United States v. Blackburn , 64 F. App'x 190 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 29 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-5173
v. (D.C. No. 01-CR-86-H)
(N.D. Oklahoma)
THOMAS L. BLACKBURN,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, BRORBY, Senior Circuit Judge, and O’BRIEN,
Circuit Judge.
On July 25, 2002, Defendant-Appellant, Thomas L. Blackburn, entered a
conditional guilty plea to one count of possession of marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), reserving his right to appeal the
district court’s denial of his motion to suppress. Defendant filed a timely notice
of appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I. Background 1
On May 12, 2000, Oklahoma Highway Patrol (“OHP”) Trooper Gene Hise
was working a “stationary radar” at mile marker 286 on the Will Rogers Turnpike.
Defendant Blackburn was traveling eastbound on the turnpike in a Ford F-150
pickup truck when Trooper Hise clocked his speed at 52 miles per hour. The
posted speed limit was 45 miles per hour 2 — the area was a designated
construction zone — and there were construction workers present. Trooper Hise
stopped Blackburn, based on the fact that Blackburn’s speed exceeded the posted
speed limit.
Apparently, on May 12, 2000, the Oklahoma Turnpike Authority had not
changed the speed limit for the area in question, in accordance with the applicable
procedures under Oklahoma law. 3 Accordingly, despite the fact that the posted
1
We note that, regarding certain disputed issues of fact, the district court
found Trooper Hise’s testimony to be “credible” and Defendant Blackburn’s
testimony to be “not credible.” Dist. Ct. Order at 1, 8, 9. Because we do not find
this determination to be clearly erroneous, we do the same. See United States v.
McRae, 81 F.3d 1528, 1533 (10th Cir. 1996) (“Determinations of witness
credibility [are] review[ed] for clear error.”).
2
It is not clear from the record whether the signs were posted by the
Oklahoma Turnpike Commission or by one of the construction firms doing work
on the turnpike. According to the affidavit of Oklahoma Transportation
Authority’s chief engineer, Stacey Trumbo, “[a]ny signs, cones, or barrels present
at Mile Marker 287 on the Will Rogers Turnpike on May 12, 2000, were not
placed there by the Oklahoma Transportation Authority.”
3
Under Okla. Stat. Ann. tit. 47, § 11-1401(I): “The Oklahoma
(continued...)
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speed limit was 45 miles per hour, the legal maximum speed was 75 miles per
hour. 4 Officer Hise was not aware of the fact that the posted speed limit, 45 miles
per hour, did not accurately reflect the legal speed limit as established by the
Oklahoma Turnpike Authority. 5
Trooper Hise requested that Blackburn accompany him to his squad car.
During his initial contact with Blackburn, Trooper Hise observed the following:
“[Blackburn] was uptight. He wasn’t making a lot of eye contact with me. His
belly was quivering. His carotid artery in his neck was extremely fast, his pulse,
his heart rate was — was up.” On cross-examination, Trooper Hise stated all of
these factors boiled down to “nervousness.” Trooper Hise informed Blackburn
that he was going to issue a “courtesy warning,” but Blackburn’s nervousness
3
(...continued)
Transportation Authority is . . . authorized to prescribe maximum and minimum
speeds for trucks, buses and automobiles using turnpikes. . . . Such regulations
shall become effective only after approval by the Commissioner of Public Safety,
and after signs have been posted on the turnpike giving notice thereof.”
Apparently, the Oklahoma Transportation Authority has delegated certain
responsibilities relating to construction zones to the Oklahoma Turnpike
Authority.
4
The government stipulated to this fact at the motion to suppress hearing.
5
As the district court noted, even if Blackburn did not exceed the speed
limit established by the Oklahoma Turnpike Authority, he was still in violation of
Oklahoma law. Under Okla. Stat. Ann., tit. 47, § 11-1401(K), “All vehicles
traveling on a turnpike shall comply at all times with signs placed on the turnpike
regulating traffic thereon.” It is undisputed that, at the time in question, the
posted speed limit was 45 miles per hour.
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persisted. Trooper Hise also noticed that Blackburn was at times
“unresponsive.” 6
While filling out the citation form, Trooper Hise asked Blackburn a number
of questions, including his starting point, destination, and whether he owned the
vehicle. 7 On cross examination, defense counsel asked Trooper Hise whether
these questions were “necessary to finish and to do the purpose of filling out that
particular warning”? Trooper Hise responded, “I would say no, sir.”
After Blackburn signed the warning, he exited Trooper Hise’s squad car
and headed back towards the truck. By this time, Trooper Hise’s partner, Trooper
Buddy Lambert, had arrived at the scene. 8 Trooper Hise told him to “slow down”
and “be careful on his trip” and that he was “free to go.” Before Blackburn
opened the driver-side door, however, Trooper Hise asked “if he had a minute . . .
[to] visit with him.” At the time of this request, Trooper Hise was standing at the
rear of the truck, approximately nine feet from Blackburn, while Trooper Lambert
was standing between the squad car and the truck. Blackburn responded, “Sure.” 9
6
Blackburn later advised Trooper Hise that he had a hearing problem.
7
Blackburn was not the registered owner of the truck.
8
At some point during his conversation with Blackburn, Trooper Hise
requested that his partner, Trooper Buddy Lambert, come to the scene.
9
Trooper Hise testified that if Blackburn had not consented to the
additional questioning, he would have detained him. In response to defense
(continued...)
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Trooper Hise first asked Blackburn why he was so nervous. Trooper Hise
then asked whether there was “anything illegal in the truck,” to which Blackburn
responded, “Not that I know of.” At this point, Trooper Hise requested
Blackburn’s permission to search the truck. Blackburn responded, “Go ahead.”
This occurred approximately fifteen minutes after the initial stop.
Trooper Hise first searched the cab area of the truck. He then proceeded to
the back of the truck, but he realized that he could not access the “camper shell.”
Trooper Hise asked Blackburn for the key to the camper shell, and Blackburn told
him that “there was no key.” According to Trooper Hise’s testimony, “then I
walked back to the rear of [the truck] and I grabbed the tailgate handle and down
the tailgate came.” After the tailgate opened, Trooper Hise observed a baby’s
mattress and perceived the odor of raw marijuana. 10 Trooper Hise then advised
Blackburn that he was under arrest and advised him of his Miranda rights.
Government authorities later determined that the truck contained over 1,000
9
(...continued)
counsel’s question concerning whether Blackburn was really “free to go,” Trooper
Hise responded, “No, sir, I was lying to him.” Trooper Hise testified that “in my
internal dialect he was under investigative detention.” In fact, Trooper Hise
indicated that, based on his training, “[he knew] that they have to be free to go
before [he] can say ‘oh, by the way.’” The fact remains, however, that Trooper
Hise represented to Blackburn that he was free to go. Furthermore, Blackburn
clearly believed he was free to leave because he proceeded to turn around and
start back toward the truck.
10
Trooper Hise testified that he is very familiar with the smell of
marijuana.
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pounds of marijuana.
On July 25, 2002, Blackburn conditionally pled guilty to one count of
possession of marijuana with intent to distribute, in violation of 21 U.S.C. §
841(a)(1), reserving his right to appeal the district court’s denial of his motion to
suppress. This appeal followed.
II. Discussion
A. Standard of Review
We review the district court’s denial of a motion to suppress for clear error.
United States v. Soto, 988 F.2d 1548, 1551 (10th Cir. 1993) (citations omitted).
In conducting our review, we consider the evidence in the light most favorable to
the district court’s ruling. Id. (citations omitted). We review de novo, however,
the ultimate determination of reasonableness under the Fourth Amendment. Id.(citations omitted).
B. Whether Trooper Hise’s Search of Blackburn’s Truck and Seizure of
the Marijuana was Constitutional Under the Fourth Amendment.
In reviewing the constitutionality of traffic stops under the Fourth
Amendment, we conduct a two-step inquiry. First, we must determine “whether
the officer’s action was justified at its inception.” United States v. Gonzalez-
Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994). Second, we must consider “whether
the action was reasonably related in scope to the circumstances that first justified
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the interference.” Id. Further detention or questioning, unrelated to the traffic
stop, is only permissible (1) where the officer “has an objectively reasonable and
articulable suspicion that illegal activity has occurred or is occurring,” or (2) “ if
the initial detention has become a consensual encounter.” Id. (citations omitted).
1. The initial traffic stop
“[A] detaining officer must have an objectively reasonable articulable
suspicion that a traffic violation has occurred or is occurring before stopping [an]
automobile.” Soto, 988 F.2d at 1554 (citation omitted). In this case, “[o]ur sole
inquiry is whether this particular officer had reasonable suspicion that this
particular motorist violated ‘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) (citation omitted).
Here, Trooper Hise had objectively reasonable, articulable suspicion that
Blackburn’s speed exceeded the posted legal maximum speed for the area in
question, in violation of Oklahoma law. See Okla. Stat. Ann. tit. 47, § 11-1401(I)
(“It shall be a violation of this section to drive a vehicle at a faster rate of speed
than such prescribed maximum speed or at a slower rate of speed than such
prescribed minimum speed.”). Although the posted legal maximum speed did not
reflect the actual legal maximum speed, Officer Blackburn’s actions were still
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reasonable, insofar as he was unaware of the discrepancy. 11 Accordingly, we hold
that Trooper Hise’s initial stop of Blackburn comported with the requirements of
the Fourth Amendment. See Soto, 988 F.2d at 1554.
2. The investigative detention
“During a routine traffic stop, the detaining officer may request a driver’s
license and vehicle registration, run a computer check on the car and driver, and
issue a citation.” Id. (citations omitted). In addition, the detaining officer may
question the vehicle’s occupants regarding their identity, travel plans, and
ownership of the vehicle. United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.
1989). Once an officer has issued a citation in a traffic stop, “‘[i]f the driver
produces a valid license and proof of right to operate the vehicle, the officer must
11
Blackburn’s reliance on United States v. Lopez-Valdez, 178 F.3d 282 (5th
Cir. 1999), United States v. King, 244 F.3d 736 (9th Cir. 2001), and United States
v. Twilley, 222 F.3d 1092 (9th Cir. 2000), is unavailing, insofar as all three cases
are factually distinguishable. In this case, Trooper Hise was not mistaken as to
the scope of the applicable law, Okla. Stat. Ann. tit. 47, § 11-1401(I). Rather, he
was simply unaware that, on May 12, 2000, the Oklahoma Turnpike Authority had
not changed the official speed limit for the area in question, in accordance with
applicable procedures under Oklahoma law. Trooper Hise should not have been
required to anticipate this fact. Cf. Michigan v. DeFillippo , 443 U.S. 31, 37-38
(1979) (“A prudent officer, in the course of determining whether respondent had
committed an offense under all the circumstances shown by this record, should
not have been required to anticipate that a court would later hold the ordinance
unconstitutional.”). Further, Blackburn was still operating his vehicle in violation
of Oklahoma law. See Okla. Stat. Ann. tit. 47, § 11-1401(K) (“All vehicles
traveling on a turnpike shall comply at all times with signs placed on the turnpike
regulating traffic thereon.”).
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allow him to continue on his way without delay for further questioning.’” Soto ,
988 F.2d at 1554 (citing United States v. Pena , 920 F.2d 1509, 1514 (10th Cir.
1990)).
In this case, Trooper Hise issued a warning citation and the overall duration
of the detention was approximately fifteen minutes. 12
Further, Trooper Hise’s
questions while issuing the citation related to Blackburn’s travel plans and
ownership of the truck. Thus, under Soto and Rivera , Trooper Hise’s actions
were within the legitimate scope of the traffic stop. Once Trooper Hise returned
Blackburn’s documentation and finished issuing the citation, he told Blackburn he
was free to go and Blackburn started to return to his truck. At this point, Trooper
Hise’s continued questioning of Blackburn was proper because the encounter
between Trooper Hise and Blackburn became consensual. See United States v.
Hernandez , 93 F.3d 1493, 1498-99 (10th Cir. 1996) (finding that an encounter
became consensual where officer returned license and registration, told defendant
he was free to go, defendant turned to leave, and officer then requested without
any show of force that defendant answer a few more questions).
3. The search
In this case, the district court concluded that Blackburn voluntarily
consented to Trooper Hise’s search of his truck and that Trooper Hise’s search
12
Here, we refer to the time it took Trooper Hise to issue the warning.
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did not exceed the scope of Blackburn’s consent. Dist. Ct. Order at 8-9. For the
reasons set forth below, we agree.
a. Whether Blackburn Voluntarily Consented to the Search
of His Truck.
“Whether or not a party has voluntarily consented to a search is a question
of fact that the district court must evaluate in view of the totality of the
circumstances.” United States v. Doyle , 129 F.3d 1372, 1377 (10th Cir. 1997)
(citations omitted). In the present case, the district court found that Blackburn
voluntarily consented, and “we must accept that finding unless it is clearly
erroneous.” Soto , 988 F.2d at 1557.
In United States v. Dewitt , we held that the defendant’s consent was
consensual based on the following facts: (1) the defendant answered “yes” to the
trooper’s request to search the vehicle; (2) the “defendant stood silently behind
the automobile during the course of the search”; and (3) the trooper did not make
any “show of force or intimidation.” 946 F.2d 1497, 1500 (10th Cir. 1991).
The facts in this case are similar to Dewitt . Blackburn responded “Go
ahead” when Trooper Hise requested permission to search his truck. Further,
Blackburn was only a few yards from the truck during the search, and he raised no
objections to Trooper Hise’s actions. Finally, Blackburn does not contend that
Trooper Hise or Trooper Lambert made any “show of force or intimidation.” Id.- 10 -
In light of these facts, we cannot conclude that the district court’s conclusion was
clearly erroneous. Soto , 988 F.2d at 1557.
b. Whether the Scope of Trooper Hise’s Search was
Reasonable.
Whether a search remained within the boundaries of the consent is a
question of fact, which we review for clear error based on the “totality of the
circumstances.” United States v. Pena , 920 F.2d 1509, 1514 (10th Cir. 1990).
“‘The standard for measuring the scope of a suspect’s consent under the Fourth
Amendment is that of “objective” reasonableness — what would the typical
reasonable person have understood by the exchange between the officer and the
suspect.’” United States v. Ramstad , 219 F.3d 1263, 1266 (10th Cir. 2000)
(citation omitted). Ordinarily, an individual’s consent to an officer’s request to
search his vehicle authorizes a thorough and complete search of the vehicle,
absent either (1) a request by the officer with a limitation in scope, or (2) a
limiting instruction included in the individual’s consent. See United States v.
Elliott , 107 F.3d 810, 815 (10th Cir. 1997) (citing cases).
In this case, Trooper Hise did not limit his request for consent. Nor did
Blackburn’s response (“Go ahead”) in any way limit his consent. Although
Blackburn argues that he subsequently limited the scope of his consent by telling
Trooper Hise that he did not have a key for the camper shell, we disagree.
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“‘[T]he typical reasonable person [would not] have understood [this] exchange
between [Trooper Hise] and [Blackburn]’” as limiting Blackburn’s earlier
consent. See Ramstad , 219 F.3d at 1266. Thus, Blackburn consented to a
thorough search of his truck, and Trooper Hise’s search pursuant to Blackburn’s
consent did not violate the Fourth Amendment.
III. Conclusion
Based on the foregoing, we AFFIRM the district court’s denial of
Blackburn’s motion to suppress and AFFIRM his conviction under 21 U.S.C. §
841(a)(1).
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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