United States v. Mario Alonzo Millan

36 F.3d 886 UNITED STATES of America, Plaintiff-Appellee, v. Mario Alonzo MILLAN, Defendant-Appellant. No. 93-10641. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 8, 1994. Decided Oct. 4, 1994. John Lambrose, Chief, Asst. Public Defender, Las Vegas, NV, for defendant-appellant. Daniel R. Schiess, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before: FLETCHER, HALL and WIGGINS, Circuit Judges. Opinion by Judge FLETCHER; Concurrence by Judge HALL. FLETCHER, Circuit Judge: 1 Mario Millan appeals his conviction on charges relating to his unlawful possession of a firearm, counterfeit identification documents, and counterfeit immigration documents. He argues that all evidence seized pursuant to a traffic stop should be suppressed, for a number of independent reasons. He claims that the stop was pretextual because the officers would not have pulled him over absent a desire to search for evidence of more serious crime. He also claims that the officers lacked the requisite reasonable suspicion to question him about criminal matters not related to the minor safety concern for which…

Opinion by Judge FLETCHER; Concurrence by Judge HALL.

Mario Millan appeals his conviction on charges relating to his unlawful possession of a firearm, counterfeit identification documents, and counterfeit immigration documents. He argues that all evidence seized pursuant to a traffic stop should be suppressed, for a number of independent reasons. He claims that the stop was pretextual because the officers would not have pulled him over absent a desire to search for evidence of more serious crime. He also claims that the officers lacked the requisite reasonable suspicion to question him about criminal matters not related to the minor safety concern for which he allegedly was stopped. He further contends that he did not voluntarily consent to the search of his car. He finally argues that the district court erred in refusing his proffer of evidence concerning the racial characteristics of thirty-two other individuals stopped by the officers in question.

We reverse and remand. The stop of Mil-lan was pretextual, and all evidence recovered pursuant to it was “tainted fruit” and should have been suppressed. We need not reach the other issues presented in Millan’s appeal,

I

This case…

concurring:

I concur in the panel’s conclusion that the stop of Millan’s car was pretextual and that, as a result, all evidence obtained as a result of the stop must be suppressed. I write separately, however, because I believe that the majority’s discussion of the pretextual stop doctrine, in Part II of its opinion, misstates and misapplies Ninth Circuit law. For this reason, I do not join in Part II of the panel opinion.

The majority’s statement that “[o]ur circuit’s caselaw has not been entirely consistent in the test it has applied to determine pretext,” Majority Opinion at 888, is accurate only up to a point. It is true that some Ninth Circuit eases have in the past been interpreted as mandating a subjective inquiry into police officers’ intentions when analyzing a pretextual stop claim, whereas others applied an objective, “reasonable officer” test. Any inconsistency, however, was reconciled by United States v. Cannon, 29 F.3d 472 (9th Cir.1994).

Cannon surveyed the Ninth Circuit pre-textual stop cases, as well as those of other circuits. The opinion noted that “[s]ome of our language has implied that [the] subjective inquiry is required,” id. at 475 , but went on to hold…