F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 26, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-1226
RAMON MARTINEZ, a/k/a Eidi (D.C. No. 04-CR-00429-MSK)
Burciaga-Orosco, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MCCONNELL, BALDOCK, and TYMKOVICH, Circuit Judges.**
A jury found Defendant Ramon Martinez guilty of distributing or aiding and abetting
the distribution of 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841
and 18 U.S.C. § 2; and conspiracy to commit the same in violation of 21 U.S.C. § 846. The
district court sentenced Defendant to 360 months imprisonment. Prior to trial, Defendant
filed two motions to suppress. Defendant’s first motion sought to suppress large sums of
cash uncovered during a traffic stop. Defendant’s second motion sought to suppress
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that 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). The case is therefore
ordered submitted without oral argument.
incriminating conversations the Government recorded pursuant to a wiretap. The district
court denied both motions. Defendant argues on appeal the district court erred because (1)
the officer lacked reasonable suspicion to detain him beyond the time necessary to issue a
citation, and thus his consent to search the vehicle was the fruit of an unlawful detention; and
(2) the Government failed to establish the wiretap was necessary as required by statute. We
have jurisdiction under 28 U.S.C. § 1291. Finding no reversible error, we affirm.
I.
The historical facts are not in dispute. On January 28, 2004, agents of the Bureau of
Alcohol, Tobacco, and Firearms (ATF) and officers from the Colorado Springs Police
Department arrested Adelaida Meza-Chaidez following a controlled purchase of
methamphetamine. At the time of her arrest, Meza-Chaidez possessed approximately 580
grams of methamphetamine and $2,806 in cash. Officers also seized a ledger containing
names and phone numbers of suspected drug customers and suppliers. In exchange for
immunity from prosecution in federal court, Meza-Chaidez agreed to cooperate with law
enforcement. Meza-Chaidez identified Defendant as the owner of the drugs. She explained
Defendant operated a large drug-trafficking organization that transported methamphetamine
and cocaine from Phoenix, Arizona to Colorado Springs and Denver, Colorado. She also
consented to record telephone calls to Defendant.
In an unusual turn of events, on February 2, 2004, Thomas Neve, an officer with the
Arizona Department of Public Safety, was patrolling Interstate 40 westbound in Coconino
County, Arizona, when he observed a pickup truck that appeared to have excessively dark
2
tinted windows. Officer Neve could not see any occupants in the vehicle, which caused him
to believe the windows “were way too dark” and in violation of Arizona law. He proceeded
to stop the truck. Officer Neve approached the driver, later identified as Defendant, and
asked for his driver’s license, registration, and insurance. Defendant produced a Mexican
driver’s license identifying him as Osma Galaviz, and a vehicle registration showing the
truck was registered in Des Moines, Iowa, under another person’s name.
Officer Neve asked Defendant to step out of the truck and wait by his patrol car.
Officer Neve then proceeded to question Defendant’s passenger, Christina Alvarado, about
the nature of the trip. Alvarado responded they were on their way to visit Defendant’s sister
Elsa, and that she lived at 20th Street and Indian School in Phoenix. Alvarado further stated
she lived with Defendant in Albuquerque, New Mexico. Using a window-tint meter, Officer
Neve tested the window’s tint. The tint was three percent, an amount exceeding the darkness
Arizona law allows.
While preparing the citation, Officer Neve questioned Defendant about the nature of
the trip. Defendant told Officer Neve they were on their way to visit his sister Chris.
Defendant told Officer Neve his sister lived at 20th Avenue and Indian School in Phoenix.
Defendant further stated he lived in Iowa. Defendant’s response struck Officer Neve as odd
because it was inconsistent with Alvarado’s statements. While Defendant and Alvarado
provided slightly differing addresses for Defendant’s sister’s home, Office Neve testified this
was significant because the addresses were on opposite sides of Phoenix. Officer Neve ran
the status of Defendant’s Mexican driver’s license in Arizona, New Mexico, and Iowa, but
3
found no records. Suspicious, Officer Neve called for a backup unit.
When Officer Neve finished writing the citation, he handed the citation to Defendant
along with his driver’s license and vehicle registration. Officer Neve then asked Defendant
if he had any large sums of cash, weapons, or illegal drugs. Defendant initially stated he did
not, but then corrected himself by stating he only had cash for gas and travel. Defendant
consented to a search of the truck and signed a Spanish-language consent form. Defendant
spoke in Spanish but seemed to understand Officer Neve. Officer Neve communicated with
Defendant in both Spanish and English. Prior to searching his truck, Officer Neve patted
down Defendant as a safety precaution. Officer Neve noticed bulges in Defendant’s front
pockets. When asked about the nature of the bulges, Defendant responded it was cash.
Defendant pulled the cash from his pockets and told Officer Neve it was “about $4,000.”
Officer Neve took the cash and placed it in the windshield of his patrol car so Defendant
could see it.
During the search, Officer Neve found a handgun inside Alvarado’s purse. Officer
Neve arrested Alvarado for possession of a concealed weapon and placed her in the back of
the patrol car. For safety reasons, Officer Neve handcuffed Defendant, but explained to him
he was not being arrested. Around that time, Officer Joe Lapre and his dog arrived at the
scene. Officer Lapre took the cash that Officer Neve had recovered from Defendant and
placed it underneath the hood of the truck. Officer Lapre then walked his dog around the
truck. The dog detected a scent of drugs in a duffle bag in the bed of the truck. A search of
the bag uncovered another $4,000 in cash. The dog also alerted to the cash under the hood
4
of the truck. Officer Neve removed Defendant’s handcuffs and asked him to follow him
back to the highway patrol office. At the office, Officer Neve initiated forfeiture proceedings
on the money. Officer Neve also issued Alvarado a citation for misdemeanor possession of
a firearm and released her. Officer Neve returned $50 to Defendant for travel expenses, and
allowed Defendant and Alvarado to go on their way.
During the search of the truck, Officer Neve also recovered four cell phones. He
wrote down the numbers listed as ingoing and outgoing calls, and turned the information
over to the Federal Drug Enforcement Administration (DEA). Agent John Preeg, the lead
DEA agent in this case, noticed one of the phone numbers matched a number recovered from
Meza-Chaidez’s ledger. Meza-Chaidez had identified the number as belonging to Defendant.
After further attempts to use Meza-Chaidez in the investigation into Defendant’s drug
distribution ring failed, Agent Preeg applied for a wiretap authorization for two phone
numbers purportedly belonging to Defendant. Agent Preeg submitted an affidavit in support
of the wiretap in which he explained that normal and routine investigative techniques would
be ineffective. Where such techniques had been used, he explained, they either failed
entirely or had limited success , thus failing to achieve the full objectives of the investigation.
He further explained traditional techniques were unlikely to succeed if tried or were too
dangerous to implement. Following a hearing, on March 10, 2004, the district court granted
the application reasoning “that an interception is necessary in this case” because “it appears
that there is no other way to get the necessary information that [the Government] require[s]
under the statute other than with an interception.” The district court extended the application
5
on April 9, 2004 and again on May 7, 2004. Following the investigation, a grand jury
indicted Defendant.
II.
In challenging the denial of his motion to suppress the cash uncovered during the stop
of his vehicle, Defendant does not argue Officer Neve lacked reasonable suspicion to detain
him based on Officer Neve’s observation of a traffic violation. See e.g. United States v.
Bostero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc) (“[A] traffic stop is valid under
the Fourth Amendment if the stop is based on an observed traffic violation.”). Rather,
Defendant argues Officer Neve unlawfully detained him beyond the time it took to effectuate
the purpose of the stop. According to Defendant, Officer Neve lacked reasonable suspicion
of criminal activity to continue detaining him after Officer Neve returned his paper work and
issued him a citation. Consequently, Defendant argues his consent to search the truck was
the fruit of an unlawful detention.
A traffic stop is a seizure within the meaning of the Fourth Amendment, “even though
the purpose of the stop is limited and the resulting detention quite brief.” Delaware v.
Prouse, 440 U.S. 648, 653 (1979). A traffic stop is reasonable if (1) the officer’s action was
justified at its inception, and (2) the officer’s action was reasonably related to the
circumstances which justified the stop in the first place. See United States v. Bradford, 423
F.3d 1149, 1156 (10th Cir. 2005). We review a district court’s determination of
reasonableness de novo. See Rosborough, 366 F.3d at 1148.
6
An officer conducting a traffic stop may request a driver’s license, vehicle
registration, run a computer check, and issue a citation. See United States v. Zubia-
Melendez, 263 F.3d 1155, 1161 (10th Cir. 2001). Once an officer completes these tasks, the
officer must allow the driver to proceed on his way without being subject to further delay by
police for additional questioning. See id.; see also United States v. Edgerton, 438 F.3d 1043,
1047 (10th Cir. 2006). Absent a consensual encounter, further detention for purposes of
questioning unrelated to the initial traffic stop is permissible if the officer has an objectively
reasonable and articulable suspicion that illegal activity has occurred or is occurring. See
Zubia-Melendez, 263 F.3d at 1161. Reasonable suspicion exists where an officer has a
“particularized and objective basis for suspecting legal wrongdoing.” United States v.
Arvizu, 534 U.S. 266, 273 (2002). We determine whether reasonable suspicion exists from
the totality of the circumstances. See id.
We agree with the district court that Officer Neve developed reasonable suspicion
during the traffic stop to justify Defendant’s continued detention after he returned
Defendant’s paperwork and issued him a citation for excessive window tinting. We have
previously held that contradictory answers to an officer’s questions can contribute to
reasonable suspicion of illegal activity. See, e.g., Zubia-Melendez, 263 F.3d at 1162
(reasonable suspicion existed where passenger and driver did not know each other’s name
and provided inconsistent answers regarding where they had spent the night). See also
United States v. Wallace, 429 F.3d 969, 976 (10th Cir. 2002) (reasonable suspicion present
where the driver and passenger gave the officer inconsistent answers regarding their
7
relationship and the type of motorcycle they were transporting). Undoubtedly, some of the
factors Officer Neve cited as making him suspicious may, standing alone, be dismissed as
innocent or susceptible to varying interpretations. Nevertheless, a “determination that
reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.”
Arvizu, 534 U.S. at 277. When determining whether a detention is supported by reasonable
suspicion, we must “defer to the ability of a trained law enforcement officer to distinguish
between innocent and suspicious actions.” Zubia-Melendez, 263 F.3d at 1162; see also
Arvizu, 534 U.S. at 273-74 (noting officers may draw from their own experience and
specialized training to make inferences that may very well elude an untrained person).
Slightly conflicting answers, such as those Defendant and Alvarado gave to Officer Neve,
may establish a particularized and objective basis for reasonable suspicion, notwithstanding
that each of the factors alone is susceptible to innocent explanation. See Arvizu, 534 U.S.
at 277; see also United States v. Sokolow, 490 U.S. 1, 9 (1989) (holding a factor may
contribute to reasonable suspicion even where it “is not by itself proof of any illegal conduct
and is quite consistent with innocent travel”). The inconsistencies, seen through the eyes of
a trained law enforcement officer, support a finding of reasonable suspicion and justified
Defendant’s prolonged detention. Because Defendant voluntarily consented to a search of
his truck while lawfully detained, no basis exists for suppressing the evidence uncovered
during the search.3
3
Defendant also argues Officer Neve violated his Fourth Amendment rights when
the officer unreasonably prolonged the traffic stop by conducting additional investigation
8
III.
Defendant also challenges the district court’s order denying his motion to suppress
conversations the Government recorded pursuant to a wiretap. He argues the affidavits in
support of the wiretap application and subsequent extensions did not establish a necessity for
the wiretap as required under Title III of the Omnibus Crime Control and Safe Streets Act
of 1968. See 18 U.S.C. §§ 2518(1)(c), 2518(3)(c). More specifically, Defendant argues the
affidavits failed to state with particularity why the Government did not pursue traditional
investigative techniques, but instead, contained boilerplate language that could be applied
to all drug conspiracy cases. We review for an abuse of discretion a district court’s
determination a wiretap is necessary. See United States v. Ramirez-Encarnacion, 291 F.3d
1219, 1222 (10th Cir. 2002).
unrelated to the window tint. According to Defendant, the “undisputed facts” establish
that writing a citation for illegal window tinting would have taken six minutes, but that in
this case Officer Neve took twice that long because of the officer’s decision to conduct an
investigation unrelated to the purpose of the stop. The record, however, does not support
Defendant’s argument. The record shows that upon stopping Defendant, Officer Neve
obtained Defendant’s driver’s license, registration, and insurance papers; ran the status of
Defendant’s license and the vehicle’s registration; measured the tint level of the truck’s
window; and discussed with Defendant and Alvarado their travel plans. As he did these
things, he completed writing the citation. Officer Neve did not conduct any investigation
unrelated to the purpose of the stop. As part of a routine traffic stop, an officer may “ask
questions about the motorist’s travel plans and authority to operate the vehicle” in
addition to obtaining a motorist’s documentation, running a computer check, questioning
a passenger about travel plans, and issuing a citation. United States v. Alcaraz-Arellano,
441 F.3d 1252, 1258 (10th Cir. 2006). Presumably, had Officer Neve not verified
Defendant’s documentation or asked any questions he would have completed the citation
sooner. Nevertheless, Officer Neve’s conduct was related to the purpose of the traffic
stop and sanctioned by our precedent.
9
An order authorizing a wiretap is presumed proper, and a defendant challenging its
authorization bears the burden of proving its invalidity. See United States v. Castillo-Garcia,
117 F.3d 1179, 1186 (10th Cir. 1997), overruled on other grounds by Ramirez-Encarnacion,
291 F.3d at 1221, n. 1. In order to obtain a wiretap, the Government must, among other
things, show the wiretap is necessary. See 18 U.S.C. §§ 2518(1)(c), 2518(3)(c). The
Government establishes necessity by showing “traditional investigative techniques have been
tried unsuccessfully, reasonably appear to be unsuccessful if tried, or are too dangerous to
attempt.” Ramirez-Encarnacion, 291 F.3d at 1222. Where the Government does not
implement traditional investigative techniques, it must explain why with particularity. See
Castillo-Garcia, 117 F.3d at 1187-88. Traditional investigative techniques include (1)
standard visual and aural surveillance; (2) questioning of witnesses or participants (including
the use of grand juries and the grant of immunity if necessary); (3) use of search warrants;
(4) infiltration of conspiratorial groups by undercover agents or informants; and (5) pen
registers and trap and trace devices. United States v. Vanmeter, 278 F.3d 1156, 1163-64
(10th Cir. 2002). We conduct our review of the Government’s demonstration of necessity
“in a practical and commonsense fashion” considering “all of the facts and circumstances in
order to determine whether the government’s showing of necessity is sufficient to justify a
wiretap.” Castillo-Garcia, 117 F.3d at 1187.
Having thoroughly reviewed the affidavits in support of the wiretap application and
subsequent extensions, we agree with the district court the Government properly established
a necessity for a wiretap. We need not recount here the Government’s extensive description
10
of its efforts to implement the traditional investigative techniques described above, or its
explanation as to why some of these techniques would not aid in the investigation. Suffice
it to say, the forty-seven page affidavit in support of the application and the affidavits in
support of the extensions explain with sufficient detail the investigative efforts the
Government undertook and explain with particularity the reasons why the Government did
not pursue certain traditional investigative techniques.
Defendant has randomly quoted portions of the affidavits in arguing the affidavits
contain boilerplate statements applicable to the vast majority, if not all, drug conspiracies.
Unsurprisingly, however, many drug conspiracies share similar characteristics and their
investigation presents similar difficulties for law enforcement. Generalities alone “are
insufficient to support a wiretap application.” Castillo-Garcia, 117 F.3d at 1188. But
generalities “can be made so long as they are accompanied by specific information about
how these generalities apply to the particular suspects and/or particular investigation.”
United States v. Mascarenas, 30 Fed. Appx. 784, 794, n. 10 (10th Cir. 2002) (unpublished).
To the extent the Government’s affidavit contains some generalities, these generalities are
accompanied by information pertinent to this investigation.
By way of example, Defendant points out the Government rejected the use of
undercover agents as unlikely to be fruitful because, in the words of the Government, “drug
traffickers do not like to introduce associates to their suppliers.” Defendant argues such
generalities apply to all drug conspiracies and are insufficient to support a finding of
necessity. The affidavit, however, says much more in this regard. The affidavit provides a
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description of how Defendant’s drug-trafficking operations worked in Colorado, and explains
that Defendant only did business with a few individuals who had been in the organization for
a long time. The affidavit goes on to explain the difficulties associated with an attempt to
infiltrate Defendant’s operation. In particular, the affidavit explains that if an undercover
agent were introduced, a relationship other than that of a drug buyer to drug seller would
unlikely exist, and that Defendant probably would not share information about suppliers with
a street-level buyer. Contrary to Defendant’s argument, the affidavit explains in more than
generalities that the tight-knit nature of Defendant’s operation made infiltration into the
conspiracy impracticable. 4 The Government’s affidavits sufficiently established necessity
as defined by the wiretap statute and understood by our precedent. Therefore, no basis exists
for suppressing the recorded conversions.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
4
Defendant also argues the Government used minimal investigative efforts before
seeking a wiretap. Defendant argues, for example, that the Government should have
attempted to infiltrate the organization through the use of undercover agents. We have
explained, however, that “the government need not exhaust . . . every conceivable
investigative technique before resorting to wiretapping.” Castillo-Garcia, 117 F.3d at
1188. Rather, we have “required the government to prove exhaustion–either by attempt
or explanation of why the method would not work–of all reasonable investigative
methods.” Id. The Government met its obligation in this case.
12