823 F.

2d 1389

UNITED STATES of America, Appellee,

v.
Ismael France CORRAL, Appellant.
UNITED STATES of America, Appellee,
v.
Jose Ramon MARTINEZ-FABELA, Appellant.
Nos. 86-2361, 86-2362.

United States Court of Appeals,

Tenth Circuit.
July 13, 1987.

Robert Ramos, El Paso, Tex., for appellant Corral.

Reber Boult, Albuquerque, N.M. (Timothy M. Padilla, Albuquerque,
N.M., with him on brief), for appellant Martinez-Fabela.
James D. Tierney, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz,
U.S. Atty., and Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., with
him on brief), for appellee.
Before HOLLOWAY, Chief Judge, and ANDERSON and TIMBERS,*
Circuit Judges.
TIMBERS, Circuit Judge.

Jose R. Martinez-Fabela ("Martinez") and Ismael F. Corral ("Corral") appeal

from judgments of conviction entered September 2, 1986 in the District of New
Mexico, Juan G. Burciaga, District Judge, following a jury trial. Martinez and
Corral were found guilty of possession with intent to distribute cocaine, in
violation of 21 U.S.C. Sec. 841(a)(1) (1982) and 18 U.S.C. Sec. 2 (1982).

Prior to trial, Martinez and Corral made a motion to suppress evidence seized
during a consensual search of the rented truck they were driving. They mounted
a multi-prong attack, challenging, first, the constitutionality of the roadblock at

which they were stopped by the New Mexico State Police; second, the
propriety of their detention after the initial stop; and, third, the validity of the
consents they both gave to search the truck and their personal effects. After a
hearing, the district court denied the motions to suppress. On appeal, Martinez
and Corral argue that the denial of their motions was clearly erroneous. We
disagree.
3

We hold that the roadblock in the instant case comported with established law
in this Circuit. The roadblock was put in place to check vehicle registrations,
driver's licenses and proof of insurance--all legitimate and permissible reasons.
We also hold that the detention of Martinez and Corral, following the initial
stop at the roadblock, was reasonable within the meaning of Terry v. Ohio, 392
U.S. 1 (1968). Finally, we hold that appellants' consents to accompany the
officers from the roadblock to the local police department, and to the
subsequent searches, were voluntary and not the product of police overreaching,
coercion or duress.

Martinez also contends that the procedures employed in sentencing him were
flawed by consideration of false and unreliable information contained in the
pre-sentence report prepared on him.1 We disagree. The court below
determined on the record that it placed no reliance on the challenged portions
of one report in imposing sentence. We accept this determination. We do
remand this matter, however, with directions that the trial court cause its
determination that it would not consider the challenged statements in imposing
sentence to be appended, by written order to the pre-sentence report for the
information of any persons examining the pre-sentence report. See
Fed.R.Crim.P. 32(c)(3)(D).

We affirm the judgments of conviction in all respects. As to appellant Martinez'

challenge to his sentencing procedure, we remand for the limited purpose
delineated herein.

I.
6

We summarize only those facts believed necessary to an understanding of the

issues raised on appeal.

On April 17, 1986 Martinez was driving, with Corral his passenger, a rented
Ryder truck eastbound on New Mexico State Road 62/180 when they were
stopped at a roadblock set up by the New Mexico State Police near Hobbs,
New Mexico. The roadblock had been established by State Police Officers

Denton and Frisk, pursuant to their supervisor's permission, to conduct routine

driver's license and car registration checks. The plan implemented by the
officers with the roadblock was to stop all eastbound traffic, with the exception
of a local supermarket's delivery trucks. The latter trucks were excluded from
the roadblock because the officers, who had often stopped such trucks at
previous roadblocks, knew all the drivers and knew that their logbooks, cab
cards and insurance were current.
8

After the Ryder truck stopped, Officer Denton approached it. As Martinez
rolled down the window, the officer detected a strong odor of marijuana
emanating from the truck. The officer requested that Martinez produce his
driver's license and the truck rental agreement. Martinez complied. In addition,
he offered the officer an expired National Guard identification card. Martinez
explained to the officer that he and Corral were on their way to Atlanta to
deliver to Martinez' sister the furniture in the truck. Martinez stated that the trip
was to be a hurried one because he was stationed in El Paso and had to return to
that locale. Denton found this statement to be inconsistent with his expired
National Guard identification card.

In view of his detection of the odor of marijuana, Denton asked Martinez to pull
the truck over to the side of the road. Martinez and Corral thereupon got out of
the truck. At that time Officer Frisk joined them. After being informed by
Denton why he had asked Martinez to pull the truck over to the side of the road,
Frisk asked Martinez for permission to look in the cargo compartment of the
truck. Martinez responded in the affirmative. Frisk began a limited search. He
noticed that the truck was loaded with furniture and cardboard U-Haul boxes
which were taped shut. There also were several mattresses stacked on top of the
cardboard boxes.

10

While the conversation between Frisk and Martinez was taking place, Denton
walked around the truck to the passenger side. He asked Corral who had been
smoking the marijuana. Corral admitted that he had been smoking it, but
insisted that he already had smoked the only joint in his possession. Denton
asked Corral directly if he had in his possession any more marijuana, to which
Corral responded in the negative. Denton informed Corral that, since he had
admitted smoking an illegal substance, Denton would "have to look inside of
everything". Denton next asked Corral if he had ever "been in trouble" before.
Corral responded that he once had been charged with a firearms violation in
Chicago. Denton then decided, for his own safety, to frisk Corral. A pat down
of Corral resulted in the discovery of $429 in currency. Corral then gave
Denton his full name and birthdate. Denton gave this information to Frisk who
went to his police car to radio in a request that a check on Corral be made

through the National Crime Information Center ("NCIC").

11

Denton then asked Corral for permission to look further inside the truck and to
look inside his suitcase. Corral gave his permission to do so. The search of the
suitcase disclosed $1,000 in $20 bills.

12

Denton next opened the sliding door between the truck cab and the cargo
compartment. He saw the furniture and the mattresses stacked on the sealed
cardboard boxes. The officers then consulted with each other. In view of the
amount of currency found in Corral's suitcase and on his person, together with
what the officers believed was a curiously improper way to pack the cargo
compartment, they decided to seek permission to search the truck more
thoroughly. According to Denton's trial testimony, he spoke with appellants as
follows:

13gave--it was extremely windy on that day. I just told him [Martinez] that we could
"I
unload the van at that time right there on the road, or if--they were headed east
anyway, they were going right through Hobbs. At that time, I told them that if they
would rather, we could just go into Hobbs and call the Hobbs Police Department,
who has a drugs detecting dog, that's trained to detect drugs, if they wanted to, it
would be alot easier if we just went in there and let the dog sniff the truck out and
they could be on their way.... The option I gave him [Martinez], we could unload it
there where the wind was blowing and it would have been--to me, it would have
been disastrous. You know, it could have destroyed some of the property that was
there."
14

Appellants agreed to accompany the officers to Hobbs. Following Denton, they

drove into the town. Upon arrival at the Hobbs Police Department, the officers
instructed Martinez to pull the truck into a fenced-in area behind the police
station, out of the wind. There they were met by several officers of the Hobbs
Police Department and "Buster", the dog trained in drug detection. Denton then
requested Martinez to sign a written consent-to-search form, to augment his
earlier oral consent. Following a discussion of the form, Martinez read it twice
and signed it.

15

Once the written form had been signed, Denton instructed Officer Randolph of
the Hobbs Police Department to let "Buster" into the truck. According to the
trial testimony, each time the dog entered the truck he attempted to get
underneath the couch and mattresses to the cardboard boxes. The officers
opened the boxes and discovered approximately 474 pounds of cocaine.
Martinez and Corral were arrested immediately.

16

On April 14, 1986 a federal grand jury returned a one count indictment
charging appellants with one count of possession with intent to distribute
cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1982) and 18 U.S.C. Sec. 2
(1982). On June 27, 1986 an evidentiary hearing was held on defense motions
to suppress. Following the hearing, the motions were denied.

17

The case was tried before a jury on July 15 and 16, 1986. Appellants were
found guilty as charged in the indictment. On August 29, 1986 Corral was
sentenced to a ten year prison term and Martinez was sentenced to a fifteen
year prison term. This appeal followed. We consolidated the appeals for
purposes of oral argument and this opinion.

18

For the reasons set forth below, we affirm the convictions in all respects, with
the exception of the limited remand for the purpose of appending a written
order of determination to appellant Martinez' pre-sentence investigation report.

II.
A. Constitutionality
19

Appellants argue that the roadblock set up by the New Mexico State Police was
unconstitutional under prevailing Fourth Amendment standards. They assert
that the roadblock was not established for the stated purpose of checking
driver's licenses, vehicle registrations and proof of insurance; rather, they claim
that the roadblock was a pretext for stopping them. A thorough review of the
record leaves us with the firm conviction that that argument, cloaked in cursory
allegations, is without merit.

20

We have upheld many times the constitutionality of roadblocks currently in use

by the New Mexico State Police. E.g., United States v. Lopez, 777 F.2d 543
(10th Cir.1985); United States v. Obregon, 748 F.2d 1371 (10th Cir.1984);
United States v. Prichard, 645 F.2d 854 (10th Cir.), cert. denied, 454 U.S. 832
(1981). We uphold the constitutionality of the roadblock involved here.

21

The purpose of the roadblock set up by Officers Denton and Frisk was to check
driver's licenses, vehicle registrations and proof of insurance. This was a
permissible and lawful purpose. The roadblock was set up with the knowledge
and consent of the officers' supervisor. It did not involve a single, random or
selective stop chosen at the officers' discretion. Cf. Delaware v. Prouse, 440
U.S. 648 (1979). Rather, the roadblock as implemented consisted of the
stopping of every vehicle heading east on State Road 62/180 with the exception

of the local supermarket delivery trucks which were permitted to pass

uninspected for articulated and legitimate reasons. Hence, this roadblock was
established in a systematic manner to stop vehicles in a pattern which protected
the public from the officers' unbridled discretion.
22

We hold that the roadblock passed constitutional muster.

B. Propriety of the Detention and Searches

23

We turn next to appellants' contention that their detention was an unreasonable

seizure and that the consents given by them with respect to the subsequent
searches were tainted. Our analysis is bifurcated into two segments: first, the
initial detention; and, second, the search at the Hobbs Police Station.
1. The Initial Detention

24

The Supreme Court has enunciated a two-prong inquiry for evaluating the
reasonableness of police-citizen encounters which, although somewhat
intrusive, fall short of full scale arrest. In Terry v. Ohio, 392 U.S. 1 (1968), the
Court set forth the standard which a reviewing court must apply when
examining police action. We must inquire

25
"whether
the officer's action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the interference in
the first place."
26

Terry, supra, 392 U.S. at 23. In the instant case, having made this inquiry, we
answer it in the affirmative and hold that appellants were detained lawfully after
being initially stopped at the roadblock. Accord, United States v. Obregon, 748
F.2d 1371 (10th Cir.1984).

27

Officers Denton and Frisk had reasonable and articulable suspicion that the
individuals might be involved in violation of the narcotics laws when Officer
Denton recognized the odor of marijuana emanating from the vehicle after
Martinez rolled down the window. This suspicion was confirmed when Corral
admitted that he had smoked marijuana. Further, when Corral informed Denton
that he had been charged at an earlier date with a firearms violation, the officers
were amply justified in running the NCIC check to determine if Corral was a
fugitive. "Consequently, in order to run an NCIC check while minimizing the
danger to the defendants and to travelers approaching the roadblock, the
officers acted reasonably in requesting [Martinez] to park on the shoulder of the

road." United States v. Lopez, 777 F.2d 543, 548 (10th Cir.1985).

28

We hold that the subsequent detention of appellants comported with the

reasonableness requirement of Terry.
2. The Search

29

Appellants contend that the district court erred in finding that they validly
consented to accompany Officers Frisk and Denton to the Hobbs Police
Department. The standard of review of such a claim was set forth in United
States v. Lopez, supra, 777 F.2d at 548: "In reviewing a denial of a motion to
suppress, the trial court's finding of fact must be accepted by this court unless
clearly erroneous, United States v. Cooper, 733 F.2d 1360, 1364 (10th
Cir.1984), with the evidence viewed in the light most favorable to the district
court's finding. United States v. Obregon, 748 F.2d 1371, 1376 (10th
Cir.1984)." We conclude the district court's finding that appellants voluntarily
consented to accompany the officers and to the subsequent searches was not
clearly erroneous.

30

It is axiomatic that a consent to search is valid if voluntarily given. Schneckloth

v. Bustamonte, 412 U.S. 218, 223-226 (1973). Further, consent to search is
voluntary if it is not the product of duress or coercion. Id. at 227. The record
before us is barren of any such negative behavior on the part of the officers
involved. In response to the initial request by Officer Frisk, Martinez agreed to
the search at the roadside. Corral responded to a similar request by Officer
Denton by assuring him that he could "go ahead--no problem". Both Martinez
and Corral stood by observing the search. Neither made any requests of the
officers to stop. After cursory examination, the officers decided that a more
thorough examination of the truck was called for. They gave Martinez and
Corral the option of having the truck searched at the roadside or at the Hobbs
Police Department, where the truck would be searched by a drug-detecting dog.
The option was a sensible one. The testimony was that the weather on the
highway that day was inclement. The task of unloading all of the furniture on
the side of the road would have been unwieldy at best. At worst, it would have
created a situation highly dangerous to the four individuals in particular and the
driving population in general. After consideration, Martinez and Corral decided
to accompany the officers to Hobbs. They knew the reason for the additional
search and that the officers would be aided by a drug-detecting dog. We decline
to relieve appellants of their voluntary choice at this late date.

31

Appellants argue that our holdings in United States v. Gonzalez, 763 F.2d 1127

(10th Cir.1985), and United States v. Recalde, 761 F.2d 1448 (10th Cir.1985),
require reversal of their convictions. We disagree. In those cases, which are
limited to their facts, we held that probable cause to remove the defendants
from the highway to a local police department was non-existent. As a result, the
consents to do so were held to have been rendered involuntary and beyond the
scope of a permissible Terry stop. In the instant case, however, it is beyond
cavil that Officers Frisk and Denton had probable cause to search the truck. The
odor of marijuana struck Officer Denton as soon as Martinez opened the
window. Corral confirmed the use of the illegal substance by admitting that he
had smoked it. Added to this was the unusual manner in which the truck was
packed, in conjunction with the large amount of currency found in Corral's
suitcase. Evaluating these circumstances as they appeared to these prudent,
cautious and trained police officers, United States v. McCormick, 468 F.2d 68,
73 (10th Cir.1972), cert. denied, 410 U.S. 927 (1973), we are satisfied that they
were circumstances which would cause the officers reasonably to believe that a
crime was being committed.
32

We hold that the district court was not clearly erroneous in denying the motions
to suppress.

III.
33

Martinez argues that the district court committed reversible error in considering
certain challenged allegations in his pre-sentence report when it imposed
sentence on him. Based on this he invites us to remand the case for, inter alia, a
new sentencing. We decline the invitation.

34

Fed.R.Crim.P. 32(c)(3)(D) requires that if a defendant alleges any factual

inaccuracy in the pre-sentence investigation report the court could "make (i) a
finding as to the allegation, or (ii) a determination that no such finding is
necessary because the matter controverted will not be taken into account in
sentencing." In the instant case, Martinez challenged certain allegations
contained in the pre-sentence report that he possessed substantial amounts of
cocaine and large amounts of money found at an apartment allegedly rented by
him under an alias. In response to this challenge the court below stated on the
record that it was not considering those allegations in imposing sentence. We
accept the trial court's determination.

35

We note, however, that total compliance with Rule 32(c)(3)(D) was not
achieved with this oral pronouncement. The rule contains an additional
requirement. It is mandatory when it states that the court shall cause a written
record of its determination to be appended to and accompany any copy of the

pre-sentence investigation report thereafter made available to the Bureau of

Prisons or the Parole Commission. It is beyond cavil that these administrative
agencies make substantial use of the pre-sentence investigation report. Justice
requires that any challenges to the accuracy of that report, and the judicial
resolution as to the controverted matters, be brought to the attention of these
agencies when they utilize the report.
36

We therefore remand with directions that the trial court cause its determination
that it did not consider the challenged allegations in imposing sentence to be
appended, in a written order, to the pre-sentence investigation report.

IV.
To summarize:
37

After considering in detail each of appellants' claims of error, we conclude that

the judgments of conviction must be affirmed. We hold that the roadblock, as
implemented by Officers Frisk and Denton, fully comported with Fourth
Amendment standards. We also hold that the detention of appellants after the
initial roadblock stop was acceptable under the rationale of Terry. We further
hold that the evidence is plainly adequate to support the district court's finding
that Martinez and Corral voluntarily consented to accompany the officers to the
Hobbs Police Department and to the subsequent searches. As to appellant
Martinez' pre-sentence investigation report, we remand with directions that the
trial court append a written order of its determination to the report.

38

AFFIRMED in part; REMANDED in part.

Of the Second Circuit, by designation

Martinez also contends that the court erred in denying his pre-trial discovery
motions; and that the voir dire by the court in selecting the jury was insufficient
to insure a fair trial. Corral argues that the evidence was insufficient to sustain
his conviction. We have carefully considered these claims of error and we hold
that they are without merit