Monday, August 31, 2009

Avoid a DUI when cop mistakenly thinks of location of registration decal in place believed by cop it should be (but not legally required)

A case that helps California DUI criminal defense attorneys out of the 9th Circuit Court of Appeals is USA v LOPEZ SOTO.

UNITED STATES OF AMERICA,No. 99-50201Plaintiff-Appellee,D.C. No.v.CR-98-02396-BTM ARMANDO LOPEZ-SOTO,OPINION Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding Argued and Submitted January 5, 2000--Pasadena, California Filed March 8, 2000Before: Stephen S. Trott and William A. Fletcher,Circuit Judges, and Donald W. Molloy,1 District Judge.

Opinion by Judge William A. Fletchering that indicates erroneously that the vehicle is not displaying a current registration decal in the correct manner. San Diego Police Officer Randall Hill noticed that the car driven by appellant Armando Lopez-Soto had Baja California license plates. Hill had been instructed at the police academy that Baja California requires that registration decals be affixedto a vehicle so that they are visible from the rear. In fact, the relevant Baja California code section provides that the sticker must be placed on the upper right-hand corner of the windshield. Hill did not check the windshield. Had he done so, he would have seen that there was no registration decal on it.Hill pulled the car over and asked Lopez-Soto for proof of registration. Lopez-Soto motioned to a piece of paper stuck to the rear window. Because the writing on the paper was light, Hill could not read it from outside the vehicle. When he opened the rear door for a closer look, he smelled a strong odor that he recognized as marijuana, and saw foil-wrapped bricks protruding from beneath the rear floor mats. Hill's search of the car revealed 400 kilos of marijuana. Lopez-Soto was charged with possession of marijuana with intent to distribute. He moved to suppress the evidence on the ground that Hill had no legal basis for stopping the car.The district court denied the motion, ruling that the stopwas valid. Alternatively, the court concluded that the evidencewas admissible under the "inevitable discovery " exception tothe exclusionary rule because Hill would have seen theabsence of a registration sticker on the windshield when hepassed Lopez-Soto's car. Lopez-Soto appealed.[1] The Fourth Amendment requires only reasonable suspi-cion in the context of investigative stops. [2] Reasonable sus-picion is formed by specific, articulable facts which, togetherwith objective and reasonable inferences, form the basis forsuspecting that the person detained is engaged in criminalactivity. An officer is entitled to rely on his training and expe-rience in drawing inferences from the facts he observes, butthose inferences must be grounded in objective facts and becapable of rational explanation.[3] Officer Hill stopped Lopez-Soto because he had beeninstructed that the absence of a registration sticker visiblefrom the rear provided a reasonable basis for suspicion of aBaja California vehicle code violation. However, that policyacademy training was in error. Hill stopped Lopez-Sotobecause he had a mistaken view of the law.[4] The traffic stop was not objectively grounded in thegoverning law. What Officer Hill reasonably suspected,namely that Lopez-Soto had not affixed a registration stickerto his rear window, was not a violation of Baja California law.This could not justify the stop under the Fourth Amendment.Nor was it possible to justify the stop objectively with thefacts available to Hill when he made the stop: Hill did notcheck the windshield.[5] There was no doubt that Hill held his mistaken view ofthe law in good faith, but there is no good-faith exception tothe exclusionary rule for police who do not act in accordancewith governing law. To create an exception in this case wouldhave defeated the purpose of the exclusionary rule, for itwould have removed the incentive for police to make certainthat they properly understand the law they are entrusted toenforce. [6] Hill violated the Fourth Amendment when hestopped Lopez-Soto. The evidence had to be suppressed.[7] The inevitable discovery exception to the exclusionaryrule is available when the government demonstrates by a pre-ponderance of the evidence that it would inevitably have dis-covered the evidence through lawful means. However, thegovernment provided no evidence of what Officer Hill wouldhave done if he had not stopped Lopez-Soto when he did, andnever argued inevitable discovery to the district court. Theevidence before the court did not show that Hill intended todrive to the front of Lopez-Soto's car to check the windshield.The court committed clear error in concluding that Hill wouldinevitably have discovered that Lopez-Soto had not affixed aregistration sticker to his windshield. _____________________________COUNSEL Benjamin L. Coleman, Federal Defenders of San Diego, Inc.,San Diego, California, for the defendant-appellant.Paul C. Johnson, Jr., Assistant United States Attorney, SanDiego, California, for the plaintiff-appellee. _____________________________OPINION W. FLETCHER, Circuit Judge:Defendant-appellant Armando Lopez-Soto appeals fromthe district court's denial of his motion to suppress evidencethat was the basis of his conviction. Because the police officerwho discovered the evidence did so only after he had stoppedLopez-Soto's car without reasonable suspicion, we concludethat the stop violated the Fourth Amendment and that the evi-dence must be suppressed.IOn July 22, 1998, San Diego Police Officer Randall Hillwas driving behind and to the left of Lopez-Soto's MercuryGrand Marquis as it headed northbound on Interstate 805.Officer Hill noticed that the car displayed license plates fromBaja California, Mexico. Aware that California law requiresforeign vehicles traveling on state roadways to be properlyregistered in their home jurisdictions, Officer Hill checked thecar for a valid Baja California registration sticker.According to affidavits submitted to the district court, Offi-cer Hill had been instructed at the police academy that BajaCalifornia requires motorists to affix registration stickers insuch a manner that they are visible from the rear of the vehi-cle. Officer Hill looked for a sticker on the rear window andon the left side windows, but he did not check the windshield.When he did not see a registration sticker, he stopped Lopez-Soto's car to investigate whether it was in fact properly regis-tered.Officer Hill approached Lopez-Soto's car from the right,leaned into the front passenger-side window, and askedLopez-Soto for proof of registration. In response to OfficerHill's question, Lopez-Soto motioned to a piece of paperaffixed to the rear window. Because the printing on the paperwas light, Officer Hill could not make out the writing fromoutside the car. He therefore opened the right rear passenger-side door and leaned into the car to remove the paper for acloser look.2 At this point, he was assailed with a pungentodor that he recognized as marijuana, and he noticed somefoil-wrapped bricks sticking out from beneath the rear floormats. His subsequent search of the car and its trunk revealedapproximately 400 kilograms of marijuana.Lopez-Soto was arrested and charged with possession ofmarijuana with intent to distribute, in violation of 21 U.S.C.S 841(a)(1). Lopez-Soto moved to suppress the marijuana,arguing that it had been discovered in violation of the FourthAmendment. The district court denied this motion. Lopez-Soto then entered a conditional guilty plea, reserving his rightto appeal the denial of his motion to suppress. That appeal isnow before us, and we reverse for the reasons set forth below.IIWe review the district court's determination of reasonablesuspicion or probable cause de novo and its underlying factualfindings for clear error. See Ornelas v. United States, 517U.S. 690, 699 (1996).Before reaching the question of the constitutionality of thestop in this case, we must first decide whether reasonable sus-picion or the higher standard of probable cause is required tosupport an investigatory traffic stop under the Fourth Amend-ment. Lopez-Soto argues that the Supreme Court's decision inWhren v. United States, 517 U.S. 806 (1996), stands for theproposition that an officer must have probable cause to makea traffic stop. He relies on the Court's observation that, "[a]sa general matter, the decision to stop an automobile is reason-able where the police have probable cause to believe that atraffic violation has occurred." Id. at 810.Prior to Whren, it was settled law that reasonable suspicionis enough to support an investigative traffic stop. As theSupreme Court explained, the usual traffic stop is more analogous to a so-called Terry stop than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose observations lead him rea- sonably to suspect that a particular person has com- mitted, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoke suspicion.Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (citations,footnotes, and internal quotations omitted). Likewise, in thecontext of a traffic stop, the Ninth Circuit has held that "[t]odetain a suspect, a police officer must have reasonable suspi-cion . . . ." United States v. Michael R., 90 F.3d 340, 346 (9thCir. 1996); see also 4 Wayne R. LaFave, Search and SeizureS 9.4 n.3 (3d ed. 1996) (noting that the Terry standard appliesto vehicle stops).We do not believe that the Court in Whren intended tochange this settled rule. The passage on which Lopez-Sotorelies tells us only that probable cause is sufficient to supporta traffic stop, not that it is necessary. If the Supreme Courtannounced in Whren a new rule of law, as Lopez-Soto con-tends, we would expect it to have acknowledged the changeand explained its reasoning. Such an explanation is notablyabsent from the Whren opinion. Instead, the facts of Whreninvolved speeding and failure to signal, and the parties agreedthat, from these facts, the police had probable cause to makethe disputed stop. See 517 U.S. at 810 . This threshold agree-ment allowed the Whren Court to address a different issue,namely the constitutional relevance of the officers' subjectiveintent in making the stop, to which the Court gave sustainedattention. Given that probable cause was clearly satisfied onthe facts before the Court in Whren and that the Courtdirected its focus elsewhere, we do not believe that the casualuse of the phrase "probable cause" was intended to set a newstandard.[1] Moreover, none of our sister circuits, either before orafter Whren, has concluded that a traffic stop must be justifiedby more than reasonable suspicion. Where the facts before thecourt would satisfy both reasonable suspicion and probablecause, many of the more recent cases echo the language inWhren and simply analyze the facts for probable cause, see,e.g., United States v. Sanders, 196 F.3d 910, 913 (8th Cir.1999); United States v. Brown, 188 F.3d 860, 864 (7th Cir.1999); United States v. Jones, 185 F.3d 459, 464 (5th Cir.1999); United States v. Wellman, 185 F.3d 651, 656 (6th Cir.1999), but none of these cases suggests that probable cause isthe minimum threshold for constitutionally permissible policeaction in making a traffic stop. In fact, some circuits haveexplicitly held, post-Whren, that reasonable suspicion is allthe Fourth Amendment requires. See, e.g., United States v.Hill, 195 F.3d 258, 264 (6th Cir. 1999); United States v.Navarrete-Barron, 192 F.3d 786, 790 (8th Cir. 1999); UnitedStates v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999). Wejoin those circuits and reaffirm that the Fourth Amendmentrequires only reasonable suspicion in the context of investiga-tive traffic stops.[2] Accordingly, we must determine whether Officer Hillhad reasonable suspicion when he stopped Lopez-Soto. Rea-sonable suspicion is formed by "specific, articulable factswhich, together with objective and reasonable inferences,form the basis for suspecting that the particular persondetained is engaged in criminal activity." Michael R., 90 F.3dat 346 (quoting United States v. Garcia-Camacho, 53 F.3d244, 246 (9th Cir. 1995)). An officer is entitled to rely on histraining and experience in drawing inferences from the factshe observes, but those inferences must also "be grounded inobjective facts and be capable of rational explanation." Id.;see also United States v. Sokolow, 490 U.S. 1, 7 (1989) ("TheFourth Amendment requires some minimal level of objectivejustification for making the stop." (internal quotation omit-ted)).[3] Officer Hill stopped Lopez-Soto because he had beeninstructed that the absence of a vehicle registration sticker vis-ible from the rear provided a reasonable basis for suspicion ofa Baja California vehicle code violation. That police academytraining, however, was in error. In fact, the applicable BajaCalifornia code section directs that the sticker be displayed onthe windshield. According to a translation provided by theparties, the relevant section provides that "[t]he State Trafficand Transportation Department will provide together with thelicense plates a sticker which should be placed on the upperright hand corner of the windshield." See Ley de Transito yTransportes art. 44 (Baja California, Mex.). Officer Hillstopped Lopez-Soto because he held a mistaken view of thelaw.This case is analogous to two recent Fifth Circuit cases inwhich officers similarly made traffic stops based on a mistakeof law. In United States v. Lopez-Valdez, 178 F.3d 282 (5thCir. 1999), a Texas Department of Public Safety Trooperpulled over a car because it had a broken taillight. The trooperbelieved that driving with a broken taillight violated state law,see id. at 285, but in fact it did not, see id. at 288. The courtof appeals found the stop unconstitutional because, eventhough it may have been made in good faith, it was not objec-tively reasonable. See id. at 289 & n.6. Similarly, in UnitedStates v. Miller, 146 F.3d 274 (5th Cir. 1998), the court foundthat a traffic stop was unreasonable because the allegedinfraction, having a turn signal on without turning, was not aviolation of Texas law. See id. at 279. The Fifth Circuitexplained: The rule articulated by the Supreme Court in Whren provides law enforcement officers broad leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to the legal justi- fications for their actions. But the flip side of that leeway is that the legal justification must be objec- tively grounded.Id. We agree with the Fifth Circuit's rationale.We note that the Eighth Circuit recently upheld a trafficstop of a trailer that had two operating taillights, one of whichwas missing its red lens and emitting a white rather than a redlight. See Sanders, 196 F.3d at 913. State law required alltrailers built after 1973 to have two red taillights, but allowedtrailers built before that date to have only one red taillight.The trailer in question had been built before 1973 and wastherefore not in violation of the law. See id. The court none-theless sustained the reasonableness of the stop, noting thatthe officer could reasonably have believed that the taillightson the trailer were in violation of the statute: Even if the trailer was not technically in violation of the statute, Officer Jorgenson could have reasonably believed that the trailer violated the statute because one light was missing a red lens or because he believed that the trailer was manufactured after 1973. . . . In fact, given the apparent attempt to have two functioning taillights on the trailer, Officer Jor- genson could have reasonably believed at the time that the trailer was subject to the two taillight requirement.Id. The officer's factual belief that the trailer was manufac-tured after 1973 was not unreasonable simply because it wasmistaken. As the Supreme Court has explained, "what is gen-erally demanded of the many factual determinations that mustregularly be made by agents of the government . . . is not thatthey always be correct, but that they always be reasonable."Illinois v. Rodriguez, 497 U.S. 177, 185 (1990); see also, e.g.,United States v. Garcia-Acuna, 175 F.3d 1143, 1147 (9th Cir.1999) (basing reasonable suspicion determination in part onfactually erroneous, but reasonable, belief that license platedisplayed by stopped vehicle did not belong to it); UnitedStates v. Hatley, 15 F.3d 856, 859 (9th Cir. 1994) (upholdingwarrantless search of vehicle that police reasonably believedwas mobile but was in fact immobile); United States v.Shareef, 100 F.3d 1491, 1503 (10th Cir. 1996) (finding noviolation of the Fourth Amendment where the police reason-ably but erroneously believed that the suspect's identitymatched a "hit" from the National Crime Information Centercomputer); United States v. Lang, 81 F.3d 955, 966 (10th Cir.1996) (upholding stop based on reasonable misidentificationof vehicle's passenger); United States v. Gonzales, 969 F.2d999, 1006 (11th Cir. 1992) (remanding probable cause deter-mination for factual finding as to whether officer's mistakenbelief that defendant's wife was conducting countersurveil-lance was objectively reasonable).[4] As in the Fifth Circuit cases of Lopez-Valdez andMiller, the traffic stop in the case before us was not objec-tively grounded in the governing law. What Officer Hill rea-sonably suspected, namely that Lopez-Soto had not affixed aregistration sticker to his rear window, simply was not a vio-lation of Baja California law. This cannot justify the stopunder the Fourth Amendment. Nor is it possible to justify thestop objectively, as did the court in Sanders , with the factsavailable to Officer Hill when he made the stop: in his mis-taken belief that Baja California law required the registrationsticker to be visible from behind, Officer Hill did not checkthe windshield for the sticker. The information that he didgather -- that there was no sticker on the rear or left windows-- did not make it any less likely that Lopez-Soto was operat-ing his car in conformity with the law.[5] We have no doubt that Officer Hill held his mistakenview of the law in good faith, but there is no good-faithexception to the exclusionary rule for police who do not actin accordance with governing law. See United States v. Gantt,194 F.3d 987, 1006 (9th Cir. 1999). To create an exceptionhere would defeat the purpose of the exclusionary rule, for itwould remove the incentive for police to make certain thatthey properly understand the law that they are entrusted toenforce and obey.[6] We therefore hold that Officer Hill violated the FourthAmendment when he stopped Lopez-Soto, and that the evi-dence gathered as a result of the unconstitutional stop must besuppressed. See Wong Sun v. United States, 371 U.S. 471 ,484-85 (1963).IIIAs an alternative basis for its denial of the motion to sup-press, the district court sua sponte applied the inevitable dis-covery exception to the exclusionary rule. The district courtconcluded that, had Officer Hill not stopped Lopez-Soto whenhe did, he would inevitably have passed Lopez-Soto, checkedhis windshield, noted the absence of a registration sticker, andstopped Lopez-Soto after developing a proper factual basis forreasonable suspicion.[7] The inevitable discovery exception to the exclusionaryrule is available when the government demonstrates, by a pre-ponderance of the evidence, that it would inevitably have dis-covered the incriminating evidence through lawful means. SeeUnited States v. Mejia, 69 F.3d 309, 319 (9th Cir. 1995). Thegovernment can meet its burden by demonstrating that, "byfollowing routine procedures, the police would inevitablyhave uncovered the evidence." United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989). In this case,however, the government provided no evidence of what Offi-cer Hill would have done if he had not stopped Lopez-Sotowhen he did, and it never argued inevitable discovery to thedistrict court. The government conceded in its brief to thiscourt that the evidence before the district court did not showthat Officer Hill ever intended to drive to the front of Lopez-Soto's car to check the windshield, and it reiterated its con-cession at oral argument. We therefore find that the districtcourt committed clear error in concluding that Officer Hillwould inevitably have discovered that Lopez-Soto had notaffixed a registration sticker to his windshield.IVBecause we hold that the evidence leading to his convictionshould have been suppressed, we need not reach Lopez-Soto'sclaim regarding the length of his sentence.REVERSED. ___________________________FOOTNOTES 1 Honorable Donald W. Molloy, United States District Judge for the Dis-trict of Montana, sitting by designation.2 Lopez-Soto's attorney asked to inspect the paper and the car, but thegovernment informed him that it could not locate this evidence. Appar-ently, it had sold the car at auction and lost the paper. It is now impossibleto determine whether the paper affixed to the rear window, though not asticker, was nonetheless valid proof of registration.