particular factor
establishing probable cause.
-7-
On the other hand, perhaps the district court did not believe, or at least did not
fully credit, Jirak’s testimony regarding the clarity of his observations or the extent of his
knowledge of the structure of motor vehicles and hidden compartments. As Defendant
points out on appeal, Jirak’s testimony was partially contradicted by the videotape of the
stop, he lacked experience observing modifications to 2002 Ford Expeditions, and it
would have been difficult to observe modifications while traveling at 65 miles per hour.
Without knowing what facts the district court found regarding what Jirak observed and
his relevant experience, we cannot resolve whether there was probable cause to search.
In this regard we note one particular concern. As we understand the district
court’s order, the court did not take into account Jirak’s observations when he stooped
down to examine the rear wheel well for two to three seconds just before beginning his
search. The court may have believed that the observations made at this time were legally
irrelevant because Jirak had already decided to search the vehicle based on Defendant’s
putative consent. But the proper inquiry is what Jirak knew prior to commencing the
search, not what he knew prior to obtaining consent. See United States v. Miller, 452
F.2d 731, 734 (10th Cir.1971) (“Would the facts available to the officer at the moment of
the . . . search warrant a man of reasonable caution in the belief that the action taken was
appropriate?” (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968) (emphasis added))). On
remand the district court should specifically indicate its findings regarding this
observation by Jirak.
-8-
Accordingly, we REMAND this case to the district court for more detailed
findings regarding Jirak’s experience and observations. It may also reconsider its legal
conclusions based on the law set forth in this order and judgment. We retain jurisdiction
over this appeal pending supplementation of the record by the district court.
-9-
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 19 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 03-3082
JOSE ALONSO JURADO-VALLEJO,
Defendant - Appellee.
OPINION AFTER REMAND
Submitted on the briefs:
Eric F. Melgren, United States Attorney, Nancy Landis Caplinger, and Thomas G.
Luedke, Assistant United States Attorneys, Topeka, Kansas; Richard A. Friedman,
Appellate Section, Criminal Division, United States Department of Justice, Washington,
D.C., for Plaintiff - Appellant.
David J. Phillips, Federal Public Defender, and Melody Evans, Assistant Federal Public
Defender, Topeka, Kansas, for Defendant - Appellee.
Before SEYMOUR, HARTZ, and TYMKOVICH, Circuit Judges.
HARTZ, Circuit Judge.
On remand the district court stated that it credited the following testimony by
Trooper Jirak:
Trooper Jirak, a Kansas highway patrolman with more than 16 years
of experience, has attended a number of courses and schools on narcotics
interdiction and investigation. He has been involved in over 100 cases
where hidden compartments have been used to transport narcotics; of these
100 plus cases, about 50 of them were cases he initiated.
Prior to effecting the traffic stop of defendant, Trooper Jirak
observed that the rear bumper of defendant’s Ford Expedition appeared to
be altered. Jirak observed that the bottom of the Expedition’s rear bumper
was “squared off,” whereas the factory installed bumper on this model is
tapered. Pulling alongside the Expedition for about one minute, and while
traveling between 65 and 70 mph, Trooper Jirak was able to see inside the
wheel well, which he testified was brightly illuminated by the sun. Jirak
testified that inside the wheel well, he could detect the bottom of the
Expedition’s truck bed; and he was able to tell that the bottom of the truck
bed was approximately 3 inches lower than the bottom of the hatchback
door, where the bottom of the factory installed truck bed should be. Jirak
testified that he could also see a seam that had been bonded and coated
over, and that such a seam would not be present in an unaltered model of
this vehicle.
Dist. Ct. Order on Remand, filed April 16, 2004, at 2-3. The district court further found:
[B]ased on his observations prior to the stop, Jirak inferred that these
perceived alterations evidenced a three inch void or discrepancy between
the bottom of a factory installed truck bed and the bottom of the altered
truck bed. Jirak certainly had the experience to make such an inference. He
had handled approximately 12 to 15 cases in which a hidden compartment
was constructed in a void created by a lift of the bed of the truck, as the
hidden compartment in this case turned out to be. Jirak had also seen seams
with undercoating where metal boxes or compartments had been added to
the bottom of the truck bed. But the existence of a void was an inference, it
is not something Jirak actually observed prior to the traffic stop.
Id. at 3.
-2-
Nevertheless, the district court reaffirmed its prior decision to suppress the
evidence. It emphasized that before the search Jirak “never observed the passenger side
of the vehicle or the wheel wells on the passenger side,” id. at 4, and bent down to look at
the driver’s side rear wheel well for only three seconds, id. at 6. The court also noted that
“Jirak did not touch or probe the rear driver side wheel well; he did not observe or inspect
the other wheel wells; and he did not observe, inspect or touch the undercarriage of the
vehicle.” Id. at 7. The court explained:
Jirak did not develop probable cause through sufficient observation and
inspection prior to commencing the search. Prior to commencing the
search, Trooper Jirak could have done a thorough visual inspection of the
other wheel wells; he could have touched the alterations he saw in the
wheel well; he could have poked, prodded or knocked on the wheel wells,
bumper or fenders to attempt to ascertain whether there was a void as he
suspected.
Id. at 10-11.
Although stating that it was “not suggesting that probable cause requires
verification of the existence of a hidden compartment,” id. at 11, the court went on to say:
[P]robable cause is developed through careful observation and inspection
that relies not only on the officer’s vision, but use of the officer’s other
senses, such as touch, where possible. Often the totality of circumstances
rendering probable cause includes other factors, as well, such as the odor of
drugs, the odor of masking agents and/or suspicious statements or behavior
by the defendant. Here, not only was there insufficient observation and
inspection, there were not other circumstances that could factor into
probable cause.
Id. at 11-12.
The district court should not have suppressed the evidence seized from
-3-
Defendant’s vehicle. In our pre-remand opinion we indicated, although perhaps not
sufficiently clearly, that if the district court credited Jirak’s testimony, there was probable
cause to search. The issue is not whether Jirak could have done more to confirm that the
vehicle had a hidden compartment. None of the opinions cited by the district court said
that visual observations must always be corroborated by touch, smell, or the like.
Probable cause exists when the evidence “would warrant a [person] of reasonable caution
to believe that evidence of a crime will be found at the place to be searched.”
United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1330 (10th Cir. 2003) (internal
quotation marks omitted). Jirak’s observations would warrant a reasonable belief that the
vehicle contained a hidden compartment. And on the facts of this case, as we said before,
“[i]f the vehicle had a hidden compartment, it was highly likely to contain contraband.”
United States v. Jurado-Vallejo, F.3d , (2004).
We REVERSE the order suppressing the evidence and REMAND for further
proceedings.
-4-