                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 28, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                       No. 10-5085
 v.                                                    (N.D. Oklahoma)
 MIGUEL ANGEL JUAREZ,                          (D.C. No. 4:10-CR-00005-JHP-2)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before ANDERSON, TACHA, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Miguel Angel Juarez pled guilty to three counts:

conspiracy, in violation of 21 U.S.C. § 846; possession of marijuana with the

intent to distribute, in violation of 21 U.S.C. § 841(a)(1), as well as aiding and


      *
        This order and judgment is not binding precedent except under the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.
abetting, in violation of 18 U.S.C. § 2(a); and possession of methamphetamine

with the intent to distribute, in violation of 21 U.S.C. §841(a)(1) and

(b)(1)(A)(viii). Mr. Juarez was sentenced to 120 months on each count, to be

served concurrently. He reserved, however, the right to appeal the previous

denial of his motion to suppress evidence obtained following the stop of the van

he was driving. On appeal, Mr. Juarez appeals only the denial of his motion to

suppress, which we affirm.



                                   BACKGROUND

      On December 15, 2009, a confidential informant known to Tulsa County

Deputy Sheriff Lance Ramsey, told Deputy Ramsey that an Hispanic male, whose

name was unknown, was engaged in the selling and storing of marijuana and

methamphetamine. This informant had previously provided information to Tulsa

County authorities which had been accurate and had led to the arrest of three

individuals.

      The informant told Deputy Ramsey that he/she 1 had been to an apartment at

8304 South 77th East Avenue in Tulsa, where he/she had seen large quantities of

methamphetamine and marijuana the night before. The confidential informant

stated that the unknown Hispanic male had received a 500-pound shipment of

marijuana the previous evening, which was not yet cut but remained in large

      1
          The identity and gender of the informant has not been disclosed.

                                          -2-
quantities. The informant also stated that the marijuana would be transported in a

white van to a location where the marijuana would be cut. The informant further

noted that, in addition to the white van, the Hispanic male also at times drove a

blue GMC pickup with “nice wheels.”

      Based on the information provided by the confidential informant, the Tulsa

County Drug Task Force established surveillance at the apartment complex to

observe the apartment and white van identified by the informant. The task force

believed that the marijuana was in the white van, which was parked in the

apartment parking lot for the entire time of the task force’s surveillance.

      Deputy Ramsey met with the confidential informant at a location near the

apartment complex. The informant pointed to a blue pickup truck which

happened to be driving by and identified the blue truck as being driven by the

Hispanic man involved in the drug transactions.

      The blue pickup truck identified by the informant arrived at the apartment

complex at approximately 11:00 a.m. The surveillance team observed an

Hispanic male get out of the blue truck and go into the previously identified

apartment. Within a few minutes, two Hispanic males exited the apartment and

got into the blue pickup truck. Police personnel followed the blue pickup truck to

a shopping area where a Home Depot and a Staples store were located. The

government believes that the two men went into these stores. The blue pickup

truck returned to the apartment at about 1:15 p.m. One of the Hispanic men

                                         -3-
placed a large plastic bag in the white van. Furthermore, the men moved flattened

boxes from a maroon van in the parking lot and placed them in the white van. As

predicted by the confidential informant, the Hispanic men subsequently left the

apartment complex with one of them driving the white van and the other driving

the blue pickup truck. The blue truck was following behind the white van.

         Members of the surveillance team then determined to follow the two

vehicles to obtain more information, but they were concerned about losing the

vehicles in the heavy traffic and nearby road construction. Accordingly, they

decided to stop the white van which they believed was transporting a large

quantity of marijuana, before it was able to elude them in traffic. In accordance

with that decision, Captain Thomas Huckeby pulled out into traffic behind the

blue pickup, which was, in turn, following the white van. He activated his lights

and siren. Captain Huckeby passed the blue pickup and pulled over the white

van. 2




         2
       The government alleges that the blue pickup, driven by Mr. Juarez’s co-
defendant Juan Gonzalez-Guytan, failed to pull over promptly when Captain
Huckeby activated his lights and siren behind Mr. Gonzalez-Guytan’s vehicle
(the blue pickup) which was, in turn, following the white van. Accordingly,
another officer followed Mr. Gonzalez-Guytan and pulled him over for failing to
heed an emergency vehicle. Since Mr. Gonzalez-Guytan is not a party to this
appeal, we do not address any issue relating to the stop of Mr. Gonzalez-Guytan.
We do note, however, that it appeared to the police that the blue truck was
blocking the van from their following police vehicles, which only contributed to
the police officers’ suspicions concerning the white van.

                                         -4-
      Defendant Juarez was driving the white van. Captain Huckeby pulled out

his revolver and ordered Mr. Juarez out of the van. The captain explained his

decision to do this in the suppression hearing: “[W]hen I first pulled the vehicle

over with the understanding that there was 600 pounds of marijuana in there, I

opened my vehicle, got out, and noticed the driver making some movements that

concerned me. So I pulled my weapon and approached the vehicle asking the

driver for his hands.” Tr. of Supp. Hr’g at 88, R. Vol. 2. The officer further

testified that, when Mr. Juarez opened the door of the van, the officer “first

noticed the strong odor that I know to be marijuana. And then, . . . he was doing

something under the seat or to the side of the seat. I noticed . . . what I believed

at the time to be scales and plastic containers, baggies, things like that. I even

believe I saw a plastic tubing, if I remember right.” Id. at 89.

      Mr. Juarez exited the van and was handcuffed. A drug-seeking dog was

summoned to the scene and the dog alerted to the van. Authorities then searched

the van and found approximately 500 pounds of marijuana in black bags, as well

as freezer bags and scales. Mr. Juarez was arrested and made incriminating

statements, after being read his Miranda rights in Spanish.

      Police authorities subsequently obtained a search warrant for Mr. Juarez’s

apartment, where they found methamphetamine and a large amount of cash.

Mr. Juarez moved to suppress the evidence seized from the van he was driving, as

well as the evidence recovered from his apartment and his post-arrest statements,

                                          -5-
on the ground that the initial stop of his van was illegal. The magistrate judge to

whom the matter was referred held an evidentiary hearing and recommended

denial of Mr. Juarez’s motion. The district court adopted the magistrate judge’s

report and recommendation and denied the motion. This appeal followed.



                                   DISCUSSION

      “In reviewing the denial of a motion to suppress, we review the factual

findings of the district court for clear error, viewing the evidence in the light most

favorable to the government, and review de novo the reasonableness of the

government’s actions under the Fourth Amendment.” United States v. Fox, 600

F.3d 1253, 1257 (10th Cir. 2010) (citation and quotation marks omitted).

      Mr. Juarez first challenges the stop of the van he was driving. He claims

the “stop of the van was effectuated because the officers involved were afraid the

contraband might get away from them in the traffic and not for a reason that

would furnish justification for the stop or investigative detention or probable

cause for an arrest.” Appellant’s Br. at 9. He further asserts that “[a]ny and all

evidence, statements and other items seized from Mr. Juarez are tainted and are

‘fruits of the poisonous tree’ and must also be suppressed.” Id. at 9-10. 3

      3
        In his objections to the report and recommendation of the magistrate judge,
Mr. Juarez asserted that “[t]he initial stop of the defendant was based upon mere
suspicion, hunches, and panic initiated by the fear of law enforcement officers
that they would lose what they believed to be a load of drugs in the white van
                                                                       (continued...)

                                         -6-
      The government responds that the officers had probable cause to stop the

van based on the information provided to them by the reliable informant as well

as the information they themselves gleaned from their surveillance. Mr. Juarez

does not specifically challenge the reliability of the informant, except to

challenge his motivation for providing information. 4 We have held that “[w]hen

there is sufficient independent corroboration of an informant’s information, there

is no need to establish the veracity of the informant.” United States v. Artez, 389

F.3d 1106, 1111 (10th Cir. 2004) (further quotation omitted). There was

obviously sufficient independent corroboration here. At a minimum, the

government argues, the officers had reasonable suspicion for an investigative

detention, and Captain Huckeby’s smell of marijuana and the dog’s alert to the

van provided ample probable cause to search the van and arrest Mr. Juarez.

      We agree with the government that the officers had, at a minimum,

sufficient information for an investigatory stop of the van. As we have stated on

      3
        (...continued)
driven by defendant.” Defendant’s Objections to R. & R. at 8, R. Vol. 1 at 75.
Contrary to Mr. Juarez’s arguments, however, we conclude that the concern that
the van might get away in heavy traffic actually cuts in favor of the officers’
actions in this case. The van’s very mobility undermines Mr. Juarez’s argument
that the officers here should have obtained a warrant prior to stopping his van.
      4
        Mr. Juarez alleges that the informant was paid by the Tulsa County
Sheriff’s Drug Task Force, that he/she had “legal problems,” and was in some
way “assisted by” one of the officers involved in Mr. Juarez’s arrest. Appellant’s
Br. at 8. This simply suggests the motivation for the informant’s information; it
does not undermine the accuracy of that information, as the police officers
observed from their own surveillance.

                                         -7-
numerous occasions, “[t]he Fourth Amendment protects individuals from

unreasonable searches and seizures.” United States v. Simpson, 609 F.3d 1140,

1146 (10th Cir. 2010). One type of seizure is “an investigatory stop, which is

reasonable only if ‘justified by some objective manifestation that the person

stopped is, or is about to be, engaged in criminal activity.’” Id. (quoting United

States v. Cortez, 449 U.S. 411, 417 (1981)). While an arrest requires probable

cause, an investigatory detention is constitutional if supported by the lesser

standard of reasonable suspicion: “the officer must have reasonable suspicion to

believe that criminal activity may be afoot.” Id. (further quotation omitted).

      Furthermore, “the existence of objectively reasonable suspicion of illegal

activity ‘does not depend upon any one factor, but on the totality of the

circumstances.’” Id. (quoting United States v. Soto, 988 F.2d 1548, 1555 (10th

Cir. 1993). We also must accord deference to an officer’s experience and

increased ability to distinguish between innocent and suspicious actions. Thus,

“[t]he evaluation is made from the perspective of the reasonable officer, not the

reasonable person.” United States v. Guerrero, 472 F.3d 784, 787 (10th Cir.

2007) (internal quotation marks omitted).

      In this case, at the time the officers stopped Mr. Juarez’s van, they had

information from a reliable informant, which information had been corroborated

by the officers’ observations while conducting surveillance of Mr. Juarez and his

co-defendant. They had seen both vehicles identified by the informant, at the

                                         -8-
location identified by the informant. The officers witnessed suspicious behavior

at the apartment, followed by the departure of the two vehicles, driving in

tandem, again as predicted by the informant. When the police determined to pull

over the van, the blue pickup appeared to be acting as a blocking vehicle for a

distance; when the van finally stopped, Officer Huckeby observed furtive

behavior by Mr. Juarez, and detected a strong smell of marijuana. These

developments only enhanced the officers’ reasonable suspicion, based on the

informant’s information, that criminal conduct was afoot and that the van should

be stopped. Further, “a positive dog alert gives officers probable cause to

search.” United States v. Parada, 577 F.3d 1275, 1281 (10th Cir. 2009). All of

those circumstances justified the arrest of Mr. Juarez.

      Finally, the search warrant for Mr. Juarez’s apartment was based upon the

informant’s information, the surveillance, and the search of the white van, which

yielded a large quantity of marijuana and drug paraphernalia. 5




      5
       Mr. Juarez also makes a brief argument that the use of a drawn weapon
and handcuffs when arresting him and taking him out of the van was unjustified
under the circumstances. We agree with the government that it was justified. We
have already concluded that the police had probable cause to arrest Mr. Juarez
once his van had been stopped, its contents identified, and his conduct during the
stop had been determined, by an experienced officer, to be suspicious and
possibly dangerous.

                                         -9-
                                   CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s denial of

Mr. Juarez’s motion to suppress.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




                                      -10-
