from the United States District Court for the District of New
Mexico (D.C. No. 1:13-CR-01152-WJ-1)
Gabriel Mirabal filed a brief pro se.
T. Baker (Carter B. Harrison, with him on the briefs),
Peifer, Hanson & Mullins, P.A., Albuquerque, New Mexico,
Nicholas J. Ganjei, Assistant United States Attorney (James
D. Tierney, Acting United States Attorney, with him on the
briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.
KELLY, HOLMES, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
appeal is brought by Mr. Gabriel Mirabal. He is a convicted
felon, which prevented him from lawfully possessing a gun. 18
U.S.C. § 922(g)(1). But authorities thought that they
had seen Mr. Mirabal put an assault rifle in the trunk of a
car. This sighting led authorities to arrange for a local
officer to stop Mr. Mirabal for a traffic violation and to
search the trunk. Carrying out these arrangements, Deputy
Micah Barker saw Mr. Mirabal speeding and initiated a traffic
telling Mr. Mirabal that he had been speeding, Deputy Barker
looked for an assault rifle. Though he didn't find one,
he did find a kilogram of cocaine in the car's interior.
The discovery of cocaine in the car became key evidence for
one of the eventual charges against Mr. Mirabal. In defending
against these charges, Mr. Mirabal argued that the search had
violated the Fourth Amendment. This argument did not convince
the district court, and the case went to trial.
trial, the Government presented testimony by the owner of the
car, Mr. Dominic Anaya, who had pleaded guilty to his own
drug crimes. Mr. Anaya testified that he and Mr. Mirabal had
worked together to sell cocaine. So Mr. Mirabal set out to
impeach Mr. Anaya. To do so, Mr. Mirabal tried to question
Mr. Anaya about how much he expected his sentence to drop as
a result of his plea agreement. Mr. Mirabal was allowed to
probe the plea agreement in general terms, but not in detail.
appeal, Mr. Mirabal raises two primary arguments and three
Mr. Mirabal challenges the introduction of evidence involving
the cocaine found in the car. Deputy Barker had probable
cause to believe that there was an assault rifle in the
trunk, so he looked there. But Deputy Barker claims that he
could not see the back of the trunk because of a long speaker
box blocking his view. To see the trunk better, he entered
the back seat and pulled an armrest down. It was then that
Deputy Barker found the cocaine.
Mirabal alleges that Deputy Barker violated the Fourth
Amendment by going into the interior of the car and pulling
the armrest down. We disagree, concluding that the officer
complied with the Fourth Amendment by acting reasonably in
trying to find a way to see into the back of the trunk.
Mr. Mirabal challenges the restrictions placed on his
cross-examination of Mr. Anaya. For the sake of argument, we
may assume that the restrictions violated the Confrontation
Clause. Even if they did, however, any possible violation
would have been harmless in light of the strength of the
prosecution's case and Mr. Mirabal's opportunity to
thoroughly undermine Mr. Anaya's credibility in
Mr. Mirabal alleges insufficiency of the evidence,
destruction of evidence, and withholding of evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963).
We reject these challenges, concluding that the trial
evidence was sufficient to convict, the evidence was not
destroyed in bad faith, and Mr. Mirabal did not identify the
evidence allegedly withheld in violation of Brady.
light of these conclusions, we affirm the conviction.
Motion to Suppress
begin with Mr. Mirabal's argument for suppression of
evidence involving the cocaine found in the car.
Standard of Review
issue, we review the district court's "factual
findings for clear error and view the evidence in the light
most favorable to the government." United States v.
DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009). A factual
finding is clearly erroneous if it lacks evidentiary support
or if a review of the evidence leaves us "'with the
definite and firm conviction that a mistake has been
made.'" United States v. Haymond, 869 F.3d
1153, 1157 (10th Cir. 2017) (quoting United States v.
Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017)). The
ultimate reasonableness of the search, however, is reviewed
de novo. DeJear, 552 F.3d at 1200.
The Ruling in District Court
Mirabal moved to suppress evidence of the cocaine, arguing
that Deputy Barker's search had exceeded the scope
permitted by the Fourth Amendment. The district court
credited Deputy Barker's testimony and ruled that the
search had complied with the Fourth Amendment. Mr. Mirabal
challenges this ruling.
Reasonableness of the Search
challenging the ruling, Mr. Mirabal does not question the
existence of probable cause regarding the presence of an
assault rifle in the trunk. He instead asserts that Deputy
Barker acted unreasonably by entering the back seat and
pulling the armrest down. We disagree.
officers may search a car without a warrant upon probable
cause to believe that contraband is present. United
States v. Chavez, 534 F.3d 1338, 1345 (10th Cir. 2008).
But a search is permitted only in the parts of the car where
the officers could reasonably expect to find the contraband.
See United States v. Ross, 456 U.S. 798, 824 (1982)
("The scope of a warrantless search of an automobile . .
. is defined by the object of the search and the places in
which there is probable cause to believe that it may be
found."). For example, "[p]robable cause to believe
that a container placed in the trunk of a taxi contains
contraband or evidence does not justify a search of the
entire cab." Id.
officers are limited not only in the place to search but also
in the manner of searching, which must be "reasonable
under the circumstances." United States v.
Mendoza, 817 F.3d 695, 702 (10th Cir. 2016). Thus, an
officer can decide how to carry out a search as long as the
officer's decision is reasonable. Lawmaster v.
Ward, 125 F.3d 1341, 1349 (10th Cir. 1997). For example,
the officer may deem it necessary to perform "separate
acts of entry or opening" in order to conduct the
search. Ross, 456 U.S. at 820-21.
Mirabal presents five arguments for why Deputy Barker should
not have entered the back seat and pulled down the armrest:
1. The back of the trunk, behind the speaker box, was too
small to fit an assault rifle.
2. The package was not immediately recognizable as
contraband, preventing seizure under the plain-view doctrine.
3. Deputy Barker could discover whatever lay in the back of
the trunk by leaning over the speaker box and searching with
4. The compartment behind the armrest (where the cocaine was
found) was too small to contain an assault rifle.
5. Deputy Barker did not know whether the car had a
reject Mr. Mirabal's first argument. Deputy Barker
testified based on his military experience and familiarity
with assault rifles. In light of this experience, he
testified that a rifle could have fit behind the speaker box.
See Ornelas v. United States, 517 U.S. 690, 699
(1996) (recognizing that police officers can draw inferences
from prior experience). The district court had little reason
to question Deputy Barker's explanation for why he had
tried to view the back of the trunk.
Mirabal criticizes Deputy Barker's explanation,
contending that the assault rifle was too big to fit in the
part of the trunk hidden from view. For this contention, Mr.
Mirabal relies on a 1969 manual describing the length of
assault rifles. But Mr. Mirabal failed to present the
district court with evidence of this manual. Without such
evidence, the district court could reasonably rely on Deputy
Barker's explanation for why he had tried to see into the
back of the trunk.
reject Mr. Mirabal's second argument (that the package
was not recognizable as contraband). Mr. Mirabal did not
present this argument in district court, and he has not urged
plain-error review. Therefore, we decline to consider this