Filed: Patrick Fisher
Filed: Patrick Fisher
Filed: Patrick Fisher
NOV 3 1997
PUBLISH
PATRICK FISHER
Clerk
TENTH CIRCUIT
Plaintiff-Appellant,
MANUEL LEYVA-SERRANO,
No. 97-2051
Defendant-Appellee.
assigned to the homicide unit, was investigating two unsolved murders that had occurred
in Albuquerque in July, 1995. One involved Cara Garner, a prostitute, who was shot and
killed behind the Trade Winds Motel in Albuquerque. The second involved an Avelio
Guzman, who was stabbed in the neck and then shot and killed. During the course of his
investigation, Detective Garcia was advised by other members of the Albuquerque Police
Department that Tracy Bankhead perhaps knew the person, or persons, who might be
involved in these two homicides, or who, at least, might know something about the
murders. Accordingly, Detective Garcia arranged an interview with Bankhead at police
headquarters on August 31, 1995.
During the August 31st interview, Detective Garcia asked Bankhead questions
about the Garner homicide, although he did not use the name Garner, since Bankhead
did not recognize that name, as such. Rather, Detective Garcia asked Bankhead about a
prostitute who had been shot and killed behind the Trade Winds Motel in Albuquerque.
In the interview, Bankhead stated that on one particular evening, a month or so prior to
the interview, she and Serrano, and two others, had gone to the Trade Winds Motel to
look for a prostitute who owed Serrano, and the others, money for narcotics. She said
that Serrano and one of the others were armed. Bankhead also said that they were unable
to locate the prostitute, and that the four of them returned to her residence. Bankhead
went on to say that shortly thereafter the three men left her residence. The next day,
according to Bankhead, she heard news reports that a prostitute had been shot to death
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hand turn and shortly thereafter made a U-turn. About this time, Serrano was stopped by
an officer in a marked police car who had been called in by Detective Garcia to make the
stop.
After the driver of the red Pontiac convertible was stopped, the driver being
Serrano, the uniformed officer ordered him to step out of his vehicle, which he did. The
arresting officer, after patting down Serrano, and finding no contraband, ordered him to
the marked police vehicle. Simultaneously, Garcia went to the passenger door of the red
Pontiac convertible to look for firearms. Putting his hand under the passengers seat,
Garcia found what he thought was a .25 caliber or .380 caliber handgun wrapped in some
sort of a plastic wrap. Bringing the object out from under the seat, it proved not to be a
firearm, but crack cocaine wrapped in some sort of plastic. Detective Garcia testified that
his was a protective search of the red Pontiac convertible, because he was concerned,
inter alia, that if Serrano declined to converse with him, and they returned him to his
vehicle, that he might then open fire. So much for the facts as developed at the
evidentiary hearing on Serranos motion to suppress.
In United States v. Foster, 100 F.3d 846, 849 (10th Cir. 1996) we spoke of our
scope of review of a district courts order granting a pre-trial motion to suppress as
follows:
When reviewing an order granting a motion to
suppress, this court accepts the trial courts factual findings
unless clearly erroneous, and views the evidence in the light
most favorable to the district courts finding. United States v.
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The legality of Detective Garcias stop of Serranos vehicle, with the aid, of
course, of his fellow officer driving a marked police vehicle with lights and sirens, is
governed by the principles of Terry v. Ohio, 392 U.S. 1, 22 (1968), where the Supreme
Court spoke as follows:
Applying these principles to this case, we consider first the
nature and extent of the governmental interest involved. One
general interest is of course that of effective crime prevention
and detection; it is this interest which underlies the
recognition that a police officer may in appropriate
circumstances and in an appropriate manner approach a
person for purposes of investigating possibly criminal
behavior even though there is no probable cause to make an
arrest. It was this legitimate investigative function Officer
McFadden was discharging when he decided to approach
petitioner and his companions.
We recognize that Terry was concerned with police who were observing what they
thought was an on-going crime committed in front of their own eyes, whereas we are here
concerned with Detective Garcia investigating a so-called past crime. In this regard,
the Supreme Court in United States v. Hensley, 469 U.S. 221, 229 (1985) spoke as
follows:
Despite these differences, where police have been
the public interest that the crime be solved and the suspect
detained as promptly as possible. The law enforcement
interests at stake in these circumstances outweigh the
individuals interest to be free of a stop and detention that is
no more extensive than permissible in the investigation of
imminent or ongoing crimes.
See also United States v. Douglas, 36 F.3d 1106 (10th Cir. 1994) (officers stop of an
automobile because the passenger fit the description of a person suspected in a past armed
robbery deemed reasonable).
In Terry the Supreme Cout held that not only was the stop lawful, but that the
ensuing frisk wherein a weapon was found was also lawful. We recognize that in the
instant case the frisk of Serrano revealed no contraband, but that the more-or-less
contemporaneous search of his vehicle for a firearm revealed the 50 grams of crack
cocaine. The legality of such a search and seizure is largely controlled by Michigan v.
Long, 463 U.S. 1032 (1983).
In Michigan, the Supreme Court stated that a protective search for firearms of the
passenger compartment of a vehicle which a suspect had been driving was reasonable
under the principles enumerated in Terry v. Ohio, supra, where the police had a
reasonable belief that the suspect posed a danger. In this latter connection, Detective
Garcia had been advised by Bankhead that Serrano carried a gun, which, of course, could
be either on his person or in his vehicle. Detective Garcia, in our view, had a reasonable
belief that Serrano posed a danger which justified a search of the interior of Serranos
vehicle for firearms. In Michigan, as in our case, the search of the vehicle for firearms
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disclosed drugs. In this general connection, the Supreme Court in Michigan spoke as
follows:
These principles compel our conclusion that the search
of the passenger compartment of an automobile, limited to
those areas in which a weapon may be placed or hidden, is
permissible if the police officer possesses a reasonable belief
based on specific and articulable facts which, taken together
with the rational inferences from those facts, reasonably
warrant the officer in believing that the suspect is dangerous
and the suspect may gain immediate control of weapons. See
Terry, 392 U.S., at 21. [T]he issue is whether a reasonably
prudent man in the circumstances would be warranted in the
belief that his safety or that of others was in danger. Id., at
27. If a suspect is dangerous, he is no less dangerous
simply because he is not arrested. If, while conducting a
legitimate Terry search of the interior of the automobile, the
officer should, as here, discover contraband other than
weapons, he clearly cannot be required to ignore the
contraband, and the Fourth Amendment does not require its
suppression in such circumstances. Coolidge v. New
Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.
2d 564 (1971); Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct.
1942, 1949, 56 L.Ed. 2d 486 (1978); Texas v. Brown, --- U.S.
---,---,---, 103 S.Ct. 1535, 1541, 1544, 75 L.Ed. 2d 502
(1983).
********
The circumstances of this case clearly justified
Deputies Howell and Lewis in their reasonable belief that
Long posed a danger if he were permitted to reenter his
vehicle . . . .
Michigan, 463 U.S. at 1049-1050; see also United States v. Pappas, 735 F.2d 1232, 1234
(10th Cir. 1984) (protective search of compartment in defendants car was reasonable
under principles laid down in Terry and reiterated in Michigan).
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In sum, under the authorities above cited, Detective Garcia had a reasonable
suspicion that Serrano had been involved in, or knew something about, the murders of
Garner and Guzman, and, such being the case, neither his stop of Serranos vehicle nor
the protective search of Serranos vehicle which resulted in the seizure of the crack
cocaine hidden under the passengers seat was unlawful. The district court erred in
granting the motion to suppress.
Judgment reversed and case remanded with directions that the district court vacate
its order granting Serranos motion to suppress, with further proceedings to be consistent
with the views herein expressed.
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