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United States v. Nicholson

United States Court of Appeals, Tenth Circuit

July 12, 2013

JESSE W. NICHOLSON, Defendant-Appellant.

Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:10-CR-03163-RB-1)

Gregory J. Garvey, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Las Cruces, New Mexico, for Defendant-Appellant.

Jessica Cárdenas Jarvis, Assistant United States Attorney, (Kenneth J. Gonzales, United States Attorney, and John Grasty Crews, Assistant United States Attorney, on the brief), Office of the United States Attorney, District of New Mexico, Las Cruces, New Mexico, for Plaintiff-Appellee.

Before BRISCOE, Chief Judge, McKAY and GORSUCH, Circuit Judges.

BRISCOE, Chief Judge.

Defendant Jesse W. Nicholson appeals the district court's denial of his motion to suppress evidence. He appeals after entering a conditional guilty plea to three drug and weapons-related charges. We reverse the district court's ruling on the motion to suppress and remand with directions to vacate Nicholson's convictions.


Midday June 17, 2010, defendant Jesse Nicholson stopped at a red light at the busy intersection of 19th Street and Main Street in Roswell, New Mexico. Nicholson was in a left-turn lane, planning to turn from eastbound 19th Street and enter northbound Main Street. Roswell Police Department Officer Doyle Baker was in his vehicle behind Nicholson. Main Street has multiple lanes in each direction.

When the traffic light changed to permit a left turn, Nicholson made a left turn into Main Street's outermost (i.e. right, northbound) lane. He did so, he says, to reach a business near the intersection. He proceeded in this fashion so he would not impede traffic when he made a quick shift into the right lane to enter the parking lot. The intersection had no markings or instructions to indicate that a driver must maintain and complete a turn by remaining in the left lane.

But according to Officer Baker, Nicholson was insufficiently cautious in making his left turn. Baker testified that by Nicholson's completing his turn in the right lane he cut off cars making right-hand turns on a red light from westbound 19th Street onto Main Street's outermost, northbound lane.[1] Baker stopped Nicholson, believing Nicholson's failure to enter the left lane when completing his left turn violated Roswell ordinance 12-6-5.1. Smelling marijuana as he approached the vehicle, Baker asked Nicholson to step out of the car. As Nicholson complied with this request, Baker spotted two glass pipes-commonly used for smoking methamphetamine-and a police scanner in the driver's door pocket. Baker asked for consent to search the vehicle; Nicholson refused. Officer Baker released Nicholson after issuing a traffic citation, but seized the car.

Police towed the car and also sought a search warrant. After receiving and executing the search warrant, they discovered "various items, including over fifty grams of methamphetamine hidden underneath the dashboard, a loaded .40 caliber pistol, a scale, assorted pills, marijuana seeds, small plastic baggies, and a small notebook with items written down in it." ROA Vol. I at 20-21.

Procedural Background

A grand jury subsequently returned a three-count indictment against Nicholson based on the items found in the car. Count 1 of the indictment charged Nicholson with unlawfully, knowingly and intentionally possessing with intent to distribute 50 grams and more of a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. Count 2 of the indictment charged Nicholson, a convicted felon, with knowingly possessing a firearm in violation of 18 U.S.C. §§922(g)(1) and 924(a)(2). Count 3 of the indictment charged Nicholson with knowingly carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i).

Nicholson filed a motion to suppress the evidence obtained from the traffic stop. Nicholson argued that N.M. Stat. Ann. § 66-7-322-which is essentially analogous to the city ordinance he was cited as violating-did not prohibit the left turn he made, and that, as a result, the traffic stop violated his Fourth Amendment rights. At the hearing held on the motion to suppress, Nicholson suggested that the court should certify the question to the New Mexico Supreme Court if it was uncertain about the interpretation of the ordinance. The district court denied this request, instead stating "I just have to do the best I can." ROA Vol. III at 417. The court then determined the traffic stop was legal because the ordinance prohibited the left turn made by Nicholson. The court then denied Nicholson's motion to suppress.

The case proceeded to trial in March 2011, but a jury was unable to reach a verdict on any count. Nicholson subsequently entered into a conditional plea agreement, pleading guilty to all counts, but reserving his right to appeal the denial of his motion to suppress. ROA Vol. I at 29-35. Nicholson was sentenced to 63 months in custody on counts 1 and 2, to be served concurrently, and 60 months' custody on count 3, to be served consecutively to the sentences on counts 1 and 2.


a. Standard of Review

When reviewing a denial of a motion to suppress, we review de novo the district court's conclusion that the officer's actions were reasonable. United States v. Burciaga, 687 F.3d 1229, 1230 (10th Cir. 2012). Considering the evidence in the light most favorable to the prevailing party, we defer to the district court's findings on questions of fact, reviewing only for clear error. Id. We review questions of law de novo. United States v. Johnson, 584 F.3d 995, 998 (10th Cir. 2009).

b. Officer Violated the Fourth Amendment by Stopping Nicholson on the Basis of a Turn That was Not Illegal

The Fourth Amendment requires that a traffic stop be "objectively justified" at its inception. United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir. 2004). That means a traffic stop must be "based on an observed traffic violation" or a police officer's "reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." United States v. Eckhart, 569 F.3d 1263, 1271 (10th Cir. 2009) (quoting United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc)). Although an officer's mistake of fact can still justify a probable cause or reasonable suspicion determination for a traffic stop, an officer's mistake of law cannot. United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005). "[F]ailure to understand the law by the very person charged with enforcing it is not objectively reasonable." Id.

Nicholson argues Officer Baker made a mistake of law when he stopped Nicholson for making a left turn into Main Street's outermost lane. The district court rejected this argument, concluding Roswell traffic ordinance § 12-6-5.1 prohibited this conduct. We review the district court's construction of state law de novo. DeGasso, 369 F.3d at 1144. The New Mexico Supreme Court has not interpreted this provision, so we must instead determine how the New Mexico Supreme Court would interpret it were the court to face the issue. Tibbetts, 396 F.3d at 1137-38.

Nicholson was stopped and cited for a violation of Roswell traffic ordinance § 12-6-5.1, which regulates the position and method of turns. More specifically, the officer stopped Nicholson on the assumption that § 12-6-5.1 requires a driver making a left turn to complete the turn in the leftmost lane. Id.[2] Roswell has adopted the New Mexico Uniform Traffic Code, which includes ordinance § 12-6-5.1, set out below:

12-6-5.1 REQUIRED POSITION AND METHOD OF TURNING AT INTERSECTION. The driver of a vehicle intending to turn at an intersection shall do so as follows:
A. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the street.
B. At any intersection where traffic is permitted to move in both directions on each street entering the intersection, an approach for a left turn, except where left-turn provisions are made, shall be made in that portion of the right half of the street nearest the center line thereof and by passing to the right of such center line where it enters the intersection and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the street being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.
C. Upon a street with two (2) or more lanes for through traffic in each direction, where a center lane has been provided by distinctive pavement markings for the use of vehicles turning left from both directions, no vehicle shall turn left from any other lane. A vehicle shall not be driven in this center lane for the purpose of overtaking or passing another vehicle proceeding in the same direction. Any maneuver other than a left turn from this center lane will be deemed a violation of this section.
D. At any intersection where traffic is restricted to one (1) direction on one (1) or more of the streets, the driver of a vehicle intending to turn left at any such intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle and after entering the intersection the left turn shall be made so as to leave the intersection, as nearly as practicable, in the left-hand lane lawfully available to traffic moving in such direction upon the street being entered.
E. No person shall drive across any private or public property, including but not limited to parking areas, driveways and service station areas, for the purpose of avoiding any traffic control device or sign.

Although the New Mexico Supreme Court has not interpreted this provision, the New Mexico Court of Appeals recently concluded the analogous state statute, [3] N.M. Stat. Ann. § 66-7-322, did not prohibit the type of left turn made by Nicholson. State v. Almeida, 253 P.3d 941, 943-44 (N.M. Ct. App. 2011). It noted that Section 66-7-322(B) does not by its text require that a driver turn into a specific lane, while other sections which address turns do. Section 66-7-332(A) requires a driver to enter the rightmost lane when making a right turn. Section 66-7-332(D) requires a driver to enter the leftmost lane when making a left turn onto or from a one-way street. Id. Reading the statute as a whole, the court persuasively reasoned the omission of a restriction in Section 66-7-322 (B) combined with the detailed requirements in (A) and (D) demonstrated the absence of a legislative intent to prohibit left turns into the outermost lane when travel on one-way streets is not at issue. Id. at 944.

Although the government correctly asserts we need not adopt the opinion of the intermediate appellate court, see United States v. Valadez-Valadez, 525 F.3d 987, 993 (10th Cir. 2008), it has advanced no rationale which would justify our departing from its reasoning. The court of appeals applied sound methods of statutory interpretation, reading the statute as a whole so that it gave effect to all of its provisions. Any contrary reading would contravene the legislature's apparent intent, requiring us to read words into the statute which the legislature demonstrated it could have, but did not, include. Despite the many statutory provisions which regulate turns, none specifically prohibits the method Nicholson employed in making his turn.[4] We conclude the traffic ordinance relied upon by Officer Baker did not provide a legal basis for his stop of Nicholson.

The government insists we should nonetheless uphold the stop because the law which served as the basis for Officer Baker's stop is not "plain and unambiguous." Even assuming the law was unclear, we cannot agree. In our circuit, as in most others, mistakes of law made by an officer are objectively unreasonable. See Tibbets, 396 F.3d at 1138; see also United States v. McDonald, 453 F.3d 958, 960-62 (7th Cir. 2006) (officer lacked probable cause to stop defendant based on mistaken belief defendant violated law by using his left-turn signal while going around a bend); United States v. Chanthasouxat, 342 F.3d 1271, 1278-80 (11th Cir. 2003) (held a mistake of law invalidated a traffic stop even though the officer believed the law existed based on training, guidance from a magistrate, and the more than 100 tickets he had written citing it); United States v. Lopez-Soto, 205 F.3d 1101, 1106-07 (9th Cir. 2000) (officer lacked reasonable suspicion to stop defendant based on mistaken belief about proper placement of registration sticker); United States v. Miller, 146 F.3d 274, 277-79 (5th Cir. 1998) (officer lacked probable cause to stop defendant based on mistaken belief defendant violated law by using turn signal without changing lanes or turning); but see United States v. Washington, 455 F.3d 824, 827 (8th Cir. 2006) (instead looking at whether a mistake of law is "objectively reasonable").[5]

As we said in Tibbetts, "failure to understand the law by the very person charged with enforcing it is not objectively reasonable." 396 F.3d 1132 at 1136. See also Sherouse v. Ratchner, 573 F.3d 1055, 1059 (10th Cir. 2009) ("While an officer's reasonable but mistaken understanding of the facts justifying a search or seizure does not negate the legitimacy of a probable cause determination, an officer's reasonable but mistaken understanding of the applicable law he is enforcing does."). Nothing in our opinion in Tibbetts suggests we actually meant to limit this rule only to the mistaken understanding of "plain and unambiguous laws."[6] In providing the district court with guidance for interpreting the Utah statute at issue we said that "Utah courts look to the plain language of the statute, and only when the language is ambiguous do they seek guidance from legislative history or policy considerations." Id. at 1138. This instruction on ambiguity seems unnecessary if we only fault police officers when a law is plain and unambiguous.

Despite the dissent's contention, we come to this conclusion by more than just isolating a single sentence of the Tibbetts opinion. Throughout the opinion in Tibbetts, we also took care to distinguish the difference between mistakes of fact and mistakes of law-something that only matters if we treat them differently. Cf. United States v. Smart, 393 F.3d 767, 770 (8th Cir. 2005) ("In any case, in our circuit the distinction between a mistake of law and a mistake of fact is irrelevant to the fourth amendment inquiry."). That is, we excuse reasonable mistakes of fact, but not "reasonable" mistakes of law. Remand to determine the question of whether the officer had made a mistake of fact or a mistake of law would have been unnecessary in Tibbetts if we applied a reasonableness analysis to both types of mistakes.

Moreover, we said that on remand "the district court must determine whether [Sergeant] Chugg had a reasonable articulable suspicion of a violation of Utah's 'mudflap' law in light of the facts as Chugg observed them, or whether Chugg simply misunderstood the law." 396 F.3d at 1137 (emphasis added). Later we said "[w]e have consistently held that an officer's mistake of fact, as distinguished from a mistake of law, may support probable cause or reasonable suspicion." Id. at 1138 (emphasis added). Finally, we instructed the district court on remand to "determine whether Chugg's belief that the law was violated because the mudflaps did not fully cover the wheels was correct, a reasonable mistake of fact, or an impermissible mistake of law." Id. at 1139. Notably, we did not give the district court the option of deciding whether the officer made a "permissible" mistake of law.

Further, as we have acknowledged, requiring law enforcement personnel to know the law they are asked to enforce comports with a basic policy of fairness. If "[a]s a rule, . . . a defendant is presumed to know the law, we must expect as much from law enforcement." United States v. Orduna-Martinez, 561 F.3d 1134, 1137 n.2 (10th Cir. 2009). Permitting officers to excuse their mistakes of substantive law as "reasonable" "would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey." United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000). In addition, although the dissent repeatedly refers to our decision as creating a "new" rule of constitutional law, the outcome we propose here places us in accord with the vast majority of our sister circuits-whose decisions we have repeatedly cited to in our earlier opinions. See Orduna-Martinez, 561 F.3d at 1137 n.2 ("Other circuits have held that a trooper's reasonable mistake of law cannot make an otherwise impermissible stop reasonable. In agreement with these circuits, we have held that failure to understand the law by the very person charged with enforcing it is not objectively reasonable.") (citations and quotations omitted); see, e.g., Tibbetts, 396 F.3d at 1138 (citing United States v. Miller, 146 F.3d 274 (5th Cir. 1998)); DeGasso, 369 F.3d at 1144-45 (citing United States v. Chanthasouxat, 342 F.3d 1271 (11th Cir. 2003)). Given this precedent, we hold the Officer Baker's actions were unreasonable whether or not the ordinance was "plain and unambiguous."

Although we are bound by circuit precedent, we must also point out that any fears that this rule is too restrictive are overstated. Because we retain an objective, totality of the circumstances analysis, actions taken based on a subjective misunderstanding of the law will still, in some circumstances, be considered reasonable.[7] We would not, for instance, hold unreasonable the actions of an officer who pulled over a motorist driving 75 miles per hour in a 55-mile-per-hour zone, even if the officer himself believed the speed limit was 65 miles per hours. Cf. United States v. Wallace, 213 F.3d 1216, 1220 (9th Cir. 2000) (initial stop justified where the officer's "observations correctly caused him to believe that Wallace's window tinting was illegal" although he was "wrong about exactly why"). Indeed, we will uphold a traffic stop as long as there was reasonable suspicion to stop the defendant for "'any one of the multitude of applicable traffic and equipment regulations' of the jurisdiction." United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc) (quoting Delaware v. Prouse, 440 U.S. 648, 661 (1979)). See also Eckhart, 569 F.3d at 1271 (10th Cir. 2009) (upholding traffic stop despite officer's mistake of law because officer had reasonable suspicion to stop vehicle for another related violation of Utah law); United States v. Eckhart, No. 2:05CR529DAK, 2006 WL 1073465, at *3 (D. Utah Apr. 10, 2006) (state trooper testifying incorrectly about requirements of Utah law). So although a defendant need only violate one ...

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