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United States v. Torres.

No. 19-2161.  D.N.M. Judge Matheson. Fourth Amendment—Reasonable Suspicion—Probable Cause—Harmless Error.

February 8, 2021

While police officers were surveilling a suspected drug trafficking site, an SUV approached the site and parked against traffic. A female passenger exited and returned about a minute later and the SUV was driven away. An officer stopped the vehicle and recognized the driver as a convicted murderer and the recent victim of a gang-related shooting. As the officer approached the SUV, he smelled burnt marijuana and observed the female passenger.

Officers obtained defendant’s identification, but the passenger denied having identifying information and provided a fake name. She later provided officers her real name and admitted that she had outstanding warrants, had concealed marijuana in her bra, and had tried to buy heroin after exiting the SUV. Defendant then consented to a search of the vehicle, and when defendant exited, officers found a handgun during a pat-down search.

Defendant was charged with being a felon in possession of a handgun. He moved to suppress evidence of the handgun and a magistrate judge recommended denial of the motion. Defendant objected to the recommendation, and the district court judge overruled most of the objections, stating that he was viewing the facts in the light most favorable to the government.

Defendant argued on appeal that the district court committed reversible error when making factual findings by improperly shifting the burden of proof to him. Here, the district judge observed that the government had the ultimate burden to show compliance with the Fourth Amendment, so he did not erroneously shift the burden to defendant. But the district court erred in viewing the evidence in the light most favorable to the government. Because the factual determinations on disputed factual matters stemmed from the wrong perspective, the judge’s findings on those matters were disregarded.

However, if the pat-down search was permissible under the undisputed facts, the perspective error was harmless. Here, officers had probable cause that a parking violation occurred and had no doubt that the SUV was the vehicle that was illegally parked, so the traffic stop was permissible. Further, the officers did not unreasonably extend the traffic stop by questioning the passenger about her identity based on the smell of burnt marijuana, the passenger’s lack of identification, and her evasive answers. And officers had reasonable suspicion to believe defendant was armed and dangerous because they knew he had been convicted of murder, was recently shot by gang members, and had just driven a passenger to an apartment where she tried to buy heroin. Therefore, the pat-down search did not violate the Fourth Amendment. Having reasonable suspicion, the police lawfully conducted the pat-down search, which led to discovery of the handgun. Therefore, the perspective error was harmless, and the district court did not err in denying defendant’s motion to suppress.

The denial of the motion to suppress was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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