United States Court of Appeals
For the Eighth Circuit
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No. 11-3055
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Mariano Valencia Mendoza
lllllllllllllllllllllDefendant - Appellant
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No. 11-3062
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jose Francisco Garza Tovar
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: March 15, 2012
Filed: September 10, 2012
Before WOLLMAN and COLLOTON, Circuit Judges, and HICKEY,1 District Judge.
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COLLOTON, Circuit Judge.
Mariano Valencia Mendoza and Jose Francisco Garza Tovar entered
conditional guilty pleas to possession with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). On appeal,
they challenge the district court’s2 denial of their motions to suppress evidence. We
affirm.
I.
On December 21, 2010, Officer Stephanie Swartz of the Des Moines Police
Department was on routine patrol when she overheard a radio request from agents of
the Drug Enforcement Administration. The agents wanted a marked unit of the police
department to stop a black Volvo sedan that was under surveillance. Swartz saw the
vehicle, pulled behind it, and made a traffic stop. In explaining the basis for the stop,
Swartz testified:
There was what appeared to be a paper tag up in the left-hand corner of
the rear window, I was pretty confident that it wasn’t an Iowa tag, I
couldn’t read the state of origin, and I had had two recent cases that I
1
The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas, sitting by designation.
2
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
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had dealt with within the past six months where people had either forged
tags for themselves or bought fraudulent tags from other people to be
displayed in the vehicle.
Swartz was approximately fifteen to twenty feet behind the vehicle when she
observed the tag and decided to stop the car. She was unfamiliar with temporary tags
from States other than Iowa and Illinois, and she was unable to read the name of a
State of origin on the tag. Swartz thought the tag looked improper and looked like
something a person could make with a printer. She also noticed that the tag’s
expiration date was written in large, handwritten block numbers. She thought this
was suspicious, because block numbering could be used to alter an expiration date.
Swartz approached the car and asked the driver, Tovar, for his driver’s license.
Tovar said he did not have a license, and Swartz asked Tovar and his passenger,
Mendoza, to step out of the vehicle. Swartz asked Tovar if there was anything in the
car that she “needed to be concerned about,” to which Tovar replied, “no, go ahead
and look.” While Swartz issued Tovar a citation for driving without a license,
another officer searched the vehicle and found controlled substances.
A grand jury charged Tovar and Mendoza with possession with intent to
distribute 500 grams or more of methamphetamine. Both defendants moved to
suppress the evidence obtained from the search of the vehicle. Noting that the vehicle
displayed a valid temporary tag from another State, they argued that Swartz’s decision
to stop the car was not supported by reasonable suspicion or probable cause. Because
the stop was unlawful, they argued, Tovar’s consent to search the vehicle and his
subsequent statements to law enforcement were the fruits of an illegal seizure.
The district court, relying on our decision in United States v. Sanchez, 572 F.3d
475 (8th Cir. 2009), denied the motions to suppress. The court found that Swartz
“credibly testified that she could not read the state of origin of the temporary tag and
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that she genuinely believed based on her experience that the tag’s simple color
scheme made it appear like something that could be forged.” The court deemed
Sanchez indistinguishable and concluded that Swartz had reasonable suspicion to
make the traffic stop.
Tovar and Mendoza entered conditional guilty pleas, reserving the right to
appeal the denial of their motions to suppress. On appeal, Tovar argues that the
district court made clearly erroneous factual findings regarding Swartz’s credibility,
and both defendants argue that Swartz’s seizure of the car violated the Fourth
Amendment.
II.
The Fourth Amendment prohibits “unreasonable searches and seizures.” A
traffic stop constitutes a seizure of the vehicle’s occupants. Brendlin v. California,
551 U.S. 249, 255-57 (2007). To be reasonable, the stop must be supported by at
least “reasonable suspicion to believe that criminal activity may be afoot.” United
States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotations omitted). We review
the district court’s factual findings for clear error and its legal conclusions de novo.
Ornelas v. United States, 517 U.S. 690, 699 (1996).
A.
We see no clear error in the district court’s factual findings. Tovar argues that
Swartz’s testimony was inconsistent with her report, in which Swartz stated that she
“could not read” the paper in the vehicle’s rear window. Tovar maintains that Swartz
“modified her story” when she testified that she “couldn’t really read any part of the
tag well.” He also argues that Swartz’s testimony regarding the tag’s coloring and
block numbers is inconsistent with her report, which did not mention these facts.
Swartz’s testimony is not internally inconsistent or facially implausible. While
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documents or objective evidence may contradict a witness’s story and render her
testimony incredible, Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575
(1985), there is no such contradiction here. Swartz’s testimony provided additional
details regarding her observations, but elaboration is not a contradiction that compels
a finding that the witness was incredible.
Tovar also argues that the court clearly erred in finding that Swartz believed
that the tag’s “simple color scheme” made it look like something that could be forged.
This finding, however, was a reasonable inference from Swartz’s testimony. Swartz
testified that Iowa’s temporary tags include a “red kind of swirly symbol,” and that
the tag in this case did not feature the colors of an Iowa temporary tag. She testified
that she saw “blue bars of some kind” on the tag, but she did not recognize the colors,
and she observ ed that she “couldn’t verify that it was a legitimate tag and not
something that someone had made on their printer.” In light of this testimony, we
cannot say that the district court’s finding is clearly erroneous.
Tovar next contends that Swartz was “less than forthcoming” about her
experience with forged tags. He points to cross-examination in which Swartz
acknowledged telling an investigator that she “often” encountered fraudulent
temporary tags during traffic stops, even though the government produced reports of
only two such incidents at the hearing. Swartz also testified, however, that she has
stopped a number of cars with altered tags, but that not all of those incidents resulted
in citations or arrests. The district court thus reasonably inferred that Swartz had
recent experience with fraudulent tags, and that she “genuinely believed based on her
experience” that the tag could have been forged. There is no clear error on this point.
Finally, Tovar argues that Swartz’s testimony that she did not look at the tag
while approaching the vehicle is “so implausible on its face” that the district court
clearly erred in crediting any of Swartz’s testimony. Swartz explained that she did
not look at the tag because her “attention [was] on the driver and any other occupants
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of the vehicle for safety reasons.” She elaborated that she was “[t]rying to make sure
that nobody has a weapon, nobody is fleeing the vehicle, nobody is making any
furtive movements in the front seat or the back seat, ascertain how many passengers
there are, et cetera.” Especially in view of the fact that Swartz knew the occupants
were under investigation by the Drug Enforcement Administration, this testimony is
not inherently implausible.
B.
The district court determined that this case is controlled by our decision in
Sanchez. In that case, a Nebraska state trooper observed a minivan without a front
or rear license plate, but with a piece of paper affixed where a rear license plate would
have been displayed. Sanchez, 572 F.3d at 476. As the trooper pursued the minivan
and approached it from the rear, he could read three lines of text on the paper. Id. at
476-77. At the bottom of the paper, in much smaller type, were the words “Arizona
Temporary Registration Plate.” Id. The law enforcement officer, however, could not
read these words from his vantage point, and he could not discern the name of any
issuing State. Id. at 477. “Suspecting that the paper was not an official document,
he decided to stop the minivan to investigate.” Id. The trooper eventually obtained
consent to search the minivan and found controlled substances. Id. The defendants
moved to suppress the evidence obtained from the search. Id. They argued that the
piece of paper was a valid Arizona temporary plate, and because it was clearly visible
from the outside of the vehicle, the officer should have recognized that it was an
official document. Id. The district court denied the motions to suppress, and the
defendant was convicted.
On appeal, we noted that Nebraska law generally requires vehicles to display
front and rear license plates, but makes an exception for recently purchased vehicles,
which may display two temporary “In Transit” stickers. Id. at 478. Nebraska law
also provides an exception for out-of-state vehicles, which must comply with the
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requirements of the jurisdiction in which they are registered. Id. Even assuming that
the vehicle in Sanchez properly displayed registration from another jurisdiction, we
held that the traffic stop was lawful. Id. We thought it was “objectively reasonable
for [the trooper] to expect that the name of the issuing jurisdiction would appear
conspicuously on the face of an official document, and to investigate further if a name
was not visible.” Id. at 479. “[B]ecause the printing on the paper affixed to the rear
was too small to read in its entirety, and no issuing jurisdiction was identifiable, he
reasonably suspected that the paper was not an official document that complied with
the licensing requirements of another State.” Id.
Iowa law generally requires vehicles to display front and rear license plates.
Iowa Code § 321.37(1). Owners of recently purchased vehicles, however, may
display a “registration applied for” card on the rear of the vehicle for forty-five days.
Id. § 321.25. Iowa also makes exception for nonresidents’ vehicles, which need only
display the registration required by the nonresident’s jurisdiction. Id. § 321.53.
The determination of whether reasonable suspicion existed “is not to be made
with the vision of hindsight, but instead by looking at what the officer reasonably
knew at the time.” Sanchez, 572 F.3d at 478 (internal quotation omitted). At the time
of the traffic stop, Swartz observed what appeared to be a paper tag in the vehicle’s
rear window. She was confident that it was not an Iowa temporary tag. Despite
observing it from a distance of fifteen to twenty feet, she was unable to identify an
issuing State. Her suspicions also were aroused by the large, handwritten block
numbers. In her experience, dealers write expiration dates with a single stroke, and
block numbers could be used to alter a date written in this manner. Given the tag’s
overall appearance, Swartz thought it looked like something a person could have
created on a printer. Considered in light of Swartz’s experience with falsified or
fraudulent tags, these observations provided her with a particularized and objective
basis to suspect that the tag was not a valid registration document. We therefore
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conclude that Swartz had reasonable suspicion to believe that the vehicle did not
display valid proof of vehicle registration, as required by Iowa law.
Mendoza and Tovar argue that this case is distinguishable from Sanchez
because, unlike Swartz, the trooper in Sanchez attempted to read the tag as he
approached the vehicle on foot, but he still did not see the name of any issuing State.
See 572 F.3d at 477. We disagree. The issue in Sanchez was whether the trooper’s
“decision to stop the minivan” was lawful. Id. at 478 (emphasis added). Although
we noted the trooper’s post-stop effort to inspect the tag in Sanchez, Swartz’s failure
to do so has no bearing on whether she had reasonable suspicion to make the traffic
stop in the first place. Mendoza and Tovar do not argue that Swartz unreasonably
prolonged or exceeded the scope of the stop by failing immediately to inspect the tag.
Cf. United States v. Hollins, 685 F.3d 703, 706-07 (8th Cir. 2012).
Mendoza and Tovar also emphasize our observation in Sanchez that it was
“objectively reasonable for [the officer] to expect that the name of the issuing
jurisdiction would appear conspicuously on the face of an official document, and to
investigate further if a name was not visible.” 572 F.3d at 479. They argue that
Swartz could not reasonably have the same expectation in this case, because even
Iowa’s temporary tags do not “conspicuously” display the name of the issuing State.
In essence, the appellants suggest that if it is generally impossible for officers to
verify the validity of temporary tags without stopping a vehicle, then the presence of
that ordinary fact cannot amount to reasonable suspicion. The record here, however,
includes more than an assertion by Swartz that she could not verify the validity of a
tag that appeared on its face to be legitimate. She gave particularized reasons why
she suspected that this particular tag may have been fraudulently created on a printer
rather than issued by an official authority. The showing of reasonable suspicion in
this case does not depend on the sort of expectation mentioned in Sanchez.
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Mendoza suggests that the officer in Sanchez had greater grounds for suspicion
because he saw only a “piece of paper” attached to the vehicle, while Swartz,
according to Mendoza, “knew the document taped to the rear window was a
temporary registration tag.” As the district court found, however, Swartz saw only
“what appeared to be a paper tag” posted in the rear window. When asked whether
she could see that the vehicle had “some type of temporary tag,” Swartz stated only
that she “could see that it had a piece of paper.” The record does not establish that
Swartz knew the document was a legitimate temporary registration tag.
This case is therefore distinguishable from United States v. Wilson, 205 F.3d
720 (4th Cir. 2000) (en banc), where an officer attempted to justify his stop of a
vehicle based simply on his inability to read the expiration date on a temporary tag
due to darkness and small print. In Wilson, the officer “admitted that he never saw
anything illegal about the tag or the operation of the car,” testified that “nothing
appeared illegal about the temporary tag,” and acknowledged that he had “no
suspicion at all” that the driver was operating an unregistered vehicle or otherwise
violating the law. Id. at 723. “Simply put, he saw nothing wrong, and he suspected
nothing,” so there was no reasonable suspicion. Id. at 724. The more analogous
authority is United States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006), where an
officer lawfully stopped a vehicle not merely because he could not read a temporary
tag, but because “he could not determine whether the document posted in the rear
window was, in fact, a temporary tag.” Id. at 1047.
* * *
Because the traffic stop did not violate the Fourth Amendment, the evidence
obtained from the search of the vehicle and Tovar’s subsequent statements to law
enforcement were not the fruits of a constitutional violation. The judgments of the
district court are affirmed.
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