[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 2, 2007
No. 06-15663 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00134-CR-2-LSC-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLIMPIO MONZON-GOMEZ,
WALFRIDO CABALLERO,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(August 2, 2007)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Walfrido Caballero and Olimpio Monzon-Gomez were indicted on one
count each of possessing with the intent to distribute “100 kilograms or more of a
mixture or substance containing a detectable amount of marijuana,” in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii). They were convicted by a jury.
Caballero was sentenced to serve 63 months in prison. Monzon-Gomez, whose
base offense level under the Sentencing Guidelines was increased by two levels
for obstructing justice (testifying falsely) at trial, was sentenced to serve 78
months in prison, the low end of the applicable Guidelines range of 78 to 97
months.
Before trial, Caballero and Monzon-Gomez moved to suppress the
marijuana they were charged with possessing. They challenged as an unlawful
seizure the traffic stop that gave rise to their arrest, arguing, first, that it was not
supported by any individualized suspicion of wrongdoing and, second, that, even
if the stop was lawful at its inception, their detention nevertheless became
unlawful when the stop was extended for an unreasonable length of time without
justification. The district court rejected both arguments and denied their motions
to suppress. They appeal that denial, renewing the same arguments they made
below. Additionally, Monzon-Gomez appeals his 78-month sentence, arguing that
2
the district court, over his objection, incorrectly applied the two-level sentencing
enhancement for obstruction of justice.1
After a careful review of the briefs and the record, we conclude, first, that
the seized marijuana was not subject to exclusion under the Fourth Amendment
and, second, that the district court properly applied the two-level sentencing
enhancement. Accordingly, we affirm the denial of Caballero and Monzon-
Gomez’s motions to suppress and affirm Monzon-Gomez’s 78-month sentence.
I
In reviewing the disposition of a motion to suppress, we “review[] the
district court’s findings of fact under the clearly erroneous standard and the district
court’s application of law to those facts de novo.” United States v. Simms, 385
F.3d 1347, 1356 (11th Cir. 2004) (internal quotation marks omitted). And we
“construe the facts in the light most favorable to the party who prevailed below”
— here, the Government. United States v. Muegge, 225 F.3d 1267, 1269 (11th
Cir. 2000) (citation omitted).
“We review for clear error the district court’s factual findings necessary for
an obstruction of justice enhancement based on perjury,” United States v. Gregg,
1
Apart from this argument, Monzon-Gomez does not in any way challenge the
reasonableness of his sentence.
3
179 F.3d 1312, 1316 (11th Cir. 1999), and, in reviewing the perjury enhancement,
“[w]e accord great deference to the district court’s credibility determinations.” Id.
II
On February 18, 2006, Jude Washington, a deputy sheriff employed by the
Jefferson County Sheriff’s Department, was on patrol when he observed a car
leaving “one of the known drug houses” in Jefferson County. He began to pursue
the car when its driver “took off on me.” Washington followed the car into an old
mining community known as Mulga Mines, which is located outside of
Birmingham about nine miles from Interstate 20 (I-20). Testimony at the
suppression hearing established that the “tight windy roads” through Mulga Mines
are dangerous and cannot be safely negotiated by speeding drivers. Mulga Mines
is accessible by only one road, making it somewhat isolated.
Having lost sight of the car he was pursuing, Washington tried to locate it
by driving down a dirt road, but decided not to do so for fear of getting stuck in
the mud. The road was muddy because it had been raining on and off all day long.
As he continued his pursuit, sometime between 10:00 a.m. and 11:15 a.m.,
Washington “saw a big-rig truck backed into another muddy dirt road, which was
probably 150 feet back from” the paved road. According to Washington, the
tractor-trailer “was real deep in there” and was obscured by heavy foliage. The
4
road where Washington observed the truck, described at the suppression hearing
as a driveway, was largely “unkempt” because the single house to which it led had
been abandoned for at least six years. Washington did not “see any activity . . .
around the truck” and found it “bizarre that someone would back a truck up in that
mud and leave it there.”
Verbon Latta, another deputy sheriff in the Jefferson County Sheriff’s
Department, was also on patrol on February 18th. Latta had been patrolling
Mulga Mines on a daily basis since 2000, so he knew the area “very well.”
According to Latta, Mulga Mines is “known as a drug area,” a place where drugs
are “routinely sold” and where law enforcement officers “routinely recover stolen
items, stolen vehicles.” With regard to the driveway where Washington spotted
the tractor-trailer, Latta said that there had been “dozens” of drug arrests in that
vicinity for “crack cocaine, marijuana, and pills.” According to Latta, stolen
vehicles are routinely taken to the end of the driveway, stripped for parts, and
abandoned. In the six years since Latta had begun patrolling Mulga Mines,
authorities had recovered “over 50” stolen vehicles from that location.
Around 12:00 p.m., Latta was dispatched to the driveway in response to a
telephone call from a concerned citizen, who had called the sheriff’s office to
report a “suspicious” “18-wheeler in a driveway.” The caller had asked that
5
someone come “check it out.” After he received the dispatch, Latta heard deputy
Washington say over the radio that, based on his earlier observation, the truck had
been parked in the driveway for more than an hour. And Latta heard fellow
deputy sheriff Burton say that the truck had not been there “in the last several
days.”
As Latta was nearing the driveway, he observed a tractor-trailer traveling
toward his patrol car on the paved road “at a pretty good clip.” He estimated its
speed at 35 to 40 miles per hour. The speed limit was 25 miles per hour. Latta
was concerned about the tractor-trailer’s speed because of the sharp, curvy roads
in Mulga Mines. As the tractor-trailer passed by him, Latta observed two men in
the cab and noticed that all the tires were covered in mud. Latta turned around and
briefly followed the tractor-trailer as he radioed in its description and tag number.
Latta then turned on his flashing lights and pulled the truck over at the intersection
of Slope Drive and Mulga Loop Road. Latta testified at the suppression hearing
that he pulled the tractor-trailer over for speeding. The driver, Monzon-Gomez,
exited the cab and immediately approached Latta, seeming to indicate that he was
lost. According to Latta, Monzon-Gomez, in broken English, said, “Interstate 20,
make a left, make a right, make a left.”
Latta warned Monzon-Gomez that “he was over the speed limit,” but did not
6
issue him a citation. In an effort to help him find his destination, Latta asked
Monzon-Gomez where he was going. Monzon-Gomez responded, “Dole,” which
Latta took to mean the corporate produce supplier. Latta asked for Monzon-
Gomez’s paperwork to see if it listed an address. Monzon-Gomez handed over
some papers, but Latta could not find anything about Dole and did not see any
address for a scheduled delivery in Alabama. During this exchange, Latta found it
curious that Monzon-Gomez could have become so lost, so far away from I-20, in
an isolated community that happened to have a reputation as a “known drug area.”
Deputy Washington joined Latta at the scene less than five minutes after the
tractor-trailer was pulled over, while Latta was still examining Monzon-Gomez’s
travel papers. When Washington arrived, Latta told him that he had noticed
something odd about the back door of the trailer. The trailer was a refrigerated
trailer, and Latta knew from firsthand experience that properly equipped
refrigerated trailers are supposed to have a seal on the right-hand back door as a
safety feature to ensure that the food inside “has not been tampered with in any
way” during transport. Such seals, according to Latta, are supposed to be checked
at every delivery point. The trailer Monzon-Gomez was hauling had no such seal;
instead, the door to the trailer was outfitted with a combination lock. Latta found
the presence of a combination lock on a refrigerated trailer suspicious.
7
The deputies asked Monzon-Gomez where he and his friend were coming
from, and Monzon-Gomez responded that they were returning to Miami from
Texas. Monzon-Gomez told Washington that they had been parked in the
driveway for only “a few minutes” and that they had gone there only to turn the
trailer around. Washington found these statements suspicious for two reasons:
first, because he had seen the very same tractor-trailer parked in the driveway
earlier that morning and, second, because, before arriving at the driveway, one
would have first driven past a large church parking lot much more suitable for
turning around a tractor-trailer. Monzon-Gomez told Washington that they had
exited I-20 to get something to eat. To Washington, that explanation did not
account for why they were in Mulga Mines because the closest place to get
something to eat was at the exit “where he got off” I-20, which was nearly nine
miles away.
Washington next spoke to Caballero, who said that he and Monzon-Gomez
were returning from California, not Texas. Caballero confirmed the story given by
Monzon-Gomez that they became lost while looking for somewhere to eat and had
driven down the driveway merely to turn the trailer around. When asked what he
was carrying in the trailer, Monzon-Gomez immediately walked to the back of the
trailer and opened the doors, revealing “boxes of lettuce stacked from the floor to
8
the ceiling.” Washington noticed “a bunch of little blackberries and leaves” in the
back of the trailer, berries and leaves of the same variety he had observed growing
along the side of the driveway where the tractor-trailer had been parked.
Washington and Latta also observed muddy footprints leading into the back of the
trailer and noticed that the boxes at the top of the pile were dented and crumpled.
At first, Monzon-Gomez told Washington that he had not been in the back of the
trailer at all. But when Washington showed him the muddy footprints, Monzon-
Gomez corrected himself, saying that he had entered the trailer because his load of
lettuce had shifted and he needed to “straighten it up.” Deputy Burton, who had
since arrived on the scene, noticed muddy footprints on top of the stack of boxes.
All these observations led Washington and Latta to disbelieve Caballero and
Monzon-Gomez’s story about why they were in the Mulga Mines community.
Based on Caballero’s and Monzon-Gomez’s inconsistent statements and
their presence in a known drug area, Washington called his sergeant and requested
that a K-9 Unit be brought to the scene. Sergeant Lewis arrived moments later.
Before calling in the K-9 Unit to sweep the tractor-trailer, Lewis decided that he
and Washington should return to the driveway to have a look around. Deputies
Burton and Latta remained behind with Caballero and Monzon-Gomez.
Back at the driveway, Washington immediately spotted a number of lettuce
9
boxes in an adjacent ditch. He also saw some abandoned wooden pallets and some
white twine similar to the twine he had seen holding boxes together in the back of
the trailer minutes before. The lettuce boxes, which were dry although it had been
raining steadily all day, were open at the top and contained yellow, plastic-
wrapped bricks of marijuana, which Washington was able to identify based on his
law enforcement experience. Washington radioed deputy Burton and told him to
arrest Caballero and Monzon-Gomez.
A short time later, Philip Hill, who handles drug-detection dogs for the
Jefferson County Sheriff’s Department, arrived at the driveway. Hill’s German
Shepherd, Teddy, quickly confirmed the presence of narcotics in the discarded
lettuce boxes. Hill then took Teddy to the tractor-trailer, where Teddy
immediately alerted on the cab. Marijuana was found in two separate locations
inside the cab. In all, 966 pounds of marijuana were found in the ditch beside the
driveway, and 72 pounds were found in the cab of the truck. The entire episode —
from the time Latta pulled the tractor-trailer over until the time that the marijuana
was found and the arrests were made — lasted only 30 minutes.
III
A
Caballero and Monzon-Gomez first argue that the traffic stop was unlawful
10
at its inception because it was not supported by any individualized suspicion of
wrongdoing. We disagree. “Under the Fourth Amendment, a decision to stop an
automobile is reasonable where the police have probable cause to believe that a
traffic violation occurred, . . . and an officer’s motive in making the traffic stop
does not invalidate what is otherwise objectively justifiable behavior under the
Fourth Amendment.” United States v. Simmons, 172 F.3d 775, 778 (11th Cir.
1999) (internal citations and quotation marks omitted). The traffic stop initiated
by Latta was reasonable because Latta had probable cause to believe that the
tractor-trailer was speeding.
It goes without saying that speeding is a traffic violation that may properly
justify a traffic stop. Indeed, Monzon-Gomez and Caballero do not dispute this
point, see Monzon-Gomez’s Br. at 7 (“police officers can constitutionally pull
over a vehicle when they have probable cause to believe the car is speeding”),2
nor do they argue that Monzon-Gomez was not speeding. Instead, their only
argument is that “Deputy Latta lacked probable cause to stop the Appellant for
speeding in that the device used to measure the speed of vehicles is not
observation, but some type of radar device.” Id. at 7-8 (emphasis added). We
disagree. The Fourth Amendment plainly does not prohibit a law enforcement
2
Caballero has adopted on appeal all the arguments made in Monzon-Gomez’s brief.
11
officer from pulling over a motorist for suspected speeding whenever the officer is
acting solely on the basis of his visual observation. Stated differently, the Fourth
Amendment does not require the use of radar detection to establish probable cause
to believe a motorist is speeding.3 Caballero and Monzon-Gomez have cited no
legal authority to support their contrary position and we have found none.
The district court expressly found in its order denying Caballero and
Monzon-Gomez’s motions to suppress that “[n]othing in the record disputes the
fact that Latta observed the defendants’ speeding vehicle.” This factual finding
has not been shown to be clear error, and we accordingly conclude that the traffic
stop of the tractor-trailer was lawful under the Fourth Amendment because it was
supported by probable cause to believe a traffic law had been violated.4
B
Caballero and Monzon-Gomez next argue that, even if lawful at its
3
Monzon-Gomez’s assertion that “some type of radar device” is necessary to justify a
traffic stop for speeding is misplaced. It may well be true that visual observation alone,
unaccompanied by evidence of speeding generated by a properly tested “speed measuring
device,” Ala. Code § 32-5A-177, would be insufficient as an evidentiary matter to successfully
prosecute a speeding violation in court under Alabama law. Id. But evidentiary burdens are not
implicated where Fourth Amendment probable cause is concerned. With regard to traffic stops
under the Fourth Amendment, the question is simply whether a law enforcement officer has
sufficient cause to believe that a traffic law has been violated, not whether such a violation can
be successfully prosecuted in court.
4
The fact that Latta did not issue a speeding citation, a point emphasized by both
Caballero and Monzon-Gomez, is irrelevant to the probable-cause inquiry.
12
inception, the traffic stop became unlawful when Washington and Latta, without
reasonable suspicion of criminal activity, prolonged its duration beyond the time
“necessary to effectuate the purpose of the stop.” Monzon-Gomez’s Br. at 9.
We conclude, however, that the traffic stop was lawful at all times because the
deputies on the scene had sufficient reason to believe that Caballero and Monzon-
Gomez had engaged in criminal activity, and the 30 minutes it took to confirm the
deputies’ suspicion was not unreasonably long.
“[T]he duration of [a] traffic stop must be limited to the time necessary to
effectuate the purpose of the stop.”5 United States v. Purcell, 236 F.3d 1274, 1277
(11th Cir. 2001) (alterations added; emphasis in original). Generally, the
durational limit on a traffic stop means that the stop “may not last any longer than
necessary to process the traffic violation.” Id. (internal quotation marks omitted).
But “an officer may prolong a traffic stop” for a reasonable amount of time beyond
that which is necessary to process the traffic violation “if he has articulable
suspicion of other illegal activity.” United States v. Boyce, 351 F.3d 1102, 1106
(11th Cir. 2003). And in those circumstances, the lengthened detention may last
as long as is reasonably necessary for the officer to “pursue[] a means of
5
Caballero and Monzon-Gomez challenge only the “duration” of their detention and not
its “scope.” See Purcell, 236 F.3d at 1277 (differentiating between challenges to the duration of
a traffic stop and challenges to the scope of such a stop).
13
investigation likely to” confirm or dispel his suspicions about the criminal activity.
United States v. Street, 472 F.3d 1298, 1306 (11th Cir. 2006).
Caballero and Monzon-Gomez argue that they “should have been permitted
to leave” the scene as soon as Latta made the decision not to “issue a citation” for
speeding (the reason for the stop) and after Latta did not find “anything amiss with
Monzon’s driver’s licence [or] paper work.” Caballero’s Br. at 6. Instead, the
deputies “asked further questions,” which Caballero and Monzon-Gomez say
impermissibly lengthened their detention, thus making the stop unreasonable
under the Fourth Amendment. We disagree. Because deputies Latta, Washington,
and Burton had reasonable suspicion sufficient to justify a brief investigation
aimed at determining whether Caballero and Monzon-Gomez had engaged in
illegal activity, and because that investigation was not unreasonably long,
we conclude that their continued detention was lawful.
As an initial matter, we note that Caballero and Monzon-Gomez were
stopped in a “known . . . drug area.” Standing alone, this fact is of course not
sufficient to create the reasonable suspicion necessary to justify their continued
detention. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000).
“But officers are not required to ignore the relevant characteristics of a location in
determining whether the circumstances are sufficiently suspicious to warrant
14
further investigation.” Id. That is why “the fact that the stop occurred in a ‘high
crime area’” is “among the relevant contextual considerations” in determining the
legality of an investigatory detention. Id. The fact of their presence in a known
drug area does not stand alone in this case. Other “contextual considerations”
made the deputies suspicious that criminal activity was afoot.
When independently asked where they were coming from, Caballero said
California, and Monzon-Gomez said Texas. Monzon-Gomez told Latta that he
was looking for the Dole produce company, but the papers he handed Latta did not
show any address for that company and did not list any delivery destination in the
State of Alabama. Caballero and Monzon-Gomez told the deputies that they had
exited I-20 looking for a place to eat and had, in the process, become lost in Mulga
Mines. This part of the story did not add up to the deputies, however, because
there was a restaurant at the very I-20 exit where Caballero and Monzon-Gomez
left the interstate, yet for reasons never explained they wound up driving
approximately nine miles to an isolated community whose narrow, curvy roads
were especially inhospitable to tractor-trailers.
Monzon-Gomez told Washington that they had stopped in the driveway for
only “a few minutes” while turning the trailer around. Washington knew,
however, that the tractor-trailer had been parked “probably 150 feet” down the
15
driveway for nearly an hour, because he had seen it there between 10:00 a.m. and
11:15 a.m. and Latta had seen it leaving the driveway shortly after 12:00 p.m.
Washington also found suspicious Caballero’s statement that they were using the
driveway to turn the trailer around, because, to get to the driveway, they would
have had to drive right past a large church parking lot much more suitable to the
task.
Latta found it suspicious that there was a combination lock on the door of a
refrigerated trailer — the type of trailer which, as Latta knew from firsthand
experience, should have had a seal on the right-hand door to ensure that the
produce inside the trailer had not been tampered with. When the deputies asked
him what he was hauling, Monzon-Gomez voluntarily opened the back door of the
trailer, revealing muddy footprints, a pile of damaged lettuce boxes, and “a bunch
of little blackberries and leaves” like the ones Washington had seen growing
beside the muddy driveway. Given the presence of muddy footprints and the
presence of leaves matching those found by the driveway, it was odd when
Monzon-Gomez said that no one had been in the back of the trailer. When
Washington showed him the footprints, Monzon-Gomez quickly changed his
story, saying that he had climbed in the back of the trailer to “straighten . . . up”
his load.
16
In light of the fact that their numerous inconsistent statements rendered their
story implausible, that their trailer was not properly equipped to be transporting
refrigerated produce, and that they had spent nearly an hour (if not longer) in an
abandoned driveway in a “known . . . drug area,” we readily conclude that the
deputies on the scene had ample reasonable suspicion of criminal activity to
briefly detain Caballero and Monzon-Gomez while Washington and Lewis went to
the driveway to confirm or dispel their suspicions. Thus the duration of their
detention was not unlawfully prolonged under the Fourth Amendment.
C
Under the Sentencing Guidelines, Monzon-Gomez had a criminal history
category of I. His base offense level was 26. After concluding that he obstructed
justice by giving perjured testimony at trial, the district court increased Monzon-
Gomez’s base offense level by two points, bringing his adjusted offense level to
28. See U.S.S.G. § 3C1.1. The Guidelines sentencing range applicable to
Monzon-Gomez, following the obstruction-of-justice increase prescribed by
§ 3C1.1, was 78 to 97 months. The district court sentenced him to serve 78
months in prison.
Section 3C1.1 instructs a district court to “increase [a defendant’s] offense
level by 2 levels” if “the defendant willfully obstructed or impeded . . . the
17
administration of justice with respect to the . . . prosecution . . . of the instant
offense of conviction” and if “the obstructive conduct related to [] the defendant’s
offense of conviction.” A defendant obstructs or impedes the administration of
justice within the meaning of this provision if he “commit[s] . . . perjury” at his
trial. U.S.S.G. § 3C1.1, cmt. n. 4(b).
For purposes of § 3C1.1, perjury is defined as “false testimony concerning a
material matter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507
U.S. 87, 94, 113 S. Ct. 1111, 1116 (1993). Matters considered “material” include
“statement[s], or information that, if believed, would tend to influence or affect the
issue under determination.” U.S.S.G. § 3C1.1 cmt. n. 6.
If a defendant objects to the proposed application of § 3C1.1, “a district
court must review the evidence and make independent findings necessary to
establish a willful impediment to or obstruction of justice, or an attempt to do the
same.” Dunnigan, 507 U.S. at 95, 113 S. Ct. at 1117. Observing its obligation
under Dunnigan, the district court in this case “review[ed] the evidence” and
“ma[d]e independent findings” with respect to two separate statements6 made by
6
At the sentencing hearing, the district court identified the statements as follows:
The first [statement] is that he [Monzon-Gomez] was traveling through
18
Monzon-Gomez at trial, concluding that “those two statements are material, were
made under oath, and were necessarily false based upon the jury’s verdict.”
Monzon-Gomez does not dispute that the statements identified by the
district court were made under oath at trial, that they were material, or that they
constituted perjury within the definition set forth in Dunnigan.7 Instead, he argues
only that “[t]he district court failed to articulate a separate and independent ground
to support an enhancement” because the court imposed the enhancement based “on
the fact that the jury’s verdict was irreconcilable with the Appellant’s testimony.”
Monzon-Gomez’s Br. at 14. We disagree. In remarking on the incompatibility of
Monzon-Gomez’s trial testimony and the jury’s verdict, the district court was
making a simple credibility determination — that Monzon-Gomez testified
untruthfully — that we are bound to respect. See Gregg, 179 F.3d at 1316. This
adverse credibility determination was sufficient “to establish . . . [an] obstruction
of justice.” Dunnigan, 507 U.S. at 95, 113 S. Ct. at 1117. The district court’s
determination that Monzon-Gomez intentionally perjured himself at trial is amply
Birmingham, not because of a drug drop, but because it was a more efficient route
known based on construction and other road conditions and highway conditions.
And the second was his claim under oath that he had nothing to do with the drugs
that were dropped.
7
Monzon-Gomez does not argue that his testimony at trial was the result of “confusion,
mistake, or faulty memory.” Dunnigan, 507 U.S. at 94, 113 S. Ct. at 1116.
19
supported by the record, and we therefore affirm its application of the § 3C1.1
enhancement.
IV
For the reasons stated above, we affirm the denial of Cabarello and
Monzon-Gomez’s motions to suppress and affirm Monzon-Gomez’s 78-month
sentence.
AFFIRMED.
20
United States v. Olimpio Monzon-Gomez
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2007-08-02
Citations: 244 F. App'x 954
Copy CitationsCombined Opinion