United States v. Elias Xavier Rosario Torres

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-11929

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELIAS XAVIER ROSARIO TORRES,

VERONICA ESTEFANIA RODRIGUEZ PINUELA,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cr-00363-KKM-UAM-1

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2 Opinion of the Court 24-11929

____________________

Before NEWSOM, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

Codefendants Veronica Estafania Rodriguez Pinuela

(“Pinuela”) and Elias Xavier Rosario Torres (“Torres”) appeal their

respective drug- and firearm-related convictions following a traffic

stop during which drugs, a gun, and ammunition were found in

bags in the vehicle.

Pinuela argues that the district court erred in denying her

motion to suppress the evidence seized from her vehicle on the

basis that the officers lacked probable cause of a traffic violation

when they stopped her.

Torres argues that the district court plainly erred in not

instructing the jury that the government needed to prove that he

knew the firearm he possessed had machine gun characteristics in

order convict him of possession of a firearm in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c).

After careful review, we affirm the convictions of both

Pinuela and Torres.

I. Background

In 2022, a grand jury charged Torres and Pinuela each with

(1) conspiracy to possess with intent to distribute 500 grams or

more of cocaine and fentanyl, in violation of 21 U.S.C.

§§ 841(b)(1)(B), (C), and 846 (Count One); (2) possession with

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intent to distribute 500 grams or more of cocaine and fentanyl, in

violation of 21 U.S.C. § 841(b)(1)(B), (C) (Count Two); and

(3) possession of firearm (here, a machine gun) in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A), (B)(ii) (Count Three). Additionally, the grand jury

charged Torres with possession of firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Four).

Prior to trial, Pinuela filed a motion to suppress the

evidence, which had been seized during a traffic stop. She alleged

the following facts in her motion. On the day of the traffic stop,

she, her uncle, and Torres were driving to dinner. On the way,

they stopped at a gas station because Torres needed to meet up

with someone. Law enforcement was present at the gas station

and recognized Torres from a prior investigation. They observed

that Torres appeared to have a marijuana cigarette tucked behind

his ear. After Torres met privately with another driver, Pinuela,

her uncle, and Torres left the gas station and proceeded to head to

the restaurant. Police followed the vehicle for 13 miles before

observing Pinuela’s SUV enter a “turn only lane” for a hotel and

“then proceed straight through the emergency lane rather than

turn.” She then continued west and entered another turn only

lane, turned, and entered the restaurant parking lot. Police

approached her vehicle as she was parking, and observed Torres

“actually smoking the possible mari[j]uana cigarette and officers

could smell the odor of what they believed to be burning

mari[j]uana.” Torres claimed that he had a medical marijuana

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card, but he was unable to produce it. Torres was then handcuffed

and detained.

After removing Torres from the vehicle, the police removed

two bags from the passenger side floorboard, and Pinuela claimed

that the bags were hers, and asked the officer why he was reaching

into her car and taking things without her permission. Drugs, a

gun,1 and ammunition were discovered in the bags. Torres then

started proclaiming Pinuela’s innocence and contending that the

bags and contents were his.

Pinuela argued that law enforcement lacked probable cause

to stop her and to search the bags, noting that (1) officers followed

her for 13 miles before any alleged traffic violation occurred, and

she was never given a traffic ticket or warning for the alleged

moving violation; and (2) it was not illegal under Florida law to

smoke hemp, which smells the same as marijuana.

The government responded that the stop was lawful

because officers had witnessed a non-criminal traffic violation.

Further, officers had probable cause to search the car based on their

observations of Torres smoking and the smell of burnt marijuana.

1 The gun was a Glock, but the government charged Torres with possessing a

machine gun in furtherance of a drug-trafficking crime because the Glock had

a chip that “cause[d] the trigger bar . . . to stay down” when fired, “which

converted the firearm into a machine gun.” The machine gun characteristic

increased the applicable penalty for the § 924(c) count from a mandatory-

minimum consecutive term of 5 years’ imprisonment to 30 years’

imprisonment. 18 U.S.C. § 924(c)(1)(A)(i), (B)(ii).

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The district court held a hearing on the motion to suppress.

Officer Albis Maceo testified that, on the day in question, he was a

member of the Strategic Enforcement Unit, looking for people

with outstanding warrants and conducting surveillance in high

crime areas in an unmarked car. Around 10 p.m., he observed a

black BMW traveling westbound, pull into a gas station, slow

down, then exit the gas station and head eastbound.

Approximately 10 to 15 minutes later, he observed the same

vehicle return to the gas station and pull into a parking space next

to a Mercedes Benz. Using binoculars, Maceo observed a male exit

the passenger side of the BMW, whom he knew to be Torres from

a prior arrest warrant encounter, and an unknown female exit the

driver’s side. 2 Torres approached the Mercedes, and he and the

driver of the Mercedes “went off to the side and conversated for 10,

15 minutes,” while the female driver of the BMW spoke to another

person in the Mercedes. Maceo observed that Torres had a blunt

tucked behind his ear.

Eventually, Torres and the female returned to their vehicle

and left the gas station, and Maceo decided to follow them. Maceo

also radioed for additional assistance from other officers. As he was

following the BMW for approximately 13 miles, Maceo observed

the BMW enter a turn only lane for a hotel, but instead of turning,

the vehicle “continue[d] pass[] the emergency stripe lane, through

the shoulder” for approximately a block, and then entered another

2 Maceo explained that there was another male in the backseat, who was later

identified as Pinuela’s uncle.

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turn only lane to make a right-hand turn onto another road and

pull into a Bahama Breeze parking lot. 3 Maceo explained that the

vehicle’s actions were in violation of Florida’s traffic laws, and he

decided to make a traffic stop. Another officer who had joined in

following the BMW, Sergeant Jenne, activated his lights and

approached the BMW as it was parking.

As Maceo and Jenne approached the BMW, Maceo observed

that Torres had the blunt in his hand, “saw a billow of smoke

coming out of the window,” and smelled the odor of burned

marijuana. Maceo seized the blunt and questioned Torres about

it. Torres claimed that he had a medical marijuana prescription,

but officers investigated and confirmed that he did not. Maceo

explained that, even if Torres had a medical marijuana card, no one

is permitted to smoke marijuana in a vehicle under Florida law.

On cross-examination, Maceo explained that while it was

permissible for a car to stop in an emergency lane or on the

shoulder for an emergency or if “you need to do something,” a car

could not drive in the emergency lane, and Pinuela never stopped

in the emergency lane. Maceo confirmed that there was no video

of the alleged traffic violation, and he did not give Pinuela a ticket

or written warning, but he claimed that she was given a verbal

warning. He confirmed that there is no documentation for verbal

warnings.

3 An aerial image depicting the highway and an image with an arrow

documenting Pinuela’s path of travel were admitted into evidence.

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Sergeant Jenne confirmed the same details of the traffic

violation as Maceo. Jenne explained that it was safer for all parties

involved to allow the vehicle to finish parking before initiating the

stop. As Jenne approached the BMW, he smelled marijuana and

observed Torres actively smoking the blunt. Based on his training

and experience, Jenne also observed Torres “target gazing”4 at

some bags that were in the floorboard, which caused Jenne to be

concerned that there could be a gun in the bags because he knew

that Torres had been a wanted subject previously in a violent

shooting.

Jenne explained that, after Maceo removed Torres from the

car, Jenne observed Pinuela “lunge[], [and] reach[] over at the bag

to grab it,” and Jenne then quickly grabbed the bags and removed

them from the car. Jenne conducted “a protective sweep” of the

bags to make sure there were no guns, and he discovered a “broken

up kilo of cocaine,” at which point Pinuela was also detained.

Following the officers’ testimony, Pineula’s counsel argued

that there was no probable cause for the traffic stop because the

officers did not provide a citation to any specific Florida law. He

asserted that “obviously, like a million people a million times,”

drive through a turn-only lane and the shoulder “for all sorts of

reasons.” The trial court pointed out that counsel had not raised

this argument in the motion to suppress, and it would need the

4 Jenne explained that target gazing “is a subconscious behavior [of] people

who are concerned about items in the presence of law enforcement, [where]

they will just continue looking, [and] . . . looking.”

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government to recall the officer to provide a citation to Florida law

and to more fully develop this argument.

The government recalled Officer Maceo who testified that

Pineula’s actions in driving through the emergency lane and the

shoulder qualified as “fail[ure] to use designated lane,” in violation

of Florida Statute 316.089, particularly subsections 3 and 4. Maceo

explained that those sections provided that:

[o]fficial traffic control devices may be erected

directing specified traffic to use a designated lane or a

designation—or designating those lanes to be used by

traffic moving in a particular direction regardless of

the center of the roadway and drivers of vehicles shall

obey the directions of every such device.

. . . [and] [o]fficial traffic control devices may be

installed prohibiting the changing of lanes on sections

of roadway and the drivers of vehicles shall obey the

directions of every such device.

Pinuela’s counsel argued that the statute did not cover Pinuela’s

conduct because there was “no [traffic control] device.” 5 Maceo

explained that “[t]he painted turn arrow on the lane is a control

device. So [Pinuela] was in the turn only lane to turn into the

Westin [hotel], which she did not obey by continuing past the turn

5 The trial court questioned why counsel had not put this argument in his

motion to suppress either and instead had “admitted . . . that your client did

what [Officer Maceo] says.” Counsel stated that he had “forgot” and had been

trying to focus on other issues.

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lane and going in through the emergency lane and then on the

shoulder into the other turn lane.” Pinuela’s counsel maintained

that a traffic control device was “a physical thing, like a stop sign, a

traffic light, a yield sign, not . . . a line in the road.”

Following the hearing, the district court denied the motion

to suppress. First, the district court concluded that the officers had

probable cause to believe a traffic violation had occurred, noting

that Pinuela “concede[d] that she drove through a turn only lane

into an emergency lane,” but that even absent this concession,

Officer Maceo’s testimony was credible regarding Pinuela’s

conduct. The district court further concluded that “[t]he turn-only

arrow painted on the highway and the lines designating an

emergency lane both fit the definition of “markings” placed on the

road ‘for the purpose of regulating, warning, or guiding traffic,’” as

specified under Florida law. (quoting Fla. Stat. § 316.003(50)).

Thus, by failing to obey those markings, Pinuela committed a

traffic infraction, which provided officers with probable cause to

perform a traffic stop. Second, the district court concluded that the

warrantless search of the vehicle was permissible under the

automobile exception because officers had probable cause based on

the odor of marijuana.

Pineula and Rodriguez proceeded to trial. As relevant to this

appeal, the government and the defendants agreed upon, and

jointly proposed, the jury instructions, which the district court

adopted. The jury convicted Torres on all four counts as charged,

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and it convicted Pinuela on Counts Two and Three only. 6 This

appeal followed.

II. Discussion

Pinuela argues that the district court erred in denying her

motion to suppress because the officers lacked probable cause of a

traffic violation when they stopped her. As for Torres, he argues

that the district court plainly erred in the jury instructions related

to the § 924(c) conviction. We address each argument in turn.

A. Pinuela’s Motion to Suppress Claim

For the first time, Pinuela asserts that the government

lacked probable cause of a traffic violation because it failed to

present any evidence at the evidentiary hearing that the highway

markings “were in proper position and sufficiently legible to be

seen by an ordinary observant person,” as required for the

enforcement of Florida’s traffic laws.7 We disagree and affirm.

The denial of a motion to suppress presents a mixed

question of law and fact, and “[w]e review a district court’s findings

of fact for clear error, considering all the evidence in the light most

favorable to the prevailing party—in this case, the Government.”

United States v. Campbell, 26 F.4th 860, 870 (11th Cir. 2022) (en

banc). “[W]e review de novo a district court’s application of the law

6 The jury acquitted Pinuela of the charge in Count 1.

7 Pinuela does not challenge the district court’s conclusion that the markings

on the road qualified as traffic control devices.

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to those facts.” 8 Id. Importantly, “[t]he party moving to suppress

evidence bears the burdens of proof and persuasion.” United States

v. Wilson, 979 F.3d 889, 908 n.9 (11th Cir. 2020).

The Fourth Amendment protects “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV. “A

traffic stop is a seizure within the meaning of the Fourth

Amendment.” Campbell, 26 F.4th at 880.

Although Pinuela and the district court focused on whether

the officers had probable cause to believe a traffic violation

occurred, in Campbell, we clarified that, consistent with Supreme

Court precedent, officers need only reasonable suspicion for a

traffic stop. Campbell, 26 F.4th at 880 & n.15; see also Heien v. North

Carolina, 574 U.S. 54, 60 (2014). Probable cause is also “sufficient”

but not required. Campbell, 26 F.4th at 880 n.15. Accordingly, we

focus our analysis on whether the officers had at a minimum

reasonable suspicion that a traffic violation had occurred. See

Campbell, 26 F.4th at 879 (“[W]e have discretion to affirm on any

8 The government argues that because Pinuela did not present her theory

about whether the highway markings were in the proper position and legible

in the district court in support of her motion to suppress, we should review

for plain error only. See United States v. Bruce, 977 F.3d 1112, 1116 (11th Cir.

2020) (“We review for plain error any theories supporting a motion to

suppress that were not raised below.”). Pinuela, on the other hand, argues

that this theory was preserved based on her general challenge to the lack of

probable cause for the stop. We need not address whether Pinuela’s probable

cause challenge below was sufficient to preserve this new theory on appeal

because we conclude that her claim fails even under de novo review.

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ground supported by the law and the record that will not expand

the relief granted below.” (quotations omitted)).

To comply with the Fourth Amendment, “an officer making

a stop must have a particularized and objective basis for suspecting

the person stopped of criminal activity,” and minor traffic

violations qualify as such activity. Campbell, 26 F.4th at 880

(quotations omitted). “Reasonable suspicion arises from the

combination of an officer’s understanding of the facts and his

understanding of the relevant law.” Heien, 574 U.S. at 61.

“[R]easonable suspicion requires that the officer be able to point to

specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.”

United States v. Boyce, 351 F.3d 1102, 1107 (11th Cir. 2003)

(quotations omitted)). “[T]he level of suspicion the standard

requires is considerably less than proof of wrongdoing by a

preponderance of the evidence, and obviously less than is necessary

for probable cause.” Navarette v. California, 572 U.S. 393, 397 (2014)

(quotations omitted).

Under Florida law, “drivers shall obey the directions of”

official traffic control devices, and these devices “may be erected

directing specified traffic to use a designated lane or designating

those lanes to be used by traffic moving in a particular direction”

and “may be installed prohibiting the changing of lanes on sections

of roadway.” Fla. Stat. § 316.089(3)–(4). A violation of this section

results in a noncriminal traffic infraction. Id. § 316.089(5). Official

traffic control devices include “[a]ll signs, signals, markings, and

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devices . . . placed or erected by authority of a public body or

official having jurisdiction for the purpose of regulating, warning,

or guiding traffic.” Id. § 316.003(50).

Viewing the evidence in the light most favorable to the

government, we agree that the officers had reasonable suspicion to

stop Pinuela for a traffic violation. We reach this conclusion based

on the officers’ knowledge of Florida law and their articulated

observations of Pinuela entering a turn-only lane, failing to turn,

and continuing straight through the emergency lane and the

shoulder. 9 Those observations gave the officers the requisite

reasonable suspicion to pull her over for a violation of Florida’s

traffic laws. See id. § 316.089(3)–(4); see also Heien, 574 U.S. at 61

(“Reasonable suspicion arises from the combination of the officer’s

understanding of the facts and his understanding of the relevant

law.”).

Relying on Fla. Stat. § 316.074, 10 Pinuela argues that in order

to prove that the traffic stop was valid, the government had to

produce evidence that the markings on the road were in the proper

9 Indeed, we agree with the district court that the officers’ observations of

Pinuela’s driving also established probable cause. See Wilson, 979 F.3d at 908

(“[T]he probable-cause standard is satisfied when a police officer witnesses a

driver commit a traffic violation.”).

10 Florida Statute § 316.074 provides that “[n]o provision of [chapter 316] for

which official traffic control devices are required shall be enforced against an

alleged violator if at the time and place of the alleged violation an official

device is not in proper position and sufficiently legible to be seen by an

ordinarily observant person.”

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position and sufficiently visible to an ordinary person. Pinuela’s

claim fails. Whether or not the alleged traffic violation would have

been ultimately enforceable against her has nothing to do with

whether the officers had reasonable suspicion to believe that she

had committed a traffic violation. It is well-established that

reasonable suspicion “focuses on the information available to the

officers at the time of the stop . . . not information that the officers

might later discover (i.e., later discovered issues with the markings

on the road). United States v. Lewis, 674 F.3d 1298, 1305 (11th Cir.

2012) (quotations omitted). Indeed, seizures may still be

reasonable under the Fourth Amendment even when based on a

mistake of fact or law. See Heien, 574 U.S. at 61. And “the level of

suspicion the standard requires is considerably less than proof of

wrongdoing by a preponderance of the evidence, and obviously

less than is necessary for probable cause.” Navarette, 572 U.S. at 397

(quotations omitted). In other words, for reasonable suspicion to

exist to perform a traffic stop in Florida for failure to obey traffic

control devices, there is no requirement that the government show

that the traffic control devices were actually in proper position and

visible to the ordinary driver.

Furthermore, even assuming arguendo that the government

needed to show that the road markings were properly placed and

clearly legible to an ordinary driver, we conclude that the

government satisfied that requirement by submitting aerial images

of the road, which establish that the road markings were properly

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placed and clearly visible. 11 And even if the images were not

sufficient to establish the proper placement and visibility of the

markings, we cannot overlook that Pinuela admitted in her motion

to suppress that she failed to obey the markings on the road. Based

on her concession in the motion to suppress, any argument that

there was no basis for the officers to reasonably suspect that she

had committed a traffic violation is squarely foreclosed.

Accordingly, we conclude that the district court properly

denied the motion to suppress.

B. Torres’s Jury Instruction Claim

Torres argues for the first time on appeal that the jury

should have been instructed that the government needed to prove

that he knew that the firearm had the characteristics of a

machinegun in order to find him guilty of possessing a firearm—in

this case a machinegun—in relation to a drug-trafficking crime, in

violation of § 924(c).

Because Torres did not raise this jury instruction challenge

in the district court, his claim is subject to plain error review. See

United States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995). “To

establish plain error, a defendant must show there is (1) error,

11 We note that Pinuela did not object to these images or otherwise challenge

that they were accurate representations of the roadway at the time she

traveled on it. And “[t]he party moving to suppress evidence bears the

burdens of proof and persuasion.” Wilson, 979 F.3d at 908 n.9.

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(2) that is plain, and (3) that affects substantial rights.” United States

v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). “If all three

conditions are met, we may exercise our discretion to recognize a

forfeited error, but only if the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Id.

(quotations omitted).

However, the doctrine of invited error applies when a

defendant affirmatively requests or stipulates to a particular jury

instruction. See United States v. Frank, 599 F.3d 1221, 1240 (11th Cir.

2010) (“[Defendant] invited error when he not only agreed with the

supplemental instructions and special verdict form, but requested

them.”). Thus, “when a party agrees with a court’s proposed

instructions, the doctrine of invited error applies, meaning that

review is waived even if plain error would result.” Id.; see also

United States v. Maradiaga, 987 F.3d 1315, 1322 (11th Cir. 2021)

(“Where a party invites error, the Court is precluded from

reviewing that error on appeal.” (quotations omitted)).

Here, Torres proposed and expressly agreed to the very jury

instructions that he now challenges. 12 Thus, he invited any error

12 Torres notes that “should there be an intervening change in law” concerning

the mens rea element under § 924(c), the invited error doctrine . . . would not

apply.” See United States v. Duldulao, 87 F.4th 1239, 1255 (11th Cir. 2023)

(recognizing an exception to the invited error doctrine “where the error

invited by a party relied on settled law that changed while the case was on

appeal”). However, no such change in the law regarding the mens rea

requirements of § 924(c) has occurred while Torres’s appeal was pending (and

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and forfeited his right to challenge these instructions on appeal.

Frank, 599 F.3d at 1240; Maradiaga, 987 F.3d at 1322 (explaining that

a defendant “proposing the exact language that the district court

adopted” is a “textbook case of invited error”).

Accordingly, Torres is not entitled to relief on this claim.

III. Conclusion

For the above reasons, we affirm Pinuela’s and Torres’s

convictions.

AFFIRMED.

Torres does not contend otherwise). Therefore, the invited error doctrine

applies here.