Appeal
from the United States District Court for the District of
Wyoming (D.C. No. 2:17-CR-00024-SWS-1)
Catherine M. Young, Student Director (Tom Fleener, Faculty
Director, with her on the briefs), Defender Aid Program,
University of Wyoming, Laramie, Wyoming, appearing for
Appellant.
Thomas
Szott, Assistant United States Attorney (Mark A. Klaassen,
United States Attorney, with him on the brief), Office of the
United States Attorney for the District of Wyoming, Cheyenne,
Wyoming, appearing for Appellee.
Before
BRISCOE, KELLY, and BACHARACH, Circuit Judges.
BRISCOE, Circuit Judge.
Defendant
Bruce M. Latorre appeals his marijuana trafficking
convictions. Latorre flew a private aircraft from California
to New York and was flying back to California when police
detained him in Wyoming. Several law enforcement
agencies-Illinois state police, United States Department of
Homeland Security, and Wyoming state police-cooperated to
investigate and then stop Latorre's aircraft at an
airport in Wyoming, where they received Latorre's consent
to search his aircraft and found $519, 935 in cash. A grand
jury indicted Latorre on two counts: (1) interstate travel in
aid of racketeering, in violation of 18 U.S.C. §
1952(a); and (2) conspiracy to distribute marijuana, in
violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(C). Latorre moved to suppress the evidence from the
search of his aircraft, and the district court denied the
motion. Latorre then entered a conditional guilty plea,
reserving the right to appeal the denial of his motion to
suppress. He now appeals that denial. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we AFFIRM.
I
This
case involves a three-day investigation into Latorre's
air travel. Officer[1]Chris Weidler, an Illinois state trooper
who supervised the state police's aviation unit, used a
radar system to track aircraft flying over Illinois and other
parts of the country. On December 7, 2015, he observed an
aircraft flying through Illinois airspace without an active
transponder.[2] Because the aircraft was flying without an
active transponder, Officer Weidler did not have any flight
information for the aircraft. That the aircraft was flying
without a transponder raised Officer Weidler's
suspicions, so he continued to monitor the aircraft until it
appeared to land at an airport in Ohio. Officer Weidler
called the airport and spoke to an airport employee named
John who had just refueled an aircraft. John told Officer
Weidler that the pilot: paid in cash; claimed to be on a trip
to visit family in Buffalo, New York; and flew an aircraft
with the tail number N511FT.
Officer
Weidler located the aircraft in a Federal Aviation
Administration database, and discovered it was registered to
Latorre in California. Officer Weidler had Officer Chad
Foster, of the Illinois state police, check Latorre's
criminal record. They learned that Latorre had previous
arrests for distribution and possession of marijuana,
distribution of controlled substances, and weapons charges.
Officer Foster also called the United States Customs Air and
Marine Operations Center ("AMOC"), the agency
responsible for monitoring airspace for criminal activity.
AMOC had a record of previous cases involving Latorre, and
AMOC's database alerted it whenever Latorre's
aircraft was identified on radar. AMOC gave Officer Foster
the names and contact information of the federal agents who
were attached to Latorre's previous cases, and Officer
Foster gave this information to Officer Weidler. Officer
Weidler continued to monitor Latorre's aircraft, but the
aircraft fell off of radar somewhere east of Cleveland. He
called the federal agents identified by AMOC and provided
details of his investigation to Special Agent Andrew Stewart,
who was with Homeland Security Investigations and based in
Nebraska.
The
next day, at approximately 9:00 a.m., Officer Foster called
Officer Weidler to inform him that an aircraft without an
active transponder had just left the Hamburg, New York
airport, which is just outside of Buffalo. The aircraft was
traveling at the same speed as Latorre was traveling the day
before, but going west this time. Officer Weidler found the
quick turnaround suspicious for such a long-distance flight,
especially considering Latorre had told John the purpose of
his Buffalo trip was to visit family. The aircraft appeared
and disappeared from radar several times as it flew through
Ohio and Indiana into Illinois. The last time Officer Weidler
saw the aircraft on his radar that day, it was crossing the
Mississippi River into Iowa.
On the
third day of the investigation, at approximately 9:00 a.m.,
Officer Weidler observed an aircraft without an active
transponder flying near Lincoln, Nebraska, traveling at the
same speed as Latorre was traveling two days earlier and as
the unknown aircraft the day prior. The aircraft appeared to
land at an airport in Kearney, Nebraska, and depart soon
thereafter. Officer Weidler called the airport and spoke with
multiple airport employees. Officer Weidler learned an
aircraft with the tail number N115FT- the same tail number
noted the first day of the investigation and belonging to
Latorre- had landed at the airport. He also learned the pilot
used a credit card belonging to Latorre and signed the
receipt as Latorre. The pilot told the employees he was
heading to "Evanston." Officer Weidler began
searching for cities named Evanston between Nebraska and
California, and found Evanston, Wyoming, which had an
airport.
This
focus on the Evanston airport set off a series of
communications between law enforcement officials. First,
Officer Weidler contacted Agent Stewart and updated him with
the new information. Agent Stewart then contacted Homeland
Security Investigations Special Agent Mathew Lowry, who was
based in Salt Lake City, Utah, because he was closer to
Evanston, Wyoming. Agent Lowry began the 45-minute drive to
Evanston with Homeland Security Investigations Special Agent
Ryan Weir. Anticipating that he would not reach the airport
in time to intercept Latorre, Agent Lowry called Officer Chad
Lichty, a task force officer with the Wyoming Division of
Criminal Investigation. Agent Lowry asked Officer Lichty to
stall Latorre's aircraft until Officer Lowry arrived.
Officer Lichty was busy, so he sent Officer Justin Mathson to
the airport.
Dressed
in plain clothes, Officer Mathson arrived at the Evanston
airport shortly before Latorre's aircraft landed. After
refueling, Latorre entered the airport lobby, made eye
contact with Officer Mathson, and then began walking back to
his aircraft. Officer Mathson followed Latorre to his plane,
where Officer Mathson pulled his shirt and coat back to
reveal his badge and gun and asked to see Latorre's
aircraft registration and pilot's license. After Officer
Mathson had engaged in a brief conversation with Latorre,
Agents Lowry and Weir arrived.
Latorre
agreed to speak with Agents Lowry and Weir inside the airport
lobby. Agent Lowry asked Latorre for permission to search his
aircraft, and Latorre replied, "Yeah, I don't
mind." App'x, Vol. II at 116. Officer Mathson then
searched Latorre's aircraft and found a vacuum-sealed bag
containing $519, 935 in cash. Agent Lowry handcuffed Latorre
and read him his Miranda rights. During subsequent
interviews, Latorre admitted his role in a conspiracy to
traffic marijuana to New York and bring money back to
California. Six months later, on June 8, 2016, Latorre
testified before a grand jury in Buffalo, New York, providing
details concerning the marijuana trafficking conspiracy.
After a
Wyoming grand jury indicted Latorre on January 12, 2017, he
moved to suppress evidence from the search of his aircraft.
The district court held an evidentiary hearing on
Latorre's motion to suppress and issued an oral ruling a
week later, denying Latorre's motion to suppress. The
district court concluded: (1) Officer Weidler had reasonable
suspicion to stop Latorre on the tarmac of the Evanston
airport; (2) Officer Mathson's stop was justified under
the "collective knowledge" doctrine; (3) Latorre
consented to the search of his aircraft; and (4) even
assuming the original search was tainted by an
unconstitutional detention, Latorre's grand jury
testimony was freely and voluntarily given and untainted by
the unconstitutional detention.
Latorre
entered into a conditional guilty plea, reserving his right
to appeal the denial of his motion to suppress. The district
court sentenced him to concurrent terms of 24 months'
imprisonment on each count, concurrent terms of 3 years of
supervised release, and financial penalties totaling $2, 000.
Latorre timely appealed.
II
"When
reviewing the denial of a motion to suppress, we view the
evidence in the light most favorable to the government,
accept the district court's findings of fact unless they
are clearly erroneous, and review de novo the ultimate
question of reasonableness under the Fourth Amendment."
United States v. Saulsberry, 878 F.3d 946, 949 (10th
Cir. 2017) (quoting United States v. Lopez, 849 F.3d
921, 925 (10th Cir. 2017)). We conclude Latorre's
constitutional rights were not violated by either Officer
Mathson's detention of Latorre or his subsequent search
of Latorre's aircraft. As a result, we affirm the
district court's denial of Latorre's motion to
suppress.[3]
A.
Whether the detention ...