                                                                               FILED
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              March 21, 2006
                                    TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 05-2146
 SAMUEL FLORES,                                       (D.C. No. CR-04-1657 JC)
                                                          (D. New Mexico)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, SEYMOUR, and BRISCOE, Circuit Judges.



       Defendant Samuel Flores entered a conditional plea of guilty to conspiring to

possess, as well as actually possessing, more than 100 kilograms of marijuana with the

intent to distribute, and was sentenced to concurrent terms of imprisonment of thirty

months. Flores now appeals, challenging the district court’s denial of his motion to

suppress his post-arrest statements. We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and affirm.



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
                                              I.

                                      Factual background

       On August 1, 2004, United States Border Patrol Agent Jeffrey King was on duty in

the so-called “bootheel area” of southwestern New Mexico. The bootheel area, according

to Agent King, is a desolate area with little traffic, other than that of local ranchers. A

single, two-lane highway, New Mexico State Highway 81, runs north from the Antelope

Wells Port of Entry, which is located at the United States/Mexico border, to the small

town of Hachita, New Mexico. Another two-lane highway, New Mexico State Highway

9, runs through Hachita. A driver heading in a northwesterly direction on Highway 9 out

of Hachita can take yet another two-lane highway, New Mexico State Highway 146,

north to Interstate 10, which runs west to Phoenix, Arizona, and east to El Paso, Texas.

According to Agent King, many people attempting to smuggle aliens and narcotics use

this route to get to Interstate 10.

       In the late afternoon hours on August 1, 2004, Agent King was driving west on a

county road that intersected with Highway 81. As he approached Highway 81, Agent

King observed two vehicles driving north on Highway 81. The first car was a Pontiac

Sunfire with Arizona license plates. The second car was a Chevrolet Malibu, also with

Arizona license plates. Agent King noticed that the back end of the Pontiac was “very

dirty,” ROA, Vol. IV at 6, leading him to “wonder[] where [it] had been.” Id. at 7. Agent

King pulled in behind the two vehicles and began driving north on Highway 81. As he

did so, he first called his El Paso office and requested a vehicle registration check, a


                                              -2-
stolen vehicle check, and a 72-hour lane check1 on the Chevrolet. All of those checks

came back negative. Agent King then passed the Chevrolet and pulled in behind the

Pontiac. Upon being passed, the Chevrolet sped up and maintained a close position

behind Agent King’s vehicle. Agent King called his El Paso office and requested a

vehicle registration check, a stolen vehicle check, and a 72-hour lane check on the

Pontiac. As with the Chevrolet, all of those checks came back negative. By the time the

checks came back, all three vehicles had arrived in Hachita and turned west on Highway

9. Based upon all the circumstances, Agent King decided to pull the Pontiac over and

perform an immigration check.

       When Agent King activated the emergency equipment on his vehicle, the Pontiac

turned on its turn signal and started slowing down. Before the Pontiac stopped, however,

the Chevrolet passed Agent King and pulled in between his vehicle and the Pontiac.

After staying in that position for approximately ten to twenty-five seconds, the Chevrolet

then passed the Pontiac. Both the Pontiac and the Chevrolet then stopped by the side of

the road. The driver of the Pontiac, Martha Montano, got out of the vehicle, as did the

two adult occupants of the Chevrolet, Michael Larez, who had been driving the

Chevrolet, and defendant Flores, who had been riding in the front passenger seat of the

Chevrolet. Larez and Flores began yelling at Montano “that they [Larez and Flores] had




       1
         According to Agent King, a 72-hour lane check indicates whether a vehicle
passed through an official border checkpoint within the past 72 hours.

                                            -3-
the babies in the back [of the Chevrolet] and the babies were fine.”2 Id. at 10. Agent

King instructed Larez and Flores to get back in the Chevrolet, which they did. Id.

       Agent King proceeded to perform an immigration check on Montano and her male

passenger. As Agent King was asking them about their citizenship, he observed, through

the rear driver’s side window of the Pontiac, a blanket in the back seat that appeared to be

covering something up. Agent King asked Montano if she would mind him taking a look

in the back of the car. Montano said she didn’t mind, and proceeded to yell to Larez and

Flores, “How do you open the back?” Id. at 11. Agent King told Montano that she didn’t

need to ask Larez and Flores how to open the trunk, because all he wanted to know was if

he could look in the back seat. Montano proceeded to open the back door of the Pontiac.

When she did so, Agent King observed the sides of burlap bundles underneath the

blanket. Agent King had seen similar bundles before, and believed them to contain

marijuana.

       Agent King instructed Montano to place her hands on top of the Pontiac, and

instructed the passenger to get out of the vehicle and put his hands on the hood. Although

Montano and the passenger initially complied, they both yelled at Larez and Flores “go,

go, go” in Spanish. Larez and Flores proceeded to speed away in the Chevrolet. Agent

King advised Montano and her passenger that they were under arrest for transporting

marijuana. As Agent King was reading Montano and her passenger their Miranda rights,



       Two young children were ultimately determined to be riding in the back seat of
       2

the Chevrolet.

                                            -4-
the passenger began to get back inside the Pontiac. Although Agent King instructed him

to stop and place his hands back on the car, the passenger ignored Agent King. After the

passenger sat down in the passenger seat of the Pontiac, Montano sat down in the driver’s

seat of the Pontiac and attempted to close the door. Agent King placed his hands on the

inside of the driver’s side door, preventing Montano from closing it. The passenger

began yelling at Montano to shut the door and start the car. Concerned for his own

safety, Agent King removed his hands from the driver’s side door. Montano proceeded to

shut the door and then drove off, heading west on Highway 9. Agent King called his

supervisor and informed him of what had occurred, and then got in his car and followed

after the Pontiac.

       Approximately four or five miles west of where the initial stop had occurred,

Agent King observed the Pontiac by the side of the road. Agent King also observed

Montano and her passenger running away from the Pontiac in a northerly direction

through the desert. Agent King stayed with the Pontiac until another agent arrived, and

then he chased after Montano and her passenger on foot. Both Montano and her

passenger were eventually caught. The Pontiac was seized and twelve bundles of

marijuana weighing 241.6 pounds were found inside it.

       Patrick Green, a deputy with the Hidalgo County Sheriff’s Department, was on

duty that afternoon and heard, over his radio, a call for assistance from a Border Patrol

unit. On Highway 9, Green observed the Chevrolet that had been described in the call for

assistance. Green clocked the Chevrolet driving 78 miles per hour in a 55 miles per hour


                                             -5-
zone. Green proceeded to stop the Chevrolet. Green wrote Larez two tickets, one for

speeding and another for having no driver’s license. Green proceeded to detain both

Larez and Flores due to their connection with the Pontiac. Larez and Flores were

subsequently placed under arrest. Flores agreed to waive his Miranda rights and speak

with Border Patrol agents (as did Montano). Flores told Border Patrol agents that “Larez

. . . made . . . arrangements” for the group to “meet an unidentified man at a gas station”

in Columbus, New Mexico, and that from there “the man . . . t[ook] them to a location

south of Hachita . . . .” Id. at 47-48. There, Flores indicated, the unidentified man took

Montano into the desert, loaded up the bundles of marijuana into her car, and then walked

off into the desert. Montano then drove the Pontiac back to Highway 81, met up with

Larez and Flores in the Chevrolet, and the group proceeded to drive northward on

Highway 81.

                                  Procedural background

       On August 19, 2004, a federal grand jury returned a two-count indictment against

Flores, Montano, and Larez. Count 1 of the indictment charged these three defendants

with conspiring to possess with intent to distribute 100 kilograms and more of marijuana,

in violation of 21 U.S.C. § 846. Count 2 of the indictment charged the three defendants

with possessing with the intent to distribute 100 kilograms and more of marijuana, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

       Flores moved to suppress “any statements and physical evidence seized as a result

of [his] illegal detention and arrest on August 1, 2004.” ROA, Vol. I, Doc. 21 at 1. In


                                             -6-
support of his motion, Flores argued that, “[p]rior to initiating the emergency equipment,

[Agent King] did not have sufficient facts to support a reasonable suspicion that the

vehicles were involved in illegal activity.” Id. at 3. In other words, Flores argued that

“he was illegally stopped on Highway 81 by [Agent King].” Id. at 6. The district court

conducted an evidentiary hearing on Flores’ motion to suppress on December 2, 2004.

During the hearing, Flores’ counsel admitted that Flores, who was a passenger in the

Chevrolet, lacked a “possessory interest[]” in the Pontiac, and thus noted he was seeking

simply to suppress Flores’ statements. ROA, Vol. IV at 53. At the conclusion of the

hearing, the district court denied Flores’ motion.

       Following the denial of his motion to suppress, Flores entered into a plea

agreement with the government. Under the terms of that agreement, Flores agreed to

waive his rights and plead guilty to the two counts contained in the indictment. However,

Flores specifically reserved the right to appeal the district court’s denial of his motion to

suppress. On May 3, 2005, the district court sentenced Flores to a thirty-month term of

imprisonment on each count, with the terms of imprisonment to run concurrently.

                                              II.

       On appeal, Flores challenges the district court’s denial of his motion to suppress.

“When reviewing a district court’s denial of a motion to suppress, we view the evidence

in the light most favorable to the government, accepting the district court’s factual

findings unless clearly erroneous.” United States v. Gregoire, 425 F.3d 872, 875 (10th

Cir. 2005). “Fourth amendment reasonableness is reviewed de novo.” Id.


                                              -7-
       Flores argues that Agent King lacked reasonable suspicion to stop either the

Chevrolet or the Pontiac. As noted by the government, however, there are two critical

flaws in Flores’ appeal. First, it is clear that he lacks standing to challenge Agent King’s

stop of the Pontiac. Not only is the record devoid of any evidence indicating that Flores

had a possessory or property interest in the Pontiac, Flores’ counsel admitted as much

during the hearing on the motion to suppress. Second, the district court did not find, nor

does the evidence presented during the suppression hearing support a finding, that Agent

King stopped the Chevrolet in which Flores was a passenger. Indeed, the evidence

establishes that Agent King stopped only the Pontiac, and that Larez voluntarily stopped

the Chevrolet after the Pontiac was stopped. Thus, as noted by Agent King at the

evidentiary hearing, Larez and Flores were free to leave up until the time that Agent

King observed the marijuana bundles in the back seat of the Pontiac.

       Flores does not appear to be challenging the validity of Deputy Green’s later stop

of the Chevrolet, nor does the record support any such challenge. It is clear that Deputy

Green had two valid reasons for stopping the Chevrolet. First, the record indicates that

Deputy Green, having clocked the Chevrolet driving 78 miles per hour in a 55 miles per

hour zone, had reasonable suspicion that the driver of the Chevrolet violated applicable

traffic regulations. See United States v. Alvarado, 430 F.3d 1305, 1308 (10th Cir. 2005)

(discussing reasonableness of the initial stop of a vehicle). Second, and more

importantly, it is clear that Deputy Green, based upon the information relayed to him over

the radio, had probable cause to believe that the occupants of the Chevrolet were involved


                                             -8-
in marijuana trafficking in connection with the occupants of the Pontiac that had been

stopped by Agent King, and that the occupants of the Chevrolet were attempting to evade

arrest.

          Finally, to the extent Flores is challenging his seizure and arrest by Deputy Green,

the record fully supports the validity of those actions. For the reasons already discussed,

we conclude it was reasonable for Deputy Green to not only stop the Chevrolet, but to

seize it and its occupants. See Delaware v. Prouse, 440 U.S. 648, 654-55 & n.10 (1979).

          AFFIRMED.

                                                     Entered for the Court


                                                     Mary Beck Briscoe
                                                     Circuit Judge




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