F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 28, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-3193
ED ER ZA M U D IO -C AR RILLO ,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. NO . 05-CR-10228-W EB)
E. Jay Greeno, W ichita, Kansas, for D efendant-Appellant.
Eric F. M elgren, United States Attorney (Brent I. Anderson, Assistant United
States Attorney, with him on the brief), District of Kansas, W ichita, Kansas, for
Plaintiff-Appellee.
Before M U RPH Y, M cKA Y, and M cCO NNELL, Circuit Judges.
M U RPH Y, Circuit Judge.
I. Introduction
Appellant, Eder Zamudio-Carrillo was charged in a superseding indictment
with drug and immigration crimes. Zamudio-Carrillo filed a motion to suppress
statements he made during his arrest and subsequent detention and evidence
seized during a search of the vehicle he was driving at the time of his arrest. The
district court denied the motion and Zamudio-Carrillo entered a conditional guilty
plea to Counts 1 and 2 in the superseding indictment. He was sentenced to
seventy-two months’ imprisonment and three years’ supervised release.
Zamudio-Carrillo then brought this appeal challenging the denial of his
suppression motion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm the denial of Zamudio-Carrillo’s motion.
II. Background
Trooper John Rule, an officer with the Kansas Highway Patrol, was
patrolling a stretch of I-70 in northwest Kansas w hen he observed a w hite Ford
Explorer w ith Arizona specialty license plates 1 traveling in an eastbound lane.
Rule, who was traveling westbound, testified he suspected the Explorer had a
false compartment because the rear of the vehicle was raised higher than normal.
Rule turned his patrol car around in the median and attempted to catch up to the
Explorer. As he pursued the Explorer, Rule passed a green Ford Escape, traveling
approximately a quarter mile behind the Explorer and displaying the same
Arizona specialty plate.
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Rule testified the license plate was decorated with pictures of handprints
and bore the message, “It shouldn’t hurt to be a child.”
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Rule, who was traveling parallel to the Explorer, looked across the lane
into the Explorer’s rear wheel well. Rule testified he was able to see a heavy
layer of fresh undercoating and became certain the Explorer contained a false
floor compartment. As he dropped back behind the Explorer and prepared to
initiate a traffic stop, Rule observed the driver of the Explorer commit a traffic
violation. Rule activated his emergency lights and pulled the Explorer over to the
shoulder of the road. As Rule radioed in the license plate number for the
Explorer, the green Ford Escape passed him and Rule noticed the Escape’s
Arizona specialty license plate was sequentially numbered.
Rule approached the passenger window of the Explorer and asked the
driver, Archy Beltran-Lugo, for her driver’s license. Rule then twice asked
Beltran-Lugo whether she was traveling with another vehicle and she answered no
both times. Rule testified he disbelieved Beltran-Lugo because he considered the
odds that two unrelated vehicles w ith sequentially numbered, out-of-state
specialty license plates would be traveling within half a mile of each other on a
Kansas highway to be “astronomical.” Rule then looked underneath the rear of
the Explorer and confirmed the presence of a false compartment approximately
four inches deep and running the width and length of the rear cargo area.
Because Rule believed Beltran-Lugo was traveling in tandem w ith the driver of
the Escape, he contacted dispatch and asked them to send an officer to locate the
Escape. In response to the call, Trooper Steven Harvey pulled up to Rule’s
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location and Rule gave him a brief description of the Escape. Harvey then left in
pursuit of the Escape.
After arresting Beltran-Lugo, Rule ran his drug dog around the Explorer.
The dog entered the vehicle and alerted to the rear cargo area. Rule testified he
did not make a thorough search of the area at that time because he believed it
would be a significant undertaking to expose the hidden compartment and its
contents.
W hile Rule detained Beltran-Lugo, Trooper Harvey pulled the green Escape
over approximately eight miles down the highway. The Escape was driven by
defendant Zamudio-Carrillo. After reviewing Zamudio-Carrillo’s driver’s license,
Trooper Harvey asked him to step out of the vehicle, patted him down, and then
handcuffed him.
Both the Explorer and the Escape were towed to highway patrol
headquarters. Officers searched the Explorer and found twenty-three kilograms
of cocaine hidden in the false compartment. During an inventory search of the
Escape, officers discovered a hidden compartment containing nine kilograms of
cocaine and fifteen kilograms of heroin.
Zamudio-Carrillo was charged with one count of possession with intent to
distribute more than five kilograms of cocaine and one count of possession with
intent to distribute more than one kilogram of heroin, in violation of 21 U.S.C.
§ 841(a)(1); one count of traveling in interstate commerce to promote an unlawful
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activity, in violation of 18 U.S.C. § 1952(a)(3); and one count of unlawful entry
into the U nited States by an alien, in violation of 8 U.S.C. § 1325(a)(1). He
moved to suppress statements he made during his detention and the evidence
found during the search of the Ford Escape. The district court denied the motion,
ruling the seizure and arrest of Zamudio-Carrillo and the seizure and search of his
vehicle were supported by probable cause and, thus, were reasonable under the
Fourth A mendment. The court stated, “Under the totality of the circumstances,
the facts known to the officers in addition to the apparent presence of a false
compartment in the Explorer would have suggested to a reasonable person that the
drivers of these two vehicles were engaged in a joint enterprise involving drug
smuggling.” Zamudio-Carrillo pleaded guilty to one count of possession with
intent to distribute cocaine and one count of possession with intent to distribute
heroin but preserved his right to appeal the denial of his suppression motion.
III. Discussion
W hen reviewing a district court’s denial of a motion to suppress, we review
the district court’s factual findings for clear error and consider the evidence in the
light most favorable to the Government. United States v. Grim mett, 439 F.3d
1263, 1268 (10th Cir. 2006). The Fourth Amendment does not prohibit
warrantless arrests based on probable cause. Apodaca v. City of Albuquerque,
443 F.3d 1286, 1289 (10th Cir. 2006). Probable cause to arrest exists when the
“facts and circumstances within the officers’ knowledge, and of which they have
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reasonably trustworthy information, are sufficient in themselves to warrant a man
of reasonable caution in the belief that an offense has been or is being
comm itted.” United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004)
(quotation omitted). Probable cause is measured against an objective standard of
reasonableness and may rest on the collective knowledge of all officers involved
in an investigation rather than solely on the knowledge of the officer who made
the arrest. Id.; United States v. M erritt, 695 F.2d 1263, 1268 (10th Cir. 1982).
“The ultimate determination of whether probable cause to arrest existed is a legal
issue that w e review de novo.” Valenzuela, 365 F.3d at 896.
Zamudio-Carrillo argues the initial stop of his vehicle was improper
because Trooper Harvey did not observe him commit a traffic violation and did
not have reasonable articulable suspicion that a traffic violation had occurred. H e
further argues that even if the initial stop was proper, Trooper Harvey lacked
probable cause to detain and arrest him. After considering Zamudio-Carrillo’s
arguments in light of the record, we conclude the discovery of a false
compartment in the Ford Explorer coupled with objective information indicating
Beltran-Lugo was traveling in tandem w ith Zamudio-Carrillo gave Trooper
Harvey probable cause to stop and seize Zamudio-Carrillo. See United States v.
Callarman, 273 F.3d 1284, 1287 (10th Cir. 2001) (“[E]ither probable cause or
reasonable suspicion is sufficient to justify a traffic stop . . . .”).
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This court employs a two-factor test to determine whether evidence of a
hidden compartment is, by itself, sufficient to establish probable cause: (1) “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.” United States v. Jurado-Vallejo, 380 F.3d 1235, 1238 (10th Cir.
2004). As to the first factor, at the time Zamudio-Carrillo was stopped by
Trooper H arvey, observations made by Trooper Rule strongly supported his
conclusion the Ford Explorer driven by Beltran-Lugo contained a hidden
compartment. Trooper Rule testified he visually inspected the underside of the
Explorer and observed that a crudely constructed metal panel had been installed
around the gas line and a fresh layer of undercoating had been applied to the area.
He testified he had previously seized six to ten Explorers and numerous other
sport utility vehicles w ith false compartments beneath the floor, all constructed in
basically the same way.
As to the second factor, Trooper Rule testified he could think of no
legitimate reason to add a false compartment to a vehicle. Neither Zamudio-
Carrillo nor Beltran-Lugo testified at the suppression hearing and neither offered
any explanation for the presence of the compartment. Further, we observed in
Jurado-Vallejo that “if the vehicle ha[s] a hidden compartment, it [is] highly
likely to contain contraband.” Id.
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Zamudio-Carrillo’s challenge to his arrest focuses primarily on the
reasonableness of Trooper Rule’s belief that he was traveling in tandem with
Beltran-Lugo. Relying on this court’s decision in Valenzuela, Zamudio-Carrillo
asserts the discovery of the hidden compartment in the Explorer did not provide
the troopers w ith probable cause to arrest him because they had no reasonable
basis to believe he had any connection to the Explorer. In Valenzuela, Border
Patrol agents in New M exico stopped a vehicle and arrested the driver, believing
she was traveling in tandem w ith a second vehicle in which officers had
discovered a large quantity of marijuana. 365 F.3d at 895. The Government
argued there was probable cause for the warrantless arrest because the Border
Patrol agents reasonably believed the defendant was acting in concert with the
driver of the vehicle transporting the marijuana. Id. at 897. The G overnment’s
argument was supported by evidence the two vehicles, inter alia, (1) both had
Arizona license plates, (2) were traveling within fifty miles of the M exican
border, and (3) drove in close proximity to each other for twenty-five miles on
two separate highways and through a town “where there were many opportunities
to turn off the road or stop.” Id. The district court granted the motion to
suppress and this court affirmed, holding there was insufficient factual support for
a reasonable belief the two vehicles were traveling in tandem. Id. at 901.
Although Zamudio-Carrillo asserts his situation is “similar” to the one
presented in Valenzuela, the Government has highlighted several factors not
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present in Valenzuela which support Trooper Rule’s conclusion Zamudio-Carrillo
was traveling in tandem w ith Beltran-Lugo. Specifically, Trooper Rule testified,
and the district court found, that the Explorer and the Escape bore sequentially
numbered, out-of-state specialty license plates. Rule testified this specialty plate
was “a very rare tag for [troopers] to see on I-70 in w estern Kansas.” Further,
Beltran-Lugo told Rule she had recently acquired the Explorer. Rule reasonably
inferred from the sequential numbering that the two tags had been purchased at
the same time or one immediately after the other, indicating a connection between
the two vehicles. Despite this apparent connection, however, Beltran-Lugo twice
denied she was traveling with the driver of the Escape. Rule testified he was
aware from prior experience that individuals smuggling drugs frequently travel in
tandem although they usually deny it. All these facts, taken together, lead to the
reasonable conclusion Zamudio-Carrillo’s vehicle was connected to Beltran-
Lugo’s illegal activity. These circumstances make this case distinguishable from
Valenzuela.
IV. Conclusion
W e conclude there is ample support for the conclusion Trooper Harvey had
probable cause to arrest Zamudio-Carrillo based on an objectively reasonable
suspicion he was traveling in tandem w ith a vehicle transporting drugs in a hidden
compartment and, thus, involved in criminal activity. Accordingly, Zamudio-
Carrillo’s arrest, detention, and the subsequent inventory search of his vehicle did
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not violate the Fourth Amendment. See United States v. Lugo, 978 F.2d 631, 636
(10th Cir. 1992). The district court’s order denying Zamudio-Carrillo’s motion to
suppress is affirmed.
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