United States v. Pedro Pablo Hernandez

Opinion by Judge HALL; Dissent by Judge WIGGINS.

We are called upon to decide whether the police used an alleged parking violation as a pretext to search for evidence of an unrelated, more serious offense. We hold that the stop was pretextual and that the district court erred by failing to suppress the fruits of the search.

I.

At the time of the arrest, appellant Pedro Hernandez was on. parole from state prison for a felony drug conviction. He attracted the attention of local police, who were aware of his conviction and suspected that he once •again was involved in illegal drug activity.

Officer Lon Bomar of the Montana Highway Patrol was patrolling Interstate 90 when he noticed Hernandez driving a Chevrolet car on a frontage road parallel to the interstate. Officer Bomar suspected that Hernandez was speeding but could not clock his speed, so he turned off the interstate and followed him on the frontage road.

Officer Bomar spotted Hernandez’s Chevrolet parked on Scott Street, an unpaved street just off the interstate. It was parked behind a Cadillac in which Hernandez and a man later identified as Anthony Kim Martinez were sitting. Both ears were parked on the right hand side…

dissenting:

I respectfully dissent. Contrary to the majority, I conclude that the initial stop of Hernandez’s vehicle was not pretextual. Because I also conclude that the subsequent searches of Hernandez’s vehicle and residence were permissible, and that sufficient evidence supported Hernandez’s conviction on count II, I would affirm the judgment of the district court.

As the majority notes, our 'prior cases demonstrate some confusion about the proper test for. determining whether a stop is pretextual. Op. 445-46 & n. 2. Even assuming the majority is correct that this circuit applies an objective “reasonable officer” test, however, I believe the majority has misapplied that test. The Fourth Amendment to the United States Constitution allows an officer to make an investigatory stop when he has an “articulable suspicion” that a law has been violated. Terry v. Ohio, 392 U.S. 1, 21 , 88 S.Ct. 1868, 1879-80 , 20 L.Ed.2d 889 (1968). A “reasonable officer” who has an articulable suspicion that a suspect has broken the law presumably would stop that suspect. The fact that the officer also may have hoped to discover evidence of other crimes does not necessarily render the stop invalid.…

55 F.3d 443 63 USLW 2771 UNITED STATES of America, Plaintiff-Appellee, v. Pedro Pablo HERNANDEZ, Defendant-Appellant. No. 94-30109. United States Court of Appeals, Ninth Circuit. Submitted Feb. 9, 1995. * Decided May 17, 1995. Arturo Hernandez, San Jose, CA; Santiago E. Juarez, Espanola, NM, for defendant-appellant. Klaus P. Richter, Asst. U.S. Atty., Billings, MT, for plaintiff-appellee. Appeal from the United States District Court for the District of Montana. Before: WRIGHT, HALL, and WIGGINS, Circuit Judges. Opinion by Judge HALL; Dissent by Judge WIGGINS. CYNTHIA HOLCOMB HALL, Circuit Judge: 1 We are called upon to decide whether the police used an alleged parking violation as a pretext to search for evidence of an unrelated, more serious offense. We hold that the stop was pretextual and that the district court erred by failing to suppress the fruits of the search. I. 2 At the time of the arrest, appellant Pedro Hernandez was on parole from state prison for a felony drug conviction. He attracted the attention of local police, who were aware of his conviction and suspected that he once again was involved in illegal drug activity. 3 Officer Lon Bomar of the Montana Highway…