United States v. Padilla-Esparza

Filing

[10294738] Affirmed; Terminated on the merits after oral hearing; Written, signed, published. Judges Lucero, Tymkovich and Matheson, authoring judge. Mandate to issue. [14-2191]

Appellate Case: 14-2191

Document: 01019475890

Date Filed: 08/14/2015

PUBLISH

Page: 1
FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

August 14, 2015

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

No. 14-2191

DANIEL ENRIQUE PADILLAESPARZA,
Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 2:13-CR-03676-KG-1)

Kari Converse, Assistant Federal Public Defender (Stephen P. McCue, Federal Public
Defender, with her on the briefs), Office of the Federal Public Defender, Albuquerque,
New Mexico, appearing for Defendant-Appellant.
Anna R. Wright, Special Assistant United States Attorney (Damon P. Martinez, United
States Attorney, with her on the brief), Office of the United States Attorney, Las Cruces,
New Mexico, appearing for Plaintiff-Appellee.

Before LUCERO, TYMKOVICH, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

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United States Customs and Border Protection (“CBP”) Officer Manuel Aguilera
issued a “Be on the Lookout” (“BOLO”) alert for Daniel Padilla-Esparza and his truck
for suspected bulk cash or drug smuggling. Based on the BOLO, United States Border
Patrol agents (“BPAs”) stopped Mr. Padilla-Esparza after he crossed the Las Cruces,
New Mexico border patrol checkpoint. The BPAs released him because they believed
they had stopped the wrong truck. When they discovered a few minutes later they had
actually stopped the right truck, they initiated a second stop. After a drug-detection dog
alerted to the presence of narcotics, they discovered 16 kilograms of cocaine in a nonfactory compartment.
Based on the evidence seized, a federal grand jury charged Mr. Padilla-Esparza
with one count of possession with intent to distribute 5 kilograms or more of cocaine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He filed a motion to suppress,
contending the BPAs seized evidence in violation of the Fourth Amendment. The district
court denied his motion. He then entered a conditional guilty plea, reserving the right to
appeal the denial of his motion to suppress. Mr. Padilla-Esparza now appeals.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual Background
Mr. Padilla-Esparza is a Mexican citizen and United States lawful permanent
resident. On February 25, 2013, he was traveling from Mexico to the United States
through the Paso del Norte (“PDN”) port of entry in El Paso, Texas. CBP officers
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stopped Mr. Padilla-Esparza after a drug-detection dog alerted to his truck. Officers
searched his truck and found an empty, hidden non-factory compartment. The officers
released Mr. Padilla-Esparza, but they entered an alert on the Treasury Enforcement
Communications System (“TECS”)1 regarding Mr. Padilla-Esparza and his truck—a
silver Honda Ridgeline with temporary license plates.
Nearly seven months later, on September 7, 2013, CBP officers conducting
outbound inspections stopped Mr. Padilla-Esparza at PDN while he was traveling
southbound to Mexico. Mr. Padilla-Esparza had two pieces of luggage and declared that
he had $300 in cash. Shortly thereafter, he reported having an additional $2,000 in cash
hidden in a camera case. The officers referred Mr. Padilla-Esparza for further inspection
and ran his information through the TECS, where they came across the February 25, 2013
TECS alert.
The officers informed CBP Officer Aguilera. He ran a query for the prior six
months and learned that Mr. Padilla-Esparza had traveled through the Las Cruces and
Alamogordo, New Mexico border patrol checkpoints at least once per month.
Officer Aguilera and his partner interviewed Mr. Padilla-Esparza. Mr. PadillaEsparza told them he was traveling from his home in Denver, Colorado to meet his
girlfriend at the airport. He told them he owned a landscaping business and worked for
clients in Albuquerque, Santa Fe, and Colorado. He had no paperwork for his last three
1

TECS is a database used by CBP to input information related to a particular
person and create alerts.
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jobs, could not remember the names or addresses of his last three clients, and could not
remember how much he was paid for each job. The officers also searched Mr. PadillaEsparza’s belongings and found receipts totaling $1,300 for new clothing from outlet
malls. Based on his knowledge and experience, Officer Aguilera found Mr. PadillaEsparza’s spending habits and his limited explanation of his landscaping business to be
inconsistent.
Later that day, Officer Aguilera created a second TECS alert for Mr. PadillaEsparza, noting possible bulk cash or drug smuggling, and updated TECS with Mr.
Padilla-Esparza’s permanent license plate number. Officer Aguilera also set up an alert
to be sent to his cell phone when Mr. Padilla-Esparza returned to the United States.
On September 10, 2013, Officer Aguilera received an alert that Mr. PadillaEsparza had re-entered the United States. Officer Aguilera contacted the CBP Operations
Center and activated a BOLO for Mr. Padilla-Esparza and his truck. The Operations
Center disseminated the BOLO to the United States Border Patrol and other law
enforcement agencies. The BOLO stated,
Daniel Enrique Padilla Esparza . . . may attempt to smuggle narcotics or
currency thru the Las Cruces or Alamogordo Border Patrol Checkpoints.
Subject may be driving a Gray Honda Ridgeline bearing Colorado plates
236YWY. Vehicle has a non factory compartment on top of the gas tank.
Subject last made entry into the United States on 9/10/13 at 2109 hours
(MDT) thru the Paso Del Norte Port of Entry. Lookouts have been
generated on subject and vehicle. If encountered, detain and conduct
intensive exam.
Supp. ROA at 38.
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Three days later, on September 13, 2013, at around 6:00 a.m., BPAs at the Las
Cruces Border Control checkpoint on Interstate 25 reviewed Mr. Padilla-Esparza’s
BOLO during their morning meeting. Later that day, around noon, Mr. Padilla-Esparza
entered the Las Cruces Border Patrol checkpoint in his truck. It was raining hard and
traffic was heavy. For safety reasons, BPA Cindy Morales, who was conducting
northbound inspections, exercised her discretion to temporarily forgo inspections and
waved vehicles through, including Mr. Padilla-Esparza’s.
At the same time, BPA Ivan Cervantes was monitoring the License Plate Reader
(“LPR”).2 When Mr. Padilla-Esparza’s truck entered the ramp leading up to the
checkpoint, the LPR alerted that Mr. Padilla-Esparza’s vehicle had a BOLO on it. BPA
Cervantes informed BPA Morales.3 BPA Morales stopped traffic, and both agents began
searching for Mr. Padilla-Esparza’s truck. BPA Cervantes spotted the truck leaving the
checkpoint and realized that BPA Morales had already waved it through.
BPA Cervantes informed BPAs Erik Cansino and Gary Adams that he believed
the subject of the BOLO reviewed at the morning meeting had just been waved through
the checkpoint. He then got into his service truck with his drug-detection dog and

2

The LPR takes photos of inbound vehicles’ license plates and runs checks on the
vehicle, including any alerts. It then relays the information to BPAs.
3

BPA Cervantes only briefly glanced at the LPR’s screen before contacting BPA
Morales. As a result, he only noted the vehicle’s color and make. He did not remember
the BOLO subject’s name or license plate number.
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proceeded after Mr. Padilla-Esparza. BPAs Cansino and Adams also pursued Mr.
Padilla-Esparza in a separate car.
BPAs Cansino and Adams caught up with Mr. Padilla-Esparza first. At 12:04
p.m., they stopped his truck on I-25, approximately 15 miles from the checkpoint. BPA
Adams reported to dispatch that they had pulled over a truck bearing Colorado license
plate 236YWY. BPA Cansino then approached the driver’s side window. As he
approached, Mr. Padilla-Esparza rolled down his window and handed BPA Cansino his
driver’s license and permanent resident alien card. BPA Cansino quickly looked into Mr.
Padilla-Esparza’s truck to make sure he was the only occupant. He then returned to his
vehicle.
As BPA Cansino was returning to his vehicle, BPA Cervantes arrived at the scene.
BPA Cervantes erroneously informed BPA Cansino that the subject of the BOLO had
New Mexico license plates, and that they had stopped the wrong vehicle. BPA Cansino
immediately returned Mr. Padilla-Esparza’s documents and released him.
As Mr. Padilla-Esparza was driving away, BPA Adams again contacted dispatch.
Dispatch informed the agents that Mr. Padilla-Esparza’s truck was in fact the subject of
the BOLO. Upon learning this information, the agents began pursuing Mr. PadillaEsparza again.
At 12:07 p.m., BPAs Cansino and Adams initiated a second traffic stop of Mr.
Padilla-Esparza two miles down the road. BPA Cansino asked Mr. Padilla-Esparza for
consent to perform a canine search of his truck. He consented.
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BPA Cervantes arrived with his drug-detection dog and confirmed with Mr.
Padilla-Esparza his consent to the search. The dog, which was certified to detect the odor
of narcotics, began alerting midway along the tailgate and tried to get underneath the
truck.
The BPAs informed Mr. Padilla-Esparza that the dog had alerted to his truck. Due
to the rain, BPA Cansino asked Mr. Padilla-Esparza if he would follow the agents back to
the checkpoint. Mr. Padilla-Esparza agreed. At the checkpoint, BPA Cervantes searched
Mr. Padilla-Esparza’s truck and found 16 kilograms of cocaine in the non-factory
compartment.
B. Procedural Background
On November 13, 2013, a federal grand jury indicted Mr. Padilla-Esparza for one
count of possession with intent to distribute 5 kilograms or more of cocaine in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(A). On March 21, 2014, Mr. Padilla-Esparza moved
to suppress the evidence seized from his truck. After conducting an evidentiary hearing,
the district court denied the motion.
Mr. Padilla-Esparza pled guilty under a conditional plea agreement that allowed
him to appeal the district court’s denial of his motion to suppress. The court sentenced
him to 78 months in prison followed by two years of supervised release. Mr. Padilla
timely appealed.

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II. DISCUSSION
Mr. Padilla-Esparza challenges the district court’s denial of his motion to suppress
on two grounds.4 He argues (1) the first stop on September 13, 2013, was unlawful
because Officer Aguilera lacked reasonable suspicion to issue the September 10, 2013
BOLO, which was the basis for the stop, and (2) the BPAs lacked reasonable suspicion
for their second stop. We conclude reasonable suspicion supported both the BOLO and
the second stop. Accordingly, we affirm.
A. Standard of Review and Legal Background
1. Standard of Review
In reviewing “a district court’s denial of a motion to suppress, we review de novo
the district court’s ultimate determination of reasonableness under the Fourth
Amendment.” United States v. Ruiz, 664 F.3d 833, 838 (10th Cir. 2012). “[W]e accept
the district court’s factual findings unless they are clearly erroneous and we view the
evidence in the light most favorable to the prevailing party.” Id.
2. Legal Background
The Fourth Amendment protects individuals from “unreasonable searches and
seizures.” U.S. Const. amend. IV. A traffic stop is a seizure under the Fourth
Amendment. United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1226 (10th Cir.
2008). A traffic stop is valid if it (1) is “justified at its inception” by “specific and
4

Before the district court, Mr. Padilla-Esparza also argued the evidence should be
suppressed on five additional grounds. On appeal, he does not contest the district court’s
denial of his motion on these grounds.
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articulable facts” that “give rise to a reasonable suspicion a person has or is committing a
crime,” United States v. Whitley, 680 F.3d 1227, 1232 (10th Cir. 2012), and (2) is
“reasonably related in scope to the circumstances which justified the interference in the
first place,” United States v. Tibbetts, 396 F.3d 1132, 1136 (10th Cir. 2005).
Although reasonable suspicion is a less rigorous standard than probable cause, it
requires “more than an inchoate and unparticularized suspicion or hunch.” United States
v. McHugh, 639 F.3d 1250, 1255 (10th Cir. 2011) (quotations omitted). In determining
whether reasonable suspicion exists, we consider the totality of the circumstances “rather
than assessing each factor or piece of evidence in isolation.” Id. at 1256. “Under this
objective standard, we ask whether the facts available to the detaining officer, at the time,
warranted an officer of reasonable caution in believing the action taken was appropriate.”
Id. (quotations omitted). Officers “need not rule out the possibility of innocent conduct,”
United States v. Arvizu, 534 U.S. 266, 277 (2002), and may “draw on their own
experience and specialized training to make inferences from and deductions about the
cumulative information available to them that might well elude an untrained person,” id.
at 273 (quotations omitted).
“When law enforcement officials rely on a bulletin or alert to conduct a stop or
make an arrest, the relevant inquiry is whether the officer who issued the alert—rather
than the officer who conducted the challenged action—had the requisite level of
suspicion.” Rodriguez-Rodriguez, 550 F.3d at 1227; accord United States v. Hensley,
469 U.S. 221, 233 (1985). Therefore, we must ask (1) whether Officer Aguilera had
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reasonable suspicion that Mr. Padilla-Esparza was engaging in criminal activity to issue
the BOLO, and (2) whether reasonable suspicion still existed when the BPAs initiated the
second stop.
B. Analysis
1. Officer Aguilera Had Reasonable Suspicion to Issue the BOLO
Mr. Padilla-Esparza argues the first stop violated the Fourth Amendment because
Officer Aguilera did not have reasonable suspicion to issue the BOLO. We disagree.
The following facts, known to Officer Aguilera, formed a reasonable basis to issue
the BOLO. First, he knew a drug-detection dog had alerted to a hidden, non-factory
compartment in Mr. Padilla-Esparza’s truck on February 25, 2013. Based on his
experience as a 16-year veteran of the CBP, Officer Aguilera knew such compartments
often are used to hide contraband, and that the dog alert suggested the compartment may
have been used to store currency or narcotics.
Second, Officer Aguilera knew that on September 7, 2013, Mr. Padilla-Esparza
initially failed to declare $2,000 dollars he had hidden in his camera case and that
currency or drug smugglers often do not declare the full amount of cash they carry across
the border.
Third, Officer Aguilera knew that on September 7, 2013, Mr. Padilla-Esparza had
receipts for $1,300 in clothing purchases from outlet malls. He detected inconsistencies
between these purchases and Mr. Padilla-Esparza’s inability to offer any details about

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how he made money, including the identity of his most recent landscaping clients or how
much he was paid for each job.
Finally, Officer Aguilera knew Mr. Padilla-Esparza had frequently traveled
through the Las Cruces and Alamogordo checkpoints in the past six months, which was
consistent with bulk cash or drug smuggling.5
Considering the totality of the circumstances, see United States v. Sokolow, 490
U.S. 1, 8-10 (1989), we conclude Officer Aguilera had reasonable suspicion Mr. Padilla
was involved in criminal activity.
Mr. Padilla-Esparza raises two arguments. First, he argues that the facts relied on
by the district court are subject to innocent explanations. In particular, he argues the
mere existence of a hidden compartment, his statements regarding his landscaping
business, and his travel through checkpoints are all subject to innocent explanation.
Perhaps they are, but the possibility of innocent explanations does not foreclose
reasonable suspicion, Arvizu, 534 U.S. at 277, and does not undermine it here.
Second, Mr. Padilla-Esparza argues he had traveled through the New Mexico
checkpoints the prior six months without BPAs finding anything suspicious. Nothing in

5

The Government also relies on Officer Aguilera’s testimony that Mr. PadillaEsparza stated “I never go to Mexico,” in response to Officer Aguilera’s asking why he
did not take his vehicle into Mexico. ROA, Vol. III at 23. Mr. Padilla-Esparza argues
that his response most likely reflects a language barrier given that he was in line to enter
Mexico at the time. We do not rely on this statement to affirm on the issue of reasonable
suspicion.

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the record, however, indicates the BPAs searched Mr. Padilla-Esparza’s truck during that
time.
Accordingly, because Officer Aguilera had reasonable suspicion to issue the
BOLO, the first stop was valid and the district court did not err.
2. The BPAs Had Reasonable Suspicion for the Second Stop
Mr. Padilla-Esparza argues the BPAs lacked reasonable suspicion for the second
stop. He contends that (1) any reasonable suspicion based on the BOLO dissipated after
the first stop and (2) the agents did not acquire any new information between the two
stops to establish reasonable suspicion. We conclude the BPAs’ reasonable suspicion
was not dissipated after the first stop. The second stop was therefore reasonable.
Successive investigatory stops are not per se prohibited, though a second stop is
“inherently more intrusive and coercive than the first.” United States v. Ilazi, 730 F.2d
1120, 1126 (8th Cir. 1984). Rather, a second stop violates the Fourth Amendment when
the prior stop had dissipated the reasonable suspicion offered to justify the second stop.
See United States v. Peters, 10 F.3d 1517, 1522 (10th Cir. 1993). A law enforcement
official may perform a second investigatory stop as long as nothing in the first encounter
“serves to dispel his [or her] fears and suspicions” that “criminal conduct may be afoot.”
Id. (quotations omitted).
Mr. Padilla-Esparza’s reliance on Peters is misplaced. In Peters, two defendants
were convicted of unlawful possession of identification documents and false
representation of citizenship based on evidence discovered during a second investigatory
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stop. Id. at 1518, 1520. A police officer first stopped the defendants in Flagstaff,
Arizona for weaving. Id. at 1519. The officer obtained driver’s licenses from both, who
said they were moving from California to Dallas. Id. The officer asked where they were
originally from, and the men responded they were Nigerian. Id. The officer observed
they were “extremely nervous.” Id. A computer check of their licenses, however,
revealed no irregularities. Id. The officer decided to investigate whether the defendants
were nervous because they were transporting illegal drugs. Id. He requested a drugdetection dog, but none was available. Id. The driver consented to a manual search of
the truck, which revealed no evidence of drugs or other illegal activity. Id. The officer
issued the driver a warning for weaving and let the defendants go. Id.
After the encounter, however, the officer was not satisfied with the search because
of the defendants’ nervousness and his failure to obtain a drug-detection dog. Id. The
matter was referred to an agent at the border patrol station in Albuquerque, New Mexico.
Id. at 1520. The agent intercepted the defendants’ truck and pulled them over based on
what he perceived to be “nervous behavior.” Id. He also requested back-up and a drugdetection dog, which both promptly arrived. Id. The agent obtained permission to search
one of the defendants’ wallets and found a counterfeit social security card. Id. The agent
and back-up officers also obtained permission to search the truck, where they found
additional false identification documents. Id.
The defendants moved to suppress the evidence, arguing the agent lacked
reasonable suspicion for the second stop. Id. at 1518-19. The district court denied the
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motion. Id. at 1518. We reversed, concluding that the second stop was not valid because
the DEA agent lacked “an objective and particularized basis for his suspicions that was
reasonable and sufficient to justify the second intrusion.” Id. at 1521. We explained that
“[t]he results of the initial stop in Flagstaff, without any new information, dispelled any
reasonable suspicion of illegal activity as a matter of law.” Id.
Unlike in Peters, the BPAs’ initial stop of Mr. Padilla-Esparza did not dispel
reasonable suspicion. After obtaining Mr. Padilla-Esparza’s identification, the agents
quickly aborted the stop based upon BPA Cervantes’s erroneous belief that they had
pulled over the wrong truck. The BPAs did not question Mr. Padilla-Esparza or search
his vehicle. When dispatch confirmed that they had released the correct suspect,
reasonable suspicion based on the BOLO remained and the agents were justified in
initiating a second stop.6 The second stop did not violate the Fourth Amendment.7
III. CONCLUSION
Based on the foregoing, we affirm.
6

Because we conclude that reasonable suspicion was not dissipated after the first
stop, we do not reach the Government’s alternative arguments that (1) new information
supported the second stop and (2) the good-faith exception should apply.
7

Mr. Padilla-Esparza also argues that the canine search of his vehicle was
unconstitutional. In his opening brief, however, he argues only that the canine search
was illegal because the agents did not have reasonable suspicion to stop him. Because we
conclude reasonable suspicion supported the second stop, this argument also fails. To the
extent Mr. Padilla-Esparza attempts to cast this as a separate ground for reversing the
district court in his reply brief, we decline to consider it because it was not raised in his
opening brief. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).

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