FILED
United States Court of Appeals
Tenth Circuit
January 28, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-5085
v. (N.D. Oklahoma)
MIGUEL ANGEL JUAREZ, (D.C. No. 4:10-CR-00005-JHP-2)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, TACHA, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Defendant and appellant Miguel Angel Juarez pled guilty to three counts:
conspiracy, in violation of 21 U.S.C. § 846; possession of marijuana with the
intent to distribute, in violation of 21 U.S.C. § 841(a)(1), as well as aiding and
*
This order and judgment is not binding precedent except under the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.
abetting, in violation of 18 U.S.C. § 2(a); and possession of methamphetamine
with the intent to distribute, in violation of 21 U.S.C. §841(a)(1) and
(b)(1)(A)(viii). Mr. Juarez was sentenced to 120 months on each count, to be
served concurrently. He reserved, however, the right to appeal the previous
denial of his motion to suppress evidence obtained following the stop of the van
he was driving. On appeal, Mr. Juarez appeals only the denial of his motion to
suppress, which we affirm.
BACKGROUND
On December 15, 2009, a confidential informant known to Tulsa County
Deputy Sheriff Lance Ramsey, told Deputy Ramsey that an Hispanic male, whose
name was unknown, was engaged in the selling and storing of marijuana and
methamphetamine. This informant had previously provided information to Tulsa
County authorities which had been accurate and had led to the arrest of three
individuals.
The informant told Deputy Ramsey that he/she 1 had been to an apartment at
8304 South 77th East Avenue in Tulsa, where he/she had seen large quantities of
methamphetamine and marijuana the night before. The confidential informant
stated that the unknown Hispanic male had received a 500-pound shipment of
marijuana the previous evening, which was not yet cut but remained in large
1
The identity and gender of the informant has not been disclosed.
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quantities. The informant also stated that the marijuana would be transported in a
white van to a location where the marijuana would be cut. The informant further
noted that, in addition to the white van, the Hispanic male also at times drove a
blue GMC pickup with “nice wheels.”
Based on the information provided by the confidential informant, the Tulsa
County Drug Task Force established surveillance at the apartment complex to
observe the apartment and white van identified by the informant. The task force
believed that the marijuana was in the white van, which was parked in the
apartment parking lot for the entire time of the task force’s surveillance.
Deputy Ramsey met with the confidential informant at a location near the
apartment complex. The informant pointed to a blue pickup truck which
happened to be driving by and identified the blue truck as being driven by the
Hispanic man involved in the drug transactions.
The blue pickup truck identified by the informant arrived at the apartment
complex at approximately 11:00 a.m. The surveillance team observed an
Hispanic male get out of the blue truck and go into the previously identified
apartment. Within a few minutes, two Hispanic males exited the apartment and
got into the blue pickup truck. Police personnel followed the blue pickup truck to
a shopping area where a Home Depot and a Staples store were located. The
government believes that the two men went into these stores. The blue pickup
truck returned to the apartment at about 1:15 p.m. One of the Hispanic men
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placed a large plastic bag in the white van. Furthermore, the men moved flattened
boxes from a maroon van in the parking lot and placed them in the white van. As
predicted by the confidential informant, the Hispanic men subsequently left the
apartment complex with one of them driving the white van and the other driving
the blue pickup truck. The blue truck was following behind the white van.
Members of the surveillance team then determined to follow the two
vehicles to obtain more information, but they were concerned about losing the
vehicles in the heavy traffic and nearby road construction. Accordingly, they
decided to stop the white van which they believed was transporting a large
quantity of marijuana, before it was able to elude them in traffic. In accordance
with that decision, Captain Thomas Huckeby pulled out into traffic behind the
blue pickup, which was, in turn, following the white van. He activated his lights
and siren. Captain Huckeby passed the blue pickup and pulled over the white
van. 2
2
The government alleges that the blue pickup, driven by Mr. Juarez’s co-
defendant Juan Gonzalez-Guytan, failed to pull over promptly when Captain
Huckeby activated his lights and siren behind Mr. Gonzalez-Guytan’s vehicle
(the blue pickup) which was, in turn, following the white van. Accordingly,
another officer followed Mr. Gonzalez-Guytan and pulled him over for failing to
heed an emergency vehicle. Since Mr. Gonzalez-Guytan is not a party to this
appeal, we do not address any issue relating to the stop of Mr. Gonzalez-Guytan.
We do note, however, that it appeared to the police that the blue truck was
blocking the van from their following police vehicles, which only contributed to
the police officers’ suspicions concerning the white van.
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Defendant Juarez was driving the white van. Captain Huckeby pulled out
his revolver and ordered Mr. Juarez out of the van. The captain explained his
decision to do this in the suppression hearing: “[W]hen I first pulled the vehicle
over with the understanding that there was 600 pounds of marijuana in there, I
opened my vehicle, got out, and noticed the driver making some movements that
concerned me. So I pulled my weapon and approached the vehicle asking the
driver for his hands.” Tr. of Supp. Hr’g at 88, R. Vol. 2. The officer further
testified that, when Mr. Juarez opened the door of the van, the officer “first
noticed the strong odor that I know to be marijuana. And then, . . . he was doing
something under the seat or to the side of the seat. I noticed . . . what I believed
at the time to be scales and plastic containers, baggies, things like that. I even
believe I saw a plastic tubing, if I remember right.” Id. at 89.
Mr. Juarez exited the van and was handcuffed. A drug-seeking dog was
summoned to the scene and the dog alerted to the van. Authorities then searched
the van and found approximately 500 pounds of marijuana in black bags, as well
as freezer bags and scales. Mr. Juarez was arrested and made incriminating
statements, after being read his Miranda rights in Spanish.
Police authorities subsequently obtained a search warrant for Mr. Juarez’s
apartment, where they found methamphetamine and a large amount of cash.
Mr. Juarez moved to suppress the evidence seized from the van he was driving, as
well as the evidence recovered from his apartment and his post-arrest statements,
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on the ground that the initial stop of his van was illegal. The magistrate judge to
whom the matter was referred held an evidentiary hearing and recommended
denial of Mr. Juarez’s motion. The district court adopted the magistrate judge’s
report and recommendation and denied the motion. This appeal followed.
DISCUSSION
“In reviewing the denial of a motion to suppress, we review the factual
findings of the district court for clear error, viewing the evidence in the light most
favorable to the government, and review de novo the reasonableness of the
government’s actions under the Fourth Amendment.” United States v. Fox, 600
F.3d 1253, 1257 (10th Cir. 2010) (citation and quotation marks omitted).
Mr. Juarez first challenges the stop of the van he was driving. He claims
the “stop of the van was effectuated because the officers involved were afraid the
contraband might get away from them in the traffic and not for a reason that
would furnish justification for the stop or investigative detention or probable
cause for an arrest.” Appellant’s Br. at 9. He further asserts that “[a]ny and all
evidence, statements and other items seized from Mr. Juarez are tainted and are
‘fruits of the poisonous tree’ and must also be suppressed.” Id. at 9-10. 3
3
In his objections to the report and recommendation of the magistrate judge,
Mr. Juarez asserted that “[t]he initial stop of the defendant was based upon mere
suspicion, hunches, and panic initiated by the fear of law enforcement officers
that they would lose what they believed to be a load of drugs in the white van
(continued...)
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The government responds that the officers had probable cause to stop the
van based on the information provided to them by the reliable informant as well
as the information they themselves gleaned from their surveillance. Mr. Juarez
does not specifically challenge the reliability of the informant, except to
challenge his motivation for providing information. 4 We have held that “[w]hen
there is sufficient independent corroboration of an informant’s information, there
is no need to establish the veracity of the informant.” United States v. Artez, 389
F.3d 1106, 1111 (10th Cir. 2004) (further quotation omitted). There was
obviously sufficient independent corroboration here. At a minimum, the
government argues, the officers had reasonable suspicion for an investigative
detention, and Captain Huckeby’s smell of marijuana and the dog’s alert to the
van provided ample probable cause to search the van and arrest Mr. Juarez.
We agree with the government that the officers had, at a minimum,
sufficient information for an investigatory stop of the van. As we have stated on
3
(...continued)
driven by defendant.” Defendant’s Objections to R. & R. at 8, R. Vol. 1 at 75.
Contrary to Mr. Juarez’s arguments, however, we conclude that the concern that
the van might get away in heavy traffic actually cuts in favor of the officers’
actions in this case. The van’s very mobility undermines Mr. Juarez’s argument
that the officers here should have obtained a warrant prior to stopping his van.
4
Mr. Juarez alleges that the informant was paid by the Tulsa County
Sheriff’s Drug Task Force, that he/she had “legal problems,” and was in some
way “assisted by” one of the officers involved in Mr. Juarez’s arrest. Appellant’s
Br. at 8. This simply suggests the motivation for the informant’s information; it
does not undermine the accuracy of that information, as the police officers
observed from their own surveillance.
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numerous occasions, “[t]he Fourth Amendment protects individuals from
unreasonable searches and seizures.” United States v. Simpson, 609 F.3d 1140,
1146 (10th Cir. 2010). One type of seizure is “an investigatory stop, which is
reasonable only if ‘justified by some objective manifestation that the person
stopped is, or is about to be, engaged in criminal activity.’” Id. (quoting United
States v. Cortez, 449 U.S. 411, 417 (1981)). While an arrest requires probable
cause, an investigatory detention is constitutional if supported by the lesser
standard of reasonable suspicion: “the officer must have reasonable suspicion to
believe that criminal activity may be afoot.” Id. (further quotation omitted).
Furthermore, “the existence of objectively reasonable suspicion of illegal
activity ‘does not depend upon any one factor, but on the totality of the
circumstances.’” Id. (quoting United States v. Soto, 988 F.2d 1548, 1555 (10th
Cir. 1993). We also must accord deference to an officer’s experience and
increased ability to distinguish between innocent and suspicious actions. Thus,
“[t]he evaluation is made from the perspective of the reasonable officer, not the
reasonable person.” United States v. Guerrero, 472 F.3d 784, 787 (10th Cir.
2007) (internal quotation marks omitted).
In this case, at the time the officers stopped Mr. Juarez’s van, they had
information from a reliable informant, which information had been corroborated
by the officers’ observations while conducting surveillance of Mr. Juarez and his
co-defendant. They had seen both vehicles identified by the informant, at the
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location identified by the informant. The officers witnessed suspicious behavior
at the apartment, followed by the departure of the two vehicles, driving in
tandem, again as predicted by the informant. When the police determined to pull
over the van, the blue pickup appeared to be acting as a blocking vehicle for a
distance; when the van finally stopped, Officer Huckeby observed furtive
behavior by Mr. Juarez, and detected a strong smell of marijuana. These
developments only enhanced the officers’ reasonable suspicion, based on the
informant’s information, that criminal conduct was afoot and that the van should
be stopped. Further, “a positive dog alert gives officers probable cause to
search.” United States v. Parada, 577 F.3d 1275, 1281 (10th Cir. 2009). All of
those circumstances justified the arrest of Mr. Juarez.
Finally, the search warrant for Mr. Juarez’s apartment was based upon the
informant’s information, the surveillance, and the search of the white van, which
yielded a large quantity of marijuana and drug paraphernalia. 5
5
Mr. Juarez also makes a brief argument that the use of a drawn weapon
and handcuffs when arresting him and taking him out of the van was unjustified
under the circumstances. We agree with the government that it was justified. We
have already concluded that the police had probable cause to arrest Mr. Juarez
once his van had been stopped, its contents identified, and his conduct during the
stop had been determined, by an experienced officer, to be suspicious and
possibly dangerous.
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CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of
Mr. Juarez’s motion to suppress.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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