United States v. Eduardo Javier Perez

Opinion by Judge FLETCHER; Concurrence by Judge HALL.

Eduardo Perez appeals his conviction after a jury trial for possession of four kilograms of cocaine with intent to distribute, a violation of 21 U.S.C. § 841 (a)(1). 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 stopped him absent a desire to search for evidence of more serious crime. He also contends that the officers lacked the requisite reasonable suspicion to question him about criminal matters not related to the purpose of the stop. He contends that he did not consent to the search of his car, and that the scope of the officers’ search exceeded that of any consent he did give. He also 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 affirm.

I

‘“A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do…

concurring:

I agree with the panel’s conclusion that Perez’s conviction should be affirmed. I write separately to express my concern that Part I of the panel opinion, while it reaches the correct result, misstates the law of the Ninth Circuit on pretextual searches. I therefore concur in the panel opinion with the exception of Part I.

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 12034-35, is accurate only up to a point. It is true that some Ninth Circuit cases have in the past been interpreted as mandating a subjective inquiry into police officers’ intentions when analyzing a pretextual stop claim, whereas *517 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 that the prior cases were in fact consistent with the objective test.…

37 F.3d 510 UNITED STATES of America, Plaintiff-Appellee, v. Eduardo Javier PEREZ, Defendant-Appellant. No. 93-10709. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 8, 1994. Decided Oct. 4, 1994. John Lambrose, Asst. Federal Public Defender, Las Vegas, NV, for defendant-appellant. Daniel R. Schiess, Asst. U.S. Atty., Las Vegas, NV, argued (Thomas M. Gannon, on the brief), 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 Eduardo Perez appeals his conviction after a jury trial for possession of four kilograms of cocaine with intent to distribute, a violation of 21 U.S.C. Sec. 841 (a)(1). 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 stopped him absent a desire to search for evidence of more serious crime. He also contends that the officers lacked the requisite reasonable suspicion to question him about criminal matters not related…