                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   July 9, 2008
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                         No. 06-2026
          v.                                           (D. New Mexico)
 DOMINIC JACQUEZ,                                   (D.C. No. 04-1208 JB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, BALDOCK, and TYMKOVICH, Circuit Judges.



      Dominic Jacquez pleaded guilty to possession with intent to distribute

methamphetamine, use of a firearm in connection with a drug trafficking offense,

and use of a residence to distribute methamphetamine. The plea agreement

provided that Mr. Jacquez could appeal the district court’s denial of his motion to

suppress evidence the government directly and indirectly derived from the traffic

stop that led to his arrest. Mr. Jacquez argued that his detention violated his



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Fourth Amendment right to be free from unreasonable seizures because the deputy

who pulled him over had mistakenly concluded he was driving a vehicle

registered to an individual for whom there existed an arrest warrant. After a

hearing, the district court denied Mr. Jacquez’s motion. Because we conclude

that the detention was based on the deputy’s reasonable suspicion of criminal

activity, we conclude that the officer’s actions did not violate Mr. Jacquez’s

Fourth Amendment rights. Taking jurisdiction under 28 U.S.C. § 1291, we affirm

the decision of the district court.

                                 I. BACKGROUND

      On April 8, 2004, a confidential informant reported to Deputy Connie

Johnston, a member of the San Juan County, Sheriff’s Department, that someone

had driven a black Cadillac Escalade away from a local residence known to be

associated with drug activity. The tipster also provided the deputy with the

license plate number of the vehicle. Deputy Johnston’s search of a database

revealed that the vehicle was registered to an individual named Tommy Largo.

Deputy Johnston relayed this information to fellow deputy Brian Dennis. She did

not provide Deputy Dennis with Tommy Largo’s date of birth or a physical

description of him.

      Later that day, Deputy Dennis, who had never encountered Tommy Largo

and had no identifying information for him, observed the black Escalade parked at

a gas station in Farmington, New Mexico. An unidentified male stood near the

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vehicle, pumping gas. Deputy Dennis confirmed that the license plate on the

vehicle matched the number Deputy Johnston had given him. Then, using a

computer in his cruiser, he entered the name Tommy Largo into a database and

ascertained that there was an outstanding warrant for the arrest of an individual

named Tommy Largo.

      Deputy Dennis pulled the Escalade over shortly after it exited the gas

station. Unbeknownst to Deputy Dennis, the vehicle had two occupants, neither

of whom was Tommy Largo. In fact, Mr. Jacquez was driving the Escalade, and a

woman named Veronica Gallegos occupied the passenger seat. Tommy Largo, the

registered owner of the vehicle, was an elderly man who had no outstanding

warrants for his arrest. The Tommy Largo for whom the warrant was issued was

considerably younger than the owner of the vehicle and had no association with

the vehicle or its occupants.

      After approaching the vehicle, Deputy Dennis asked Mr. Jacquez to

produce his driver’s license. Mr. Jacquez handed Deputy Dennis an identification

card, stating that he had a driver’s license but could not find it. Mr. Jacquez also

admitted that he did not own the vehicle; he reported that he had borrowed from

someone named “Mike” and had only been in possession of it for two hours. He

would not, or could not, inform Deputy Dennis of Mike’s last name. Three other

deputies soon joined Deputy Dennis. Once again using his cruiser’s computer,

Deputy Dennis learned that Mr. Jacquez’s driver’s license was suspended and that

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there were two warrants for his arrest. After verifying the existence of the

warrants, Deputy Dennis informed Mr. Jacquez that he was under arrest and

placed him in custody.

      After being placed under arrest, Mr. Jacquez was handcuffed and searched.

Pursuant to the San Juan County Sheriff’s written policy, Deputy Dennis ordered

the vehicle to be towed. Policy further required that the officers undertake an

inventory search of the vehicle prior to towing. In this case, the inventory search

revealed a fanny pack that contained two digital scales, some rolled up plastic

bags, 83.5 grams of methamphetamine, and documents bearing Mr. Jacquez’s

name. The officers also found a handgun beneath the driver’s seat. At that time,

the deputies placed Mr. Jacquez’s companion, Ms. Gallegos, under arrest. After

being detained at the Farmington Holding Facility, Mr. Jacquez and Ms. Gallegos

were released.

      On June 1, 2004, a United States Magistrate Judge authorized a federal

criminal complaint against Mr. Jacquez, based on Mr. Jacquez’s possession of

methamphetamine in April of that year. The next day, New Mexico State Police

officers arrested Mr. Jacquez at his sister’s home, where he had been residing.

Mr. Jacquez consented to a search of the home, where officers found several

guns, methamphetamine, plastic baggies, and scales.

      Following the search, a federal grand jury charged him with the following:

three counts of possession with intent to distribute five (5) grams or more of

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methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); one count

of possession of a firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1)(A); and one count of maintaining a place for

manufacture, distribution, and use of controlled substances, in violation of 21

U.S.C. § 856(a)(1) and (b). Mr. Jacquez and Ms. Gallegos filed a motion to

suppress the evidence found in the Escalade as well as all evidence directly or

indirectly derived from that search. In support of the motion, the defendants

argued that Deputy Dennis lacked reasonable suspicion to stop the vehicle. After

conducting an evidentiary hearing, the district court denied the motion. Mr.

Jacquez ultimately entered a conditional plea of guilty, reserving the right to

appeal the district court’s determination that the Deputy Dennis’s traffic stop did

not violate his Fourth Amendment right to be free from unreasonable seizures.

                                 II. DISCUSSION

      When reviewing a district court’s denial of a motion to suppress evidence

allegedly obtained in violation of the Fourth Amendment, “we accept the district

court’s factual findings unless [they are] clearly erroneous,” and we view the

evidence in the light most favorable to the government. United States v. Holt,

264 F.3d 1215, 1228 (10th Cir. 2001). We review the district court’s legal

conclusions de novo. Id. In this case, the relevant facts are undisputed. We need

only determine whether the district court reached the correct decision as a matter

of law.

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      Traffic stops are seizures under the Fourth Amendment, “even though the

purpose of the stop is limited and the resulting detention quite brief.” United

States v. Tibbetts, 396 F.3d 1132, 1136 (10th Cir. 2005) (internal quotation marks

omitted). We analyze traffic stops under the principles governing investigative

detentions, which the Supreme Court set forth in Terry v. Ohio, 392 U.S. 1

(1968). Id. Thus, a traffic stop is valid under the Fourth Amendment if the

officer had “a reasonable and articulable suspicion that the person seized [was]

engaged in criminal activity.” United States v. Davis, 94 F.3d 1465, 1468 (10th

Cir. 1996) (internal quotation marks omitted). We consider “the totality of the

circumstances . . . to see whether the detaining officer ha[d] a particularized and

objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534

U.S. 266, 273 (2002) (internal quotation mark omitted).

      Mr. Jacquez’s sole claim on appeal is his challenge to the legality of the

traffic stop that led to his arrest. He concedes that neither Deputy Dennis nor any

of the other officers who passed information along to him were aware that he was

in pursuit of the wrong Tommy Largo when he stopped the Escalade. Mr.

Jacquez contends, however, that Deputy Dennis’s suspicion was not reasonable

under the circumstances because “[o]fficers had the capability of obtaining further

information from the computers in their units” that would have clarified that the

owner of the Escalade was not the subject of an arrest warrant, but officers failed

to investigate further prior to stopping his vehicle. Aplt’s Br. at 9. The

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government argues that Deputy Dennis’s suspicion of Mr. Jacquez, although

mistaken in this critical respect, was reasonable when viewed in the totality of the

circumstances.

      In undertaking our review of the investigative detention at issue, we are

mindful that reasonable suspicion, which is required to support an investigative

detention, does not amount to probable cause, which is required for an arrest. See

United States v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996). Reasonable

suspicion “requires considerably less than proof of wrongdoing by a

preponderance of the evidence, but something more than an incohate and

unparticularized suspicion or hunch.” Shareef, 100 F.3d at 1505. We have

observed that “[a] mistaken premise can furnish grounds for a[n investigative

detention], if the officers do not know that it is mistaken and are reasonable in

acting upon it.” Id. (quoting United States v. Ornelas-Ledesma, 16 F.3d 714, 718

(7th Cir. 1994) judgment vacated on other grounds, 517 U.S. 690 (1996)). See

also Tibbetts, 396 F.3d at 1138 (“We have consistently held that an officer’s

mistake of fact, as distinguished from a mistake of law, may support . . .

reasonable suspicion necessary to justify a stop.”).

      We hold that Deputy Dennis acted reasonably given the information

available to him. As noted above, Mr. Jacquez has acknowledged that Deputy

Dennis did not know of his mistake when he initiated the stop. At the time he

stopped Mr. Jacquez’s vehicle, Deputy Dennis had little, if any, reason to suspect

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the person driving the car was anyone other than Tommy Largo, the subject of an

arrest warrant. Deputy Dennis was also aware that Tommy Largo’s vehicle may

have just come from a residence known to be associated with drug trafficking.

      Even if Mr. Jacquez is correct in asserting that officers could have, with

relative ease, done more to discover their mistake prior to the stop, he cannot

prevail here, as Deputy Dennis acted reasonably based on the information he had.

As the Supreme Court has explained, “what is generally demanded of the many

factual determinations that must regularly be made by agents of the government .

. . is not that they always be correct, but that they always be reasonable.” Illinois

v. Rodriguez, 497 U.S. 177, 185 (1990). Particularly when an officer is reacting

to a “swiftly developing situation,” we will not engage in “unrealistic second-

guessing,” Shareef, 100 F.3d at 1505 (quoting United States v. Sharpe, 470 U.S.

675, 685 (1985)).

      In Shareef, for example, we held that an investigative detention was

reasonable, even though it was based on a dispatcher’s erroneous conclusion that

there was a warrant for the individual’s arrest. 100 F.3d at 1505. The defendant

in that case, William D. Smith, was initially stopped for speeding but was

detained for an extended period of time because he was mistaken for Karlton

Wilbur Smith, who, in addition to a surname, shared a birthday with the defendant

and was wanted for weapons charges in another state. Id. at 1496-97. There, we

rejected the defendant’s argument that the officer “behaved unreasonably by

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failing to confirm the physical description of the suspect.” Id. at 1505. Similarly,

in United States v. Lang, we found a detention based on mistaken identity to be

reasonable, even though the officer was in possession of a physical description of

the suspect and the defendant and suspect did not have similar appearances. 81

F.3d 955, 966 (10th Cir. 1996). We held the officer’s actions to be reasonable,

notwithstanding his mistake, because he had only a limited opportunity to view

the defendant prior to the investigative detention. Id.

      In United States v. Tellez, the Fifth Circuit held that a mistaken detention

was nonetheless reasonable under circumstances similar to those before us. 11

F.3d 530 (5th Cir. 1993). In that case, an officer received information that a

parole violator, with whom the officer was familiar, was driving a “black 4 X 4

pickup truck with large tires and a chrome roll bar with attached lights.” Id. at

531. The description did not include a license plate number. Id. Some thirty

minutes later, the officer spotted a truck matching the description. The driver was

not the known parole violator, but there were also unidentified passengers in the

truck, and the officer could not see them. Id. As it turned out, the parole violator

was not in the truck, but Mr. Tellez, a convicted felon in possession of several

firearms, was. Id. In holding that the stop was nonetheless reasonable, the court

emphasized that “[t]he police need not have every identifying characteristic of a

wanted vehicle in make a valid Terry stop.” Id. at 532.

      In sum, suspicion need not be supported by completely accurate

                                         -9-
assumptions or a full investigation in order to amount to “something more than an

incohate and unparticularized suspicion or hunch.” Shareef, 100 F.3d at 1505.

Here, Deputy Dennis had more than a hunch when he stopped Mr. Jacquez. Even

if he could have done more to gather information, we are satisfied that he acted

reasonably under the circumstances.

                               III. CONCLUSION

      For the foregoing reasons, we AFFIRM the decision of the district court.




                                                   Entered for the Court,



                                                   Robert H. Henry
                                                   Chief Circuit Judge




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