FILED

United States Court of Appeals

Tenth Circuit

December 23, 2008

Elisabeth A. Shumaker
Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 07-2214

JOSE CRUZ RODRIGUEZRODRIGUEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the District of New Mexico
(D.C. No. 06-CR-00537-JB)

Thomas L. Wright, El Paso, Texas, for the Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (Gregory J. Fouratt, United
States Attorney and Gregory B. Wormuth, Assistant United States Attorney, with
her on the brief), Office of the United States Attorney, Las Cruces, New Mexico,
for the Plaintiff-Appellee.

Before TACHA, LUCERO, and OBRIEN, Circuit Judges.

LUCERO, Circuit Judge.

This case requires us to apply United States v. Zamudio-Carrillo, 499 F.3d

1206, 1209 (10th Cir. 2007), and United States v. Valenzuela, 365 F.3d 892, 898

(10th Cir. 2004), to determine whether there was sufficient evidence of tandem
driving such that probable cause to arrest the driver of one vehicle established
probable cause to arrest the driver of a second vehicle. The issue arose when
defendant Jose Cruz Rodriguez-Rodriguez (Rodriguez) was observed by a Santa
Clara Police Officer as he drove his red Nissan just ahead of a brown pickup truck
along a lightly traveled New Mexico highway. Upon stopping the brown pickup
truck, the officer discovered that it was carrying a substantial amount of
marijuana. He then radioed County Sheriffs Deputies and requested an
interception of Rodriguezs car. The call resulted in Rodriguez being taken into
custody, whereupon he admitted to working in conjunction with the driver of the
brown truck in the transport of marijuana. Rodriguez was charged, a motion to
suppress was denied, and he was convicted by a jury of one count of possession
with intent to distribute 100 kilograms or more of marijuana under 21 U.S.C.
841(b)(1)(B) and one count of conspiracy to commit the same under 846.
On direct appeal, Rodriguez argues that his traffic stop violated the Fourth
Amendment because it was not supported by reasonable suspicion. 1 He also
argues that his investigative detention amounted to an illegal arrest because it
exceeded the scope of any arguably permissible stop, and officers lacked probable

Although Rodriguez does not explicitly argue a violation of the

Fourteenth Amendment, the Fourth Amendment applies against state law
enforcement officials as incorporated through the Due Process Clause of the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
-2-

cause to believe he had violated the law. We disagree with both of these
contentions. On our review of the record, law enforcement had probable cause to
support both a traffic stop and an arrest.
We hold that the officer who stopped the brown pickup had a sufficient
basis to conclude that Rodriguez and the driver of the pickup were traveling
together. Accordingly, when the officer discovered that the truck was carrying
marijuana, probable cause to arrest Rodriguez arose. Thus, the initial stop was
permissible and Rodriguezs constitutional rights were not violated even if his
detention were an arrest. For these reasons, we affirm the denial of Rodriguezs
motion to suppress and uphold the conviction.
I
We amplify the foregoing summary of the facts in order to establish the
context of the defendants claims. At a hearing on the defendants motion to
suppress, Santa Clara Police Officer Michael Marquez testified that, around 4:30
a.m., he saw a brown Dodge pickup truck driving two car lengths behind a red
Nissan Sentra. As officers later learned, Rodriguez was driving the red Nissan,
and his codefendant, Hiram Gallardo-De La Cruz (Gallardo), was driving the
brown pickup. Both vehicles had California license plates and were traveling five
miles per hour below the speed limit. Officer Marquez observed that the brown
pickup truck was canted toward the rear, and chose to follow the two vehicles. All
three vehicles were traveling in the right lane, but, according to Officer Marquez,
-3-

Rodriguez repeatedly veered into the left lane, t[ook] a look at Marquezs
vehicle, then returned to the right lane. Marquez saw that the brown pickup truck
lacked a light above its license plate, in violation of New Mexico state law. See
N.M. Stat. Ann. 66-3-805(c). At this point, he proceeded to stop the truck.
When he did so, Officer Marquez testified, he saw Rodriguezs car sit down,
indicating that the driver was accelerating swiftly. Gallardo delayed in stopping,
affording the Nissan adequate opportunity to continue out of sight. By radio,
Marquez promptly requested a stop of the red vehicle for a welfare check.
When Officer Marquez requested a drivers license and registration,
Gallardo refused to identify himself or to provide a license. As they spoke,
Marquez noticed an odor of fresh marijuana and saw a bundle inside the cab of the
truck on the rear seat. Marquez obtained consent to search the bed of the truck
and saw approximately ten more bundles matching the one in the cab. While
Officer Marquez called the Grant County Sheriffs Department for backup,
Gallardo escaped on foot.
Grant County Sheriffs Deputy Adam Arellano responded to Officer
Marquezs call for assistance. Marquez told him that a red vehicle with tinted
windows and a California license plate had been driving erratically and traveling
with the brown pickup. Arellano issued what became the second alert to locate
and stop the red vehicle, using a police code for suspected narcotics trafficking.
Shortly thereafter, Sheriffs Deputy Anthony Bencomo responded to Arellanos
-4-

alert and notified Arellano that he stopped the red Nissan approximately six miles
from where Marquez had stopped the brown pickup.
Deputy Arellano immediately drove to the scene of the Nissans stop.
Upon arrival, he obtained Rodriguezs permission to search the vehicle. Arellano
handcuffed Rodriguez, notified him that he was not under arrest, and placed him in
the rear of Bencomos patrol vehicle while he searched Rodriguezs car. The
search yielded no evidence of contraband, but there was evidence discovered
linking Rodriguez to the driver of the brown truck. Rodriguez later admitted that
he and Gallardo were working together to transport marijuana to California.
Before trial, Rodriguez moved to suppress all evidence obtained as a result
of his stop, evidence which he alleged was unsupported by reasonable suspicion
or, alternately, was beyond the scope of any such suspicion. The district court
denied this motion and found the stop to be supported by reasonable suspicion and
reasonable in scope. Rodriguez proceeded to trial and was convicted by a jury of
both counts charged. He now appeals.
II
A
Rodriguez argues that the district court erred in denying his suppression
motion because all evidence obtained against him resulted from a traffic stop that
lacked reasonable suspicion at its outset, in violation of the Fourth Amendment.
In reviewing a denial of a motion to suppress, we view the evidence in the light
-5-

most favorable to the government, accepting the district courts factual findings
unless clearly erroneous. United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir.
2004); United States v. Bustillos-Munoz, 235 F.3d 505, 511 (10th Cir. 2000). We
review the ultimate Fourth Amendment determination de novo. Katoa, 379 F.3d at
1205; Bustillos-Munoz, 235 F.3d at 511.
The Fourth Amendment protects [t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures. U.S. Const. amend. IV. It is well established that an automobile stop
constitutes a seizure for purposes of the Fourth Amendment, Delaware v. Prouse,
440 U.S. 648, 653 (1979); Whren v. United States, 517 U.S. 806, 809-10 (1996);
United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998), and that a
routine traffic stop is more analogous to an investigative detention than to a
custodial arrest, Hunnicutt, 135 F.3d at 1348. Although probable cause is not
necessary to support an investigative detention, it is sufficient. United States v.
Callarman, 273 F.3d 1284, 1287 (10th Cir. 2001).
Rodriguez also challenges the scope of his traffic stop, claiming that it
became an arrest when he was handcuffed and placed in Deputy Bencomos
vehicle. 2 As a matter of law, Rodriguez is correct that [i]f a police-citizen

We disagree with the government that Rodriguez waived this argument by

failing to raise it below as part of his motion to suppress. To the contrary,
Rodriguez challenged the scope of the traffic stop in his suppression motion and
thus preserved the illegal arrest issue.
-6-

encounter exceeds the limits of a Terry stop, the detention becomes an arrest that
must be supported by probable cause. United States v. Neff, 300 F.3d 1217, 1220
(10th Cir. 2002); United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993)
(citing United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975)). An
officer has probable cause to arrest if, under the totality of the circumstances, he
learned of facts and circumstances through reasonably trustworthy information that
would lead a reasonable person to believe that an offense has been or is being
committed by the person arrested. United States v. Muoz-Nava, 524 F.3d 1137,
1144 (10th Cir. 2008) (quotation omitted). Probable cause to arrest does not
require facts sufficient to establish guilt, but does require more than mere
suspicion. Id. (quotation omitted).
We need not determine whether Rodriguezs investigative detention
amounted to an arrest if probable cause existed, because in such circumstances, an
arrest would not violate the Fourth Amendment. 3 See, e.g., Latta v. Keryte, 118
F.3d 693, 700 (10th Cir. 1997); see also United States v. Watson, 423 U.S. 411,
417 (1976) (holding that probable cause is sufficient for a public arrest to satisfy
the Fourth Amendment). Thus, because the existence of probable cause would

Although the government has not argued on appeal that law enforcement
officials had probable cause to arrest Rodriguez, [t]his court is not limited to the
particular legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction of governing
law. United States v. Lott, 310 F.3d 1231, 1242 n.7 (10th Cir. 2002) (quotation
omitted).
-7-

resolve both issues in this appeal, we consider whether Rodriguezs stop and
detention was supported by probable cause. 4
B
When law enforcement officials rely on a bulletin or alert to conduct a stop
or make an arrest, the relevant inquiry is whether the officer who issued the
alertrather than the officer who conducted the challenged actionhad the
requisite level of suspicion. United States v. Hensley, 469 U.S. 221, 233 (1985);
United States v. Gonzales, 897 F.2d 504, 506 (10th Cir. 1990). In the ordinary
case involving reliance on an alert issued by an officer with firsthand knowledge,
the court analyzes whether the issuing officer had reasonable suspicion to support
a stop or probable cause to support an arrest. See, e.g., Gonzales, 897 F.2d at 50506. Here, however, as described above, the officer who observed the facts
supporting probable cause did not himself issue the alert. Officer Marquez
observed the vehicles driving together and discovered the marijuana in the brown
pickup truck. Marquez then told Arellano that he had seen a red four-door vehicle
with a California license plate and tinted windows driving erratically that Marquez
concluded was traveling in tandem with the brown pickup. After learning this

The district court denied Rodriguezs motion to suppress because it found

that Rodriguezs detention was reasonably related in scope to the circumstances
justifying the initial traffic stop. Yet, we need not resolve the case on that basis
and may affirm the district courts ruling on alternative grounds. Lott, 310 F.3d
at 1242 n.7 (quotation omitted).
-8-

information, Arellano issued the attempt to locate alert upon which Deputy
Bencomo relied in stopping Rodriguez.
This minor factual variation need not alter our analysis. In Hensley, the
Supreme Court reasoned that officers must be permitted to promptly rely on their
colleagues from other law enforcement agencies without resorting to crossexamination to apprehend increasingly mobile suspects. 469 U.S. at 231. By the
same reasoning, the fact that Arellano rather than Marquez actually sent the alert
is immaterial. See id. (holding that the legality of an arrest relying on a flyer
turns on whether the officers who issued the flyer possessed probable cause to
make the arrest (emphasis added)); United States v. Chavez, 534 F.3d 1338,
1347-48 & n.13 (10th Cir. 2008) (officers may rely on others instructions so long
as there is some communication between the officer or officers with probable
cause and the officer who executes the stop, sufficient to confirm[] that the
officers are functioning as a team). Thus, we need only inquire whether Officer
Marquez had probable cause to believe that Rodriguez was committing a crime. 5
Sufficient evidence that two vehicles are driving in tandem plus evidence
that one vehicle contains contraband can provide probable cause sufficient to

We note that this case does not involve a horizontal collective

knowledge relationship in which the knowledge of several officers must be
aggregated to create probable cause. Rather, it is a case of two vertical
collective knowledge relationships in which the first officers conclusion was
conveyed twice to reach the officer who conducted the stop. See Chavez, 534
F.3d at 1345.
-9-

support arresting the driver of the other vehicle. Compare Zamudio-Carrillo, 499
F.3d at 1209 (holding that sufficient evidence of tandem driving and the discovery
of a false compartment in one vehicle created probable cause to arrest the driver of
the second), with Valenzuela, 365 F.3d at 898 (holding that insufficient evidence
of tandem driving combined with discovery of drugs in one vehicle did not provide
probable cause to arrest the driver of the second). The question, then, is whether
the evidence of tandem driving in this case was strong enough that the discovery
of marijuana in the truck created probable cause to conclude that Rodriguez, the
driver of the car, had committed a crime.
In making this determination, we consider first Zamudio-Carrillo, a case in
which two vehicles with consecutively numbered Arizona specialty license plates
drove a quarter mile apart along a Kansas interstate highway. 499 F.3d at 1207.
A Highway Patrol Trooper observed that one vehicle likely contained a false floor
compartment. Id. at 1207-08. Combining that observation with the troopers
reasonable conclusion that the vehicles were driving in tandem, id. at 1210,
probable cause existed to conclude that the driver of the second vehicle was
involved in illegal activity, id. at 1209-10.
We consider also Valenzuela, a case in which two vehicles traveled some
distance apart on a crowded highway. 365 F.3d at 898. Both vehicles had Arizona
license plates, but they were not consecutively numbered as in Zamudio-Carrillo,
and the vehicles never came closer than a quarter mile apart while traveling along
- 10 -

a congested interstate. Id. In that case we noted that it was [h]ardly unusual for
two vehicles with Arizona license plates to travel on an interstate highway toward
Arizona. Id. Therefore, we held that there was insufficient objective evidence of
tandem driving to allow the discovery of marijuana in one vehicle to establish
probable cause to arrest the driver of the other. Id. at 901.
Although no single fact in the present case is as compelling as the sequential
specialty plates in Zamudio-Carrillo, there is nonetheless considerable objective
evidence that the brown pickup and red Nissan were driving in tandem. Officer
Marquez testified that the two vehicles traveled a mere two car lengths apart on a
highway in very light traffic during the predawn hours of the morning, and as they
did so, Rodriguez repeatedly swerved to better observe Officer Marquezs vehicle
as it traveled behind the truck. Moreover, Rodriguez abruptly sped off when
Marquez stopped the pickup, and the pickup seemingly waited for Rodriguezs
vehicle to elude Marquezs range of vision before pulling over. The facts
supporting probable cause in this case are unquestionably stronger than the facts
this court deemed insufficient in Valenzuela in which two vehicles traveled some
distance apart on a crowded highway. 365 F.3d at 989.
Although this is a highly factual inquiry and all facts present are necessary
to our conclusion, Marquez had sufficient evidence to conclude that Rodriguez and
Gallardo were traveling in tandem. Unlike in Zamudio-Carrillo, when Deputy
Arellano issued the alert that led to Rodriguez being stopped, he and Officer
- 11 -

Marquez already knew that the pickup truck contained a large quantity of
marijuana; thus, they unquestionably had probable cause to believe that Gallardo
had committed a crime. Accordingly, we hold that the evidence of tandem driving
in the present case created probable cause that Rodriguez was committing a crime
as well. 6 This probable cause was sufficient to support his traffic stop and any
subsequent arrest.
III
AFFIRMED.

Because we hold that Officer Marquez had probable cause to stop

Rodriguezs car based on narcotics trafficking, upon which Deputies Arellano and
Bencomo relied, we need not consider the district courts determination that
Rodriguezs erratic driving independently created reasonable suspicion supporting
a stop.
- 12 -