Petition for Writ of Certiorari — Guerrero v. United States

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MAR 9 1999

J “OSEPH F. SAPWIOL, spy

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PETITION FOR WRIT OF CERTIORARI

NO.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

JESUS GUERRERO, Petitioner

vs.

UNITED STATES OF AMERICA, Respondent

PET] TION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT CF APPEALS FOR

THE TENTH CIRCUIT

JERRY A. WALZ

510 Slate Avenue, N.W.

Albuquerque, NM _ 87102

(505) 242-5620

Counsel for Petitioner

QUESTIONS PRESENTED

1. DID OFFICER CORTEZ HAVE REASONABLE

SUSPICION TO STOP THE DEFENDANT’S AUTOMOBILE

BASED ON THE OFFICER’S BELIEF THAT THE

DEFENDANT WAS NOT WEARING HIS SEAT BELT?

2. DID OFFICER CORTEZ HAVE PROBABLE CAUSE

TO SEARCH THE DEFENDANTS CAR AND TRUNK AFTER

GIVING THE DEFENDANT A WARNING FOR NOT WEARING

HIS SEAT BELT AND THEN FURTHER DETAINING AND

QUESTIONING THE DEFENDANT AFTER THE OFFICER

DETERMINED THAT THE DEFENDANT WAS FREE TO GO?

3. DID THE TENTH CIRCUIT IMPROPERLY

DISREGARD THE OFFICER’S TESTIMONY THAT HE HAD

NO REASON TO ASK THE DEFENDANT ABOUT GUNS AND

CONTRABAND AND INSTEAD SUBSTITUTE ITS OWN

VERSION OF THE OFFICER’S TESTIMONY ‘THAT HE

REALLY MEANT, "I DIDN’T ASK HIM FOR ANY SINGLE

REASON."?

4. DID THE DEFENDANT KNOWINGLY AND

VOLUNTARILY CONSENT TO THE SEARCH OF HIS CAR

IN LIGHT OF THE PROLONGED INVESTIGATION BY

OFFICER CORTEZ AND WITHOUT SPECIFICALLY

ARTICULATED REASONS FOR THE INVESTIGATION AND

THE SUBSEQUENT SEARCH?

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ....... eeccccccceoes i, ii

TABLE OF AUTHORITIES ...............2.. iv, v

DESE GP PARTIES .ncccccccccccccccccccs 1

OPINIONS BELOW ....... ccccecce eeccecoes 1

JURISDICTION .......... ecccccccccccccs 2

CONSTITUTIONAL PROVISIONS ............ 2

STATUTES INVOLVED ...........22-e2 eee. 3

HOW THE FEDERAL QUESTION WAS

PRESENTED .......-22+202. ecocccccece 3

STATEMENT OF THE CASES ........ eccccece 5

REASONS FOR GRANTING WRIT ..........-.. 11

CONCLUSION ....... eccrccccccccccccccce 21

APPHMDIR ccccccccccccccccccccccccccces la

iii

TABLE OF AUTHORITIES

CASES PAGE

In Re Tony C., 148 Cal. Rptr. 366,

582 P.2d-957 (1978)(embanc) .......

McDonald v. U.S., 335 U.S. 451

(1948) ..... ecccccccecs cecccccccce ee

People v. McGaughran, 159 Cal. Rptr.

191, 601 P.2d 207 (1979)(enbanc) ..

Schneckloth v. Bustamante, 412 U.S.

BEG GEOCES cascteveveoceces Pueewese

State v. Ruud, 90 N.M. 647, 567 P.2d

496 (Ct. Rom. OBIT) ..ccccces: hE

Terry v. Ohio, 392 U.S. 1 (1968). 11, 12,

U.S. v. Abbott, 546 F.2d 883 (10th

Cir. 1977) wcccccccccscccccccescces

U.S. v. Corral, 823 F.2d 1389 (10th

Cir. 1967) .wcccceccs eo cccccccce ecces

U.S. v. Dyer, 546 F.2d 1313 (7th Cir.

SUED aseveweere s+ 06660 bes eebebiaheue

U.S. v. Fitzharris, 633 F.2d 416

(5th Cir.) cert. denied, 451 U.S.

Bia CEG, évéeb veeeease6e0bs eee 60%

U.S. v. Guzman, 864 F.2d 1512 (10th

Car. TWeer seewvecss 33. 88, 845 335. 129;

iv

16

15

20

16

15

20

15

18

18

U.S. v.

Jefferson,

Cir.

U.S. v.

1981)

Jordon,

Cir.

U.S. Vv.

1976)

Liefer,

Cir.

> a

1985)

Lopez,

Cir.

U.S. Vv.

1985)

Montgomery,

650 F.2d 854 (6th

530 F.2d 722 (6th

778 F.2d 1236 (7th

777 F.2d 543 (10th

(D.C.

U.S. Vv.

Cir.

1977) ....

561 F.2d 875

Recalde, 761 F.2d 1448 (10th

(Cir.

U.S. v.

1985)

Smith,

Cir.

U.S. v.

1986)

Thompson,

799 F.2d 704 (1lith

Cit.

1983)

712 F.2d 1356 (11th

12,

20

17

18

20

16

20

20

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1989

JESUS GUERRERO, Petitioner

vs.

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

The Petitioner, JESUS GUERRERO, respectfully

requests that a Writ of Certiorari issue to

review the Order and Judgment of the United

States Court of ‘Appeals, Tenth Circuit,

entered in the above-entitled proceeding on

December 11, 1989.

OPINIONS BELOW

The opinion of the Tenth Circuit Cuwurt of

Appeals is unreported and reprinted in the

appendix hereto. The Judgment of the United

1

RGR

SN

States District Court for the District of New

Mexico, is reprinted in the appendix hereto.

The oral findings of fact entered by the

United States District Court for the District

of New Mexico are reprinted in the appendix

hereto.

JURISDICTION

The Order and Judgment of the Tenth Circuit

Court of Appeals was filed on December 11,

1989. The jurisdiction of this Court is based

on 28 U.S.C. §1254 (1).

CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the United States

Constitution states that it is "the right of

the people to be secure...against unreasonable

searches and seizures..."

STATUTES INVOLVED

Section 66-7-372 (Repl. Pamp. 1987) of the

New Mexico Statutes Annotated, 1978, states

that “each front seat occupant of a passenger

car manufactured with safety belts in

compliance with federal motor vehicle safety

standard number 208 shall have a safety belt

properly fastened about his body at all times

when the vehicle is in Motion, unless all

seating positions equipped with safety belts

are occupied."

HOW THE FEDERAL QUESTION WAS PRESENTED

On September 28, 1988, Defendant’s counsel

filed a Motion to Suppress’ Evidence of

marijuana obtained in the search of _ the

Defendant’s car. The Motion raised issues 1,

2, and 4 in this Petition. A hearing was held

regarding this motion and testimony was heard

3

from Officer Cortez, the arresting officer,

and from the Defendant. The motion was

denied.

Defendant entered a plea agreement with the

United States, pleading guilty to one charge

of possession of marijuana with intent to

distribute. 21 U.S.C. Section 841 (a)(1) and

(b)(1)(B). In the plea agreement, the

defendant reserved the right to appeal the

denial of his Motion to Suppress by the United

States District Court for the District of New

Mexico.

The Tenth Circuit Court of Appeals

considered issues 1, 2, and 4, in this

Petition, and held against the Defendant. Its

jurisdiction was based on 28 U.S.C. Section

1291 and Article III of the United States

Constitution.

STATEMENT OF THE CASES

A. THE STOP

On May 23, 1988, Officer Cortez, of the New

Mexico State Police, stopped the Defendant for

an alleged seat belt violation. At the time,

Officer Cortez had only been on patrol as a

fully commissioned police officer, for a few

months. He had never been involved in a drug

investigation or arrest.

Officer Cortez spotted Guerrero’s car on the

opposite side of a divided interstate highway.

Guerrero was traveling northbound at about 60

mph and Cortez was traveling southbound at

about 55 mph. The cars were separated by a 35

foot median. Cortez observed Guerrero’s on-

coming car for about 4 seconds before deciding

to pull him over.

Officer Cortez saw that Guerrero was not

wearing a shoulder harness, so he crossed the

median and stopped him. He testified that he

knew that this model and year of car came

5

with factory equipped shoulder type _ seat

belts. Officer Cortez testified that ‘there

was no way to tell if Guerrero was wearing his

lap belt. Cortez stated that wearing a lap

belt complies with the seat belt law. When

asked about his frame of mind when he pulled

Guerrero over, Cortez stated that "All I was

looking at is another citation to enter into

my log."

B. THE INVESTIGATION

Officer Cortez asked Guerrero for his

driver’s license, which Guerrero produced.

Officer Cortez then requested Guerrero’s car

registration, which was also turned over to

Cortez. According to Cortez, these requests

were orders given by him to Guerrero, and if

Guerrero had failed to comply with them, he

would have been in violation of state law.

Cortez then told Guerrero he had _ been

stopped for not wearing his seat belt. The

Defendant said he has been wearing his lap

6

belt. There was no shoulder harness in his

car for his seat belts. Guerrero’s car was

equipped with the brackets for a shoulder

harness but the straps had been removed prior

to Guerrero purchasing the car. Cortez told

Guerrero he was going to give him a verbal

warning about the seat belt. While Guerrero

got his registration from his glove

compartment Cortez noticed a strong odor of

air freshener coming from the car and saw a

spare tire, jack, suitcase and blanket in the

backseat.

After Cortez gave Guerrero the _ verbal

warning, he continued to question Guerrero

although he had concluded his investigation at

that point. [Question] "Was there any reason

for you to stay there with Mr. Guerrero in

uniform, still talking to him at that point in

time after you had concluded, giving him your

verbal warning?" [Answer by Cortez] "There

was no reason." Cortez was satisfied, at this

7

point, that. Guerrero had not committed any

other traffic offenses. According to Cortez,

Guerrero was free to go. However, Cortez

never told Guerrero he was free to go and he

admitted that he never indicated to Guerrero

that the conversation was over. During this

time, the lights on Cortez’ police car were

still flashing. Guerrero did not leave,

because Cortez never told him or indicated to

him that he could go. Guerrero never felt

free to go.

At this point, Cortez claims Guerrero

offered him a large sum of money. Guerrero

denies this claim. Cortez stated that it

seemed unusual that Defendant would try to

offer him money after he had merely given

Guerrero a verbal warning about his seat belt.

It never occurred to Cortez to arrest Guerrero

for bribery.

Cortez then asked Guerrero if he was

carrying guns or contraband. Cortez admitted

8

that he did not know why he had asked the

question and just wanted to see _ what

Guerrero’s reaction would be. [Question] "So

then for what reason did you ask him if he had

guns or contraband? {Answer by Cortez]

"Because, no reason. I didn’t ask him for any

reason. Just...I just asked him." [Question]

"Did you just kind of throw that question out

kind of just to see what he would do with it."

[Answer by Cortez] "Yes, I did." [Question]

"Was he still free to just get in his car and

drive off if he would have wanted to?"

{Answer by Cortez] "Yes, he was."

C. THE SEARCH

Approximately 10-15 minutes had elapsed by

this time. Cortez then asked Guerrero if he

could search his car. Cortez said he made

this request because of how Guerrero was

acting.

Cortez claims that Guerrero verbally

consented to the search. However, Guerrero

9

contends that Cortez told him to open the

trunk. Guerrero perceived Cortez’ statement

as an order, not a request. Cortez used the

same tone of voice in requesting the search,

as he used when he asked for Guerrero’s

driver’s license and registration. During

this time, the lights were still flashing on

the police car. Cortez reiterated that

Guerrero was free to go at the time he gave

Guerrero’s license and registration back to

him, although he never told Guerrero he was

free to go.

Cortez found what was suspected to be

marijuana wrapped in paper and garbage bags in

the trunk of Guerrero’s car. Cortez had been

taught at the police academy that it was

recommended that officer’s use consent forms

when conducting searches. However, Cortez

does not know why this is a recommended

practice. A consent to search form was not

used in this case.

10

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW THAT OFFICER CORTEZ

PROPERLY STOPPED THE PETITIONER’S CAR

BECAUSE PETITIONER WAS NOT WEARING A

SEAT BELT SHOULDER HARNESS RAISES

IMPORTANT AND UNRESOLVED PROBLEMS ABOUT

WHETHER THIS CONSTITUTED A PRETEXTUAL STOP

"A pretextual stop occurs when the police

use legal justification to make the stop in

order to search a person or place, or to

interrogate a person, for an unrelated serious

crime for which they do not have the

reasonable suspicion necessary to support a

stop." U.S. v. Guzman, 864 F.2d 1512, 1515

(10th Cir. 1988). Undefined use by an officer

of his authority to stop vehicles for minor

traffic offenses, and then investigate the

driver for a much more _ serious offense,

without cause, jeopardizes the liberty of all

men to the arbitrary exercise of state

authority. See Terry v. Ohio, 392 U.S. 1

(1968).

11

In the present case, Officer Cortez admits

that only a warning was given for the seat

belt violation but he continued to investigate

for some unknown, serious crime. When asked

about why he detained and questioned Guerrero

after the warning, he said, "There was no

reason." And, when asked why he later asked

about drugs aad contraband, he said, “Because,

no reason." This is the type of undefined use

of authority prohibited by Terry v. Ohio, and

it is particularly suspect in a case involving

only a warning for not wearing a seat belt.

The Tenth Circuit in U.S. v. Guzman adopted

a test for determining whether an

investigatory stop is unconstitutional. "A

Court should ask not whether the officer could

validly have made the stop, but whether under

the same circumstances a reasonable officer

would have made the stun in the absence of the

invalid purpose." Id. at 1517 (quoting, U.S.

v. Smith, 799 F.2d 704 (iith Cir. 1986). A

12

stop is invalid if it is clear that an officer

would. have been uninterested in pursuing the

lesser offense, absent that hope. Id.

In the present case, the officer’s actions

raise questions about whether the stop was

pretextual, because the officer observed the

Defendant at 55 mph, going in the opposite

direction, on an interstate highway and across

a 35 foot median. The officer only had a few

seconds to observe the Defendant. These

circumstances call into question the legality

of the stop, especially since New Mexico law

only requires that a person wear a "safety

belt" and "safety belt" is not defined. In

the present case, the officer stated that

wearing a lap belt complies with New Mexico

law and that he could not tell if the

Defendant was wearing a lap belt. The

District Court further found that Guerrero was

wearing his lap belt at the time he was

stopped by Cortez.

13

Whether an officer can stop a motorist for

not wearing a seat belt is an important

question for this Court because there is very

little case law on the issue. Also, allowing

officers to stop a car for a seat belt

violation alone raises important implications

regarding a driver’s Fourth Amendment Rights

and expands the possible abuse of using these

type of stops for pretextual investigations.

THE DECISION BELOW THAT THE OFFICER HAD

PROBABLE CAUSE TO FURTHER INVESTIGATE AND

SEARCH THE DEFENDANT’S CAR AFTER

MERELY WARNING THE: DEFENDANT ABOUT THE SEAT

BELT VIOLATION AND DETERMINING THAT THE

DEFENDANT WAS FREE TO GO, AND ALSO AFTER

FAILING TO ARTICULATE REASONS FOR

THE PROLONGED INVESTIGATION, PRESENTS

IMPORTANT AND UNRESOLVED PROBLEMS ABOUT

WHETHER THE DEFENDANT’S FOURTH AMENDMENT

RIGHTS HAVE BEEN VIOLATED

The Guzman case established that’ the

circumstances of the stop dictate whether

constitutional parameters have been

overstepped in the investigation that follows.

In the present case, Officer Cortez proceeds,

14

without cause, to detain and investigaie the

Defendant, greatly beyond the reason for the

original stop (the seat belt violation).

Officer Cortez admits that he did not have

any reason to detain the Defendant and also

that he did not have any reason to ask him

about drugs and contraband. Cortez stated

that he asked Guerrero about drugs and

coptraband just to see what the answer would

be. He also stated that this detention and

questioning occurred after the seat belt

investigation was completed and after he had

determined that the Defendant was free to go.

This violates the rule that an investigation

after a traffic stop must be _ reasonabiy

related to the reason for the stop. Terry v.

Ohio; U.S. v. Corral, 823 F.2d 1389 (10th Cir.

1987); People v. McGaughran, 159 Cal Rptr.

191, 601 P.2d 207 (1979)(enbanc); U.S. v.

Guzman. Furthermore, when a detention becomes

an excuse to search for possible illegal

15

contraband, it is unreasonable and

unconstitutional if it is not supported by

probable cause. State v. Ruud, 90 NM 647, 567

P.2d 496 (Ct. App. 1977).

Although Officer Cortez noticed that the

Defendant was nervous, that the interior of

his car smelled like air freshener, and that

his back seat contained a spare tire, jack,

suitcase, and blanket, he did not give these

facts as reasons to question and search for

contraband and drugs. The officer claims that

the Defendant then attempted to bribe him, but

this is disputed by the Defendant. Instead,

the officer states that he did not have any

reason to search. He determined that the

Defendant was free to go after he had observed

these items. An officer must articulate his

reasons to support probable cause to search,

or the search is unconstitutional. McDonald

v. U.S., 335 U.S. 451 (1948); U.S. v.

Montgomery, 561 F.2d 875 (d.C. Cir. 1977); In

16

Re Tony C., 148 Cal. Rptr. 366, 582 P.2d 957

(1978)(enbanc); U.S. v. Jordon, 530 F.2d 722

(6th Cir. 1976).

THE TENTH CIRCUIT’S DECISION THAT

THE OFFICER DID NOT MEAN THAT HE HAD

NO REASON TO SEARCH, ALTHOUGH HE STATED

THIS, THIS IMPROPERLY SUBSTITUTES THE TENTH

CIRCUIT’S VERSION OF THE FACTS IN

PLACE OF THE OFFICER’S ACTUAL TESTIMONY

On cross-examination, when asked why he

asked the Defendant if he had any contraband,

the officer stated, "Because, no reason. I

didn’t ask him for any reason." The Tenth

Circuit stated, that in the context of the

case, the officer meant, "I didn’t ask him for

any single reason." The Tenth Circuit then

stated that the context of the officer's

testimony indicates that he asked about drugs

and contraband because of the items in the

backseat, the air freshener and attempted

bribe.

This reasoning by the Court violates the

previously cited principle that an officer

17

must articulate facts to support a finding of

probable cause to investigate and _ search.

Furthermore, the Tenth Circuit has altered its

version of the _ facts, contrary to the

officer’s actual testimony. Only a trier of

fact can draw inferences from testimony given

at trial. U.S. v. Dyer, 546 F.2d 1313 (7th

Cir. 1976); U.S. v. Liefer, 778 F.2d 1236 (7th

Cir. 1985). Furthermore, a conviction cannot

rest on an unwarranted factual inference, the

determination of which is a matter of law.

U.S. v. Fitzharris, 633 F.2d 416 (5th Cir.),

cert. denied, 451 U.S. 912 (1980).

In the present case, the officer’s

articulation of his reasons for the search is

what is important. This determination is

crucial to whether probable cause existed for

the investigation and _ search. The Tenth

Circuit’s re-wording of the officer’s

testimony significantly changes its meaning

and is modified so as to fulfill the legal

18

requirements of probable cause. Taking the

testimony as is from the Trial Court indicates

that Cortez did not have probable cause to

investigate or search for drugs.

THE DECISION BELOW THAT THE TRIAL COURT’S

RULING THAT THE DEFENDANT VOLUNTARILY

CONSENTED TO THE SEARCH OF HIS CAR WAS NOT

CLEARLY ERRONEOUS IS AN IMPORTANT QUESTION TO

RESOLVE DUE TO THE PRETEXTUAL NATURE OF THE

STOP AND SEARCH AND ITS COERCIVE SETTING

Officer Cortez was unable to state why he

wanted to search or what he was searching for.

He continued to question the Defendant after

his seat belt investigation was completed.

The Defendant did not feel free to leave. The

Defendant was shadowed by the Officer’s

authority throughout the investigation. When

a driver has produced a valid license, as in

the present case, he must be allowed to

proceed on his way, without being subject to

further delay by police’ for additional

questioning. U.S. v. Guzman.

19

These circumstances, along with the

pretextual nature of the stop and search

previously discussed, indicate that’ the

Defendant was in a coercive situation, and

felt that he had no choice but to comply with

the officer’s requests. See Schneckloth v.

Bustamante, 412 U.S. 218 (1973); U.S. v.

Lopez, 777 F.2d 543 (10th Cir. 1985); U.S. v.

Recalde, 761 F.2d 1448 (10th Cir. 1985); U.S.

v. Abbott, 546 F.2d 883 (10th Cir. 1977). Any

consent following an illegal detention is

tainted and invalid. U.S. v. Thompson, 712

F.2d 1356 (l1ith Cir. 1983); U.S. v. Jefferson,

650 F.2d 854 (6th Cir. 1981).

This Court should review the consent to

search in light of the reasons for the stop

and the prolonged detention and investigation.

Allowing an officer to search after he has

detained a driver for a significant period of

time, with no articulated reasons, severely

infringes upon the driver’s Fourth Amendment

20

rights. The Tenth Circuit’s decision in the

present case is contrary to Fourth Amendment

standards and its own opinion in U.S. v.

Guzman.

CONCLUSION

For these reasons, this Petition for

Certiorari should be granted. This Petition

raises important questions of constitutional

law which affects a person’s Fourth Amendment

right to be free from unreasonable searches

and seizures.

RESPECTFULLY SUBMITTED,

WALZ & FRENCH

pom A 7

BY: J A] WAL a

510 e Ave ue, N.W.

Albuquerque, New Mexico 8

Telephgne:> 505) 242-562

Counsel for Petitioner

21

APPENDIX

PART A

ORDER AND JUDGMENT OF THE TENTH CIRCUIT

la

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff—-Appellee,

No. 89-2005

vs. D.C. NO. 88-370JP-01)

(District of New Mexico)

JESUS GUERRERO, [Filed: December 11, 1989]

Defendant—Appellant.

ORDER AND JUDGMENT’

Before MCKAY, SEYMOUR, and ANDERSON, Circuit

Judges.

Defendant entered a plea agreement to a

charge of possession of marijuana with intent

to distribute, reserving the right to appeal

the denial of his suppression motions. The

Defendant was stopped by a rookie policeman

'This order and judgment has no precedential

value and shall not be cited, or used by any

court within the Tenth Circuit, except for

purposes of establishing he doctrines of the

law of the case, res judicata, or collateral

estoppel. 10th Cir. 36.3

2a

who testified that he routinely stopped

automobiles if he observed that the dnivers

were not wearing seat belts. Although New

Mexico law requires only that drivers wear lap

belts, there was evidence that most

automobiles are equipped with shoulder

harnesses for drivers; and based on the fact

that the defendant was not wearing a shoulder

harness, the officer stopped him for violation

of the seat belt law. It turned out that the

defendant was in fact wearing a lap belt and

that the shoulder belt had been cut and all

that remained were the upper hook, seat belt

bracket, and floor mount. In light of Terry

v. Ohio, 392 U.S. 1 (9168), and our many cases

interpreting its provisions, we are satisfied

that this investigative stop me t

constitutional standards. See, e.g., United

States v. Rivera, 867 F.2d 1261, 1268-64 (10th

Cir. 1989) (officer’s stop of defendant’s car

held proper where officer observed car

3a

"tailgating"); United States v. Recalde, 761

F.2d 1488, 1455 (10th Cir. 1985) (initial stop

held property where vehicle was speeding); cf.

United States v. Guzman, 864 F.2d 1512 (10th

Cir. 1988) (suggesting that stop based on

failure to wear seat belt is proper if seat

belt violation is not merely pretextual basis

for stop).

When the officer asked defendant to produce

his vehicle registration from his glove box,

the officer testified that he smelled a strong

odor of air freshener and saw a jack, a spare

tire, a blanket, and a suitcase in the rear

seat. The officer testified that he thought

this was unusual because those items normally

belong in the trunk. The officer further

testified that he returned defendant’s

driver’s license and registration to hin,

telling him that he was only going to receive

4a

a verbal warning for a seat belt violation?

the officer testified that the defendant then

removed a large amount of cash from his shirt

pocket and said: “Here is some money for your

trouble.: Record, vol. 2, at 40-41. The

officer further testified that the defendant

continued to approach him, urging him to

accept the money. The officer backed away,

and at some stage asked the defendant if he

had any weapons or contraband, to which the

defendant replied, "No." The officer then

testified that he said: “Excuse me sir, do

you mind if I look in your vehicle?" In

response, the defendant retrieved his key and

opened the trunk. Id. at 41-43. It was in

the trunk that the officer discovered the

marijuana. On cross examination, the officer

was asked why he had asked defendant if he had

“Although it is not clear why the officer

issued a warning after discovering’ the

defendant was actually wearing a lap belt, we

are satisfied that the stop was proper as

discussed above.

5a

any guns or contraband. The officer answered:

"Because, no reason. I didn’t ask him for any

reason." Id. at 75.

Based on this scenario, defendant challenges

his further detention and questioning after

the officer had determined that he was only

going to issue a warning ticket for the matter

which caused the initial stop. While the

officer’s answer on cross-—examination

literally says he had no reason to continue to

investigate, we are satisfied that in context

the officer meant no such thing. In context

it is more likely the officer meant "I didn’t

ask him for any single reason." In any event,

this one statement does not undermine the

balance of his testimony which supports his

further investigation. An examination of the

officer’s testimony in context makes it clear

that his reason for continuing the

investigation was the presence of items in the

rear seat which fit smuggling profiles, the

6a

presence of air freshener, and the offer of a

bribe together with lis concern about safety

which led him to ask about guns or contraband.

The officer’s testimony, which was credited by

the trial judge, fully justified the continued

investigation, including the request to look

in the trunk of the car. The officer had

probable cause to request permission’ to

examine the content of the car’s trunk.

Finally, the defendant challenges’ the

voluntariness of his consent to the search of

the car. A defendant’s consent to search is

only legal and valid if it is freely and

voluntarily given, as determined by the

totality of the circumstances. Schneckloth v.

Bustamante, 412 U.S. 218 (1973). In this

case, the testimony about the voluntariness of

the consent is typical testimony concerning a

traffic stop followed by a_— search for

suspicious contraband. The officer’s lights

were flashing, he wore a badge, and he used an

7a

authoritative tone. The officer’s testimony,

among other things was that the defendant

readily responded and appeared not to object

at all when asked to open the trunk. The

trial court heard the witnesses and weighed

the evidence. We cannot say that the trial

court’s finding of voluntariness was clearly

erroneous.

AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge

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PART B

JUDGEMENT IN A CRIMINAL CASE OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF NEW

MEXICO.

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UNITED STATES DISTRICT COURT

es DISTRICT OF __ NEW MEXICO

UNITED STATES OF AMERICA

Vv.

NAME: JESUS GUERRERO

DOB: 04-21-56

SSN: 360-68-7951

MAILING 212 South Lakewood

ADDRESS: NORTHLAKE, ILLINOIS 60164

JUDGMENT IN A CRIMINAL CASE

CASE NUMBER: 88-370JP-01

{[Filed: December 19, 1988]

JERRY WALZ — Retained

Attorney for Defendant

RESIDENCE 212 South Lakewood

ADDRESS: Northlake, Illinois 60164

THE DEFENDANT ENTERED A PLEA OF:

{X guilty — nolo contendere] Indictment

filed August 10, 1988

THE DEFENDANT IS CONVICTED OF THE OFFENSE(S)

OF:

Possession with Intent to Distribute more than

£00 Kilograms of Marijuana in violation of 21

USC 841(a)(1) and 21 USC 841(b)(1)(B) as

charged in Indictment filed on August 10,

1988.

The following sentence is imposed pursuant to

the Sentencing Reform Act of 1984 as this

Court has made no determination that the

sentencing guidelines are unconstitutional ;

however, the Court intends to impose an

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alternative sentence under prior law which

shall be controlling, in the event’ the

Sentencing Guidelines are, in fact, declared

unconstitutional.

The Court finds that there is no need for

evidentiary hearing as there are no disputed

facts.

Therefore, pursuant to the Sentencing Reform

Act of 1984, it is the judgment of the Court

that the defendant, Jesus Guerrero is hereby

committed to the custody of the Bureau of

Prisons to be imprisoned for . period of sixty

(60) months. Further, upon release from

confinement, the defendant shall be placed on

Supervised Release for a term of four (4)

years, which the usual conditions of

Supervised Release and a special condition

that he not possess a firearm or any other

dangerous weapon.

Based on the defendant’s inability to pay, the

Court will not impose a fine nor an additional

fine which would pay government cost of any

imprisonment, probation, or Supervised

Release.

The Court finds that the defendant does not

pose a flight risk nor does he present a

danger to the community, therefore, he shall

be released under the same conditions of

release as previcusly imposed during the

pendency of his appeal.

Further, in the event that the sentencing

guidelines are found to be unconstitutional,

it is the judgment and sentence of the Court

that the defendant is hereby committed to the

custody of the Attorney General or his

authorized representative for a term of five

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(5) years, with a four (4) year term of

Supervised Release to follow.

In addition to any conditions of probation

imposed above, IT IS ORDERED that the

conditions of probation set out on Page Two of

the judgment are imposed.

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NAME: JESUS GUERRERO

CASE NUMBER: 88-370JP-01

CONDITIONS OF PROBATION

Where probation has been ordered the defendant

shall: .

(1) refrain from violation of any law

(federal, state, and local) and get in touch

immediately with your probation officer if

arrested or questioned by a law-enforcement

officer;

(2) associate only with abiding persons and

maintain reasonable hours;

(3) work regularly at a lawful occupation and

support your legal dependents, if any, to the

best of your ability. (When out of work

notify your probation officer at once, and

consult him prior to job changes);

(4) not leave the judicial district without

permission of the probation officer;

(5) notify your probation officer immediately

of any changes in your place of residence;

(6) follow the probation officer’s

instructions and report as directed.

The court may change the conditions of

probation, reduce or extend the period of

probation, and at any time during the

probation period or within the maximum

probation period of 5 years permitted by law,

may issue a warrant and revoke probation for

a violation occurring during the probation

period.

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IT IS FURTHER ORDERED that the defendant shall

pay a total special assessment of $_ 50.00

pursuant to Title 18, U.S.C. Section 3013

___Indictment filed August 10, 1988 _ as

follows:

Payable immediately to the U.S. Court

Clerk, P.O. Box 689, Albuquerque, New

Mexico 87103

IT IS FURTHER ORDERED that the defendant shall

pay to the Clerk of Court for this district,

any amount imposed as a fine or special

assessment. The defendant shall also pay to

the Clerk of Court, any amount imposed as a

cost of prosecution. RESTITUTION should be

paid to the U.S. Attorney.

IT IS FURTHER ORDERED that until the judgment

is paid in fuil, the defendant shall notify

the United States Attorney of any change in

address within 30 days of that change.

IT IS FURTHER ORDERED that the clerk of the

Court deliver a certified copy of this

judgment to the United States marshal of this

district.

December 16, 1988

Date of Imposition of Sentence

Signature of Judicial Officer

JAMES A. PARKER, U.S. DISTRICT JUDGE

Name and Title of Judicial Officer

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APPEAL RIGHTS: In accordance with Rule 32(a)

of the Federal Rules of Criminal Procedure,

defendant has the right to appeal the entry of

this judgment within ten (10) days and has the

right to apply for leave to appeal in forma

pauperis if unable to pay the cost of an

appeal.

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PART C

ORAL FINDINGS OF FACT OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO.

RECORD ON APPEAL, UNITED STATES COURT OF

APPEALS, TENTH CIRCUIT, VOL. I, PAGES 124-129.

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THE COURT: I’m going to deny the motion to

suppress. I’m going to deny the motion to

suppress on the following findings:

I will find that Officer Cortez, the New

Mexico State Policeman, was patrolling on the

Interstate 25 and was traveling south on the

inside lane of Interstate 25 somewhere between

Wagon Mound and Las Vegas. He observed an

automobile, a 1978 Cadillac De Ville, being

driven by the defendant going north also on

the inside lane, that is the lane next to the

median.

When he observed the driver of the

automobile, he observed that the driver of the

automobile was not wearing a shoulder harness,

that is a shoulder -- that part of the seat

belt so called which fits over the shoulder

and fastens on down to the seat.

Officer Cortez immediately crossed _ the

median, gave --— went in pursuit of the

defendant in his Cadillac and stopped him. At

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the time that he stopped him, he pulled him

over to the right. Officer Cortez parked

behind the defendant’s car and the defendant

got out of his car and went over to where the

officer was. They had conversation. The

officer asked Mr. Guerrero for his driver’s

license. Mr. Guerrero demonstrated his

driver’s license.

At that point the defendant -- I mean,

excuse me, the officer asked the defendant for

his registration, the registration to the

automobile. They went to the defendant’s car.

The defendant got into the car. The officer

stood by the door on the passenger’s side. The

defendant pulled out the registration

certificate. While this was going on the

officer detected a smell of disinfectant or

some air freshener, detected the scent of air

freshener in the automobile and also observed

at some point there that the -- in the back

seat was a spare tire, a blanket, a piece of

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luggage and a jack. Now, these are ordinarily

items that are carried in the trunk, and not

in the passenger’s portion of the automobile.

When the defendant showed the officer the

registration certificate, possibly even before

that, the officer indicated to him, _ the

defendant, that he was going to give him a

warning because of the seat belt. There was

in the automobile the appropriate mechanisms

for -—- that is the latching mechanisms and the

anchoring mechanisms for a shoulder harness,

that part of the so-called seat belt. But

there was nothing -- there was no shoulder

harness in the automobile, although the

mechanism for that type of a harness of

mechanism was in place. There was a lap belt.

Now, whether or not the defendant was

wearing a lap belt at the time that he was

pulled over, of course, is not known for sure.

I believe the defendant testified that he had

that lap belt on. And I will go ahead and

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accept his story on that. However, the lap

belt was not something -- that is whether or

not he had the lap belt on it’s not something

that the officer could be observed when he

first observed the defendant coming toward

him. The officer is going on the opposite

direction.

Now, after the defendant demonstrated the

registration, the officer indicated that so

far as he was concerned at that point he was

through with the defendant. And at this time

the stories diverted, but I will find that

this defendant did take out money and itiewes

proffering it to the officer. And the officer

started backing away and -- indicating that he

didn’t, wouldn’t take it.

And it was at that time that the officer

asked the defendant if he had contraband or

any weapons in the car. And the defendant

answered in the negative. And the officer

asked him, may I look at the car, may I search

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-— may I see the car. The defendant indicated

that he could. He, the defendant, went to the

front of the car, that is the passenger’s

portion of -- the driver portion of the car,

part of the car and got the keys out and went

back and opened up the -- voluntarily opened

up the trunk. And there were these, I mean

these garbage sacks in which the marijuana was

actually eventually found.

I feel that the —- that, one, the consent to

search was freely and voluntarily made. I

feel, that at the point where the money was

proffered to that officer that the officer had

-—— could have had, and although he didn’t say

that he at that point had because he wasn’t

asked that question, he was asked his -—- he

was asked his impression as to whether or not

he believed that -- had some suspicion that a

crime was being committed or that’ the

defendant might have had contraband. He

indicated negatively that that was up until

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the point that he -- up until the point where

the money was offered to him.

At that point the money was offered to him,

I can very well appreciate that -- and I

didn’t mention this before, but the defendant

was nervous, his hands were shaking when first

the defendant proffered the license, driver’s

license for inspection.

The circumstance, the air freshener, the

sme11 of this air freshener which is commonly

understood to -—-— commonly known to be used by

people transporting marijuana to mask the

marijuana smell, and the presence of the spare

tire, the luggage, the blanket, and the jack

in the passenger compartment of the car

instead of in the truck where it is usually

carried, those circumstances plus the offering

of the money could lead a police officer of

reasonable prudence to have ae reasonable

suspicion that something was amiss and that a

crime was perhaps being committed in his

7c

presence if there was contraband in that car.

All of those things justify his request or

his inquiry to the defendant as to whether or

not he would permit him, the officer, to

search the car. All right. On those findings

the motion to suppress will be denied.

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