# Petition for Writ of Certiorari — Guerrero v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1082

## Text

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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

Ba

PART B
JUDGEMENT IN A CRIMINAL CASE OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO.

lb

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.

4b

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.

5b

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

6b

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.

7b

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.

lc

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

2c

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

3c

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

4c

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

5c

-— 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

6c

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.

8c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1202%3A1. Public record. Not legal advice.