United States v. Douglas , 195 F. App'x 780 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 15, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-3343
(D. Kansas)
PAUL D OUGLA S, (D.Ct. No. 03-CR-20063-02-JW L)
Defendant - Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 1
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The 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.
1
Necessary documents were absent from the Public Defender's brief and (contrary
to counsel's certificate) not included with the electronically submitted brief. Counsel are
reminded of the appellant's obligation to attach to the opening brief a copy of all pertinent
written findings, conclusions, opinions or orders entered by the district court. 10th Cir. R.
28.2 (A)(1).
On January 20, 2004, Paul Douglas entered a conditional guilty plea to
possession with intent to distribute phencyclidine (PCP) in violation of 18 U.S.C.
§ 2 and 21 U.S.C. § 841(a)(1). He appeals from the district court’s denial of his
motion to suppress. W e AFFIRM .
Background:
On M ay 19, 2003, Trooper David Heim of the Kansas Highway Patrol
stopped a Ford Taurus driven by Douglas for failure to signal a lane change. A t
2:02 p.m., 2 Trooper Heim first approached the car and asked Douglas, and his
passenger, M ark Seymour, for their licenses and the car rental papers. Douglas’
drivers license was broken into two pieces and held together by tape. Heim then
asked the men w here they were coming from and their destination. Seymour
responded they were coming from Los A ngeles, California, and heading to
W ashington, D.C. Heim asked them w hy they were not flying instead. Seymour
responded that they had flown out to California and had rented the car to drive
back. Both men wore a suit and tie.
Approximately ninety seconds into the stop, Heim returned to his patrol car
and ran the licenses through dispatch to see if there were any outstanding
warrants. Heim received an immediate response on Seymour’s license stating that
2
When Trooper Heim activated his emergency equipment to pull Douglas over,
he also activated a video camera and the entire encounter was videotaped. The video is
time-stamped and was admitted into evidence.
-2-
it was valid and that there were no outstanding arrest warrants. In the process,
Heim discovered Seymour had a prior drug arrest and several armed violent
crimes. Heim asked the dispatcher to run Douglas’ license against the
W ashington, D.C. database. Douglas’ license came back as not on file.
At approximately 2:08 p.m., after re-running the information with dispatch,
Heim returned to the Taurus to talk to Douglas and Seymour. He returned
Seymour’s license and the rental papers and informed Douglas his license was not
on file and asked him if there was a problem with it. D ouglas answered no.
W hile talking to Douglas and Seymour, Heim observed a radar detector on the
dash of the rental car and detected a very strong caustic chemical odor. He asked
them about the smell and whether there were any open alcohol containers in the
car. 3 They answered no. Heim also noticed two cologne bottles, one in the back
seat and one in the front, along with a hand-rolled cigar in the front seat.
Knowing that hand-rolled cigars are sometimes used to conceal marijuana, Heim
asked to see the cigar. Seymour produced a package of Backwoods hand-rolled
cigars. There was no evidence of marijuana. Suspicious of their travel plans, and
nervous about the possible presence of weapons based on Seymour’s criminal
history, Heim decided to question Seymour and Douglas separately.
3
Heim testified he knew the odor was not alcohol, but asked the question hoping
Douglas or Seymour would give him permission to search the vehicle to confirm that
there was no alcohol in the car. They did not offer that opportunity.
-3-
At 2:11 p.m., nine minutes into the stop, Heim removed D ouglas from the
Taurus and, because it was raining, had him sit in the passenger seat of the patrol
car to question him. Heim asked Douglas about their travel itinerary. Douglas
stated he and Seymour had stayed in California for a couple of days to visit
Seymour’s in-laws. W hile Seymour was visiting family, Douglas stated he went
sight-seeing in southern California. Douglas was unable to provide the names of
any of Seymour’s relatives.
At 2:13 p.m., Heim left Douglas in the patrol car and returned to the Taurus
to ask Seymour the same questions. At 2:15 p.m., Heim returned to the patrol car
and confirmed with dispatch that nothing had yet come back on Douglas’ license.
He then asked Douglas if he had a criminal history or if he was carrying any
contraband, such as w eapons or drugs. Douglas denied having a criminal history
or carrying weapons or drugs.
At 2:19 p.m., eighteen minutes into the stop, Heim again returned to the
Taurus and asked Seymour about his criminal history and if he was carrying drugs
weapons or other contraband. Seymour admitted he had a criminal history and
informed Heim he had no weapons or other contraband. Heim asked Seymour to
step out of the car and patted him down for weapons. At this point, Seymour
became irritated about the length of the stop and Heim’s various questions. Heim
attempted to explain his concerns, but Seymour repeatedly interrupted and argued
with him. At 2:21 p.m., Heim requested permission to search the car. Seymour
-4-
questioned the necessity of the search and generally refused consent. At some
point during this encounter, H eim took possession of the car keys. At 2:22 p.m.,
Heim returned to his patrol car to request a drug dog, as is his practice in almost
every case in which consent to search is refused. 4
At 2:39 p.m., while waiting for the dog to arrive, Heim returned to the
patrol car and again asked Douglas about his license. Douglas volunteered that
his license number was the same as his social security number. Heim again
contacted dispatch to check the license and again emphasized the license was
from W ashington, D.C. At this point, Heim realized dispatch had mistakenly
been running the license through W ashington state. W hen the mistake was
corrected, the license came back as valid. At 2:44 p.m., Heim apologized for the
delay and finished issuing a warning citation for the failure to signal a lane
change.
At 3:01 p.m., fifty-nine minutes into the stop, the drug dog arrived with its
handler. It alerted to the trunk of the Taurus. The trunk was opened at 3:03 p.m.
and contained approximately 3,591 milliliters of PCP (with a net weight of 2,621
4
There is some inconsistency in the record as to the precise time of the call for the
drug dog. In his brief, Douglas lists the call for the drug dog as occurring shortly after
2:22 p.m. (Appellant’s Br. at 6.) According to Heim’s testimony at the hearing, he called
for the drug dog after issuing the warning citation to Douglas, which would place the
request after 2:44 p.m. (R. Vol. IV at 20-21.) However, Heim also stated he waited for
the drug dog for over thirty minutes, which would place the call prior to 2:30 p.m. (Id. at
22.) The videotape provided in the record places the call at 2:24 p.m. (R. Vol. VI.)
-5-
grams) and 435.8 grams of marijuana.
On M ay 28, 2003, Douglas was indicted on one count of possession with
intent to distribute PCP and one count of possession with intent to distribute
marijuana. At trial, he moved to suppress all evidence seized from the search.
The district court denied the motion holding there was a reasonable basis to call
for a drug dog and the total delay was not unreasonable. D ouglas subsequently
entered a conditional guilty plea, preserving his right to appeal the suppression
ruling. He was sentenced to twenty-four months imprisonment.
Discussion:
“In reviewing the denial of a motion to suppress, we accept the factual
findings of the district court unless they are clearly erroneous.” United States v.
West, 219 F.3d 1171, 1176 (10th Cir. 2000) (citation omitted). “However, we
review de novo the ultimate determination of the reasonableness of the search
under the Fourth Amendment.” United States v. Bustillos-M unoz, 235 F.3d 505,
511 (10th Cir. 2000) (citation omitted). “W e view the evidence in the light most
favorable to the district court’s determination.” United States v. Wood, 106 F.3d
942, 945 (10th Cir. 1997).
The Fourth Amendment to the United States Constitution protects “[t]he
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” “[T]he underlying comm and of the
Fourth Amendment is always that searches and seizures be reasonable.” Wilson v.
-6-
Arkansas, 514 U.S. 927, 931 (1995) (quotation omitted). A routine traffic stop is
analogous to an investigative detention and is analyzed under the principles
enunciated in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Caro, 248 F.3d
1240, 1244 (10th Cir. 2001). W e undertake a two-step inquiry to determine the
constitutionality of an investigative detention. First, we determine whether the
police officer’s action was justified at its inception. Terry, 392 U.S. at 20; Caro,
247 F.3d at 1244. Second, we consider whether the action was reasonably related
in scope to the circumstances which justified the interference in the first place.
Id.
“An investigative detention must be temporary, lasting no longer than
necessary to effectuate the purpose of the stop, and the scope of the detention
must be carefully tailored to its underlying justification.” Wood, 106 F.3d at 945.
During a routine traffic stop, a police officer may request a driver’s license and
vehicle registration, run a computer check, and issue a citation as a matter of
course. Id.; United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995). M oreover,
an officer may ordinarily ask questions relating to a driver’s travel plans without
exceeding the scope of a traffic stop. United States v. William s, 271 F.3d 1262,
1267 (10th Cir. 2001). The officer may even go further, inquiring into matters
unrelated to the stop. M uehler v. M ena, 544 U.S. 93, 101 (2005). “Even when
officers have no basis for suspecting a particular individual, they may generally
ask questions of that individual; ask to examine the individual’s identification;
-7-
and request consent to search his or her luggage.” Id. (quoting Florida v. Bostick,
501 U.S. 429, 434-35 (1991)). The officer may also obtain information regarding
the detainee’s criminal history. United States v. M cRae, 81 F.3d 1528, 1536 n.6
(10th Cir. 1996). “W hen the driver has produced a valid license and proof that he
is entitled to operate the car, he must be allowed to proceed on his way, without
being subject to further delay by police for additional questioning.” United States
v. Sandoval, 29 F.3d 537, 549 (10th Cir. 1994). Thus, after completing these
activities, an officer may continue to detain a driver only if: (1) the officer has an
objectively reasonable and articulable suspicion that illegal activity has occurred
or is occurring, or (2) the detention has become a consensual encounter. United
States v. Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004).
Two matters are conceded. Trooper Heim’s initial stop for failure to signal
a lane change was justified and the initial detention never became a consensual
encounter. The first issue, therefore, is whether length of the delay was necessary
to effectuate the purpose of the stop. See Wood, 106 F.3d at 945. W hile a one
hour detention on its face appears to exceed the scope of a routine traffic stop, in
this case it was necessary. Upon being validly stopped for a failure to signal a
lane change, Douglas presented a mutilated license that came back as not on file
because of a dispatch error. Approximately thirty-eight minutes transpired
between the initiation of the stop and validation of Douglas’ license. During that
period, Trooper Heim faced the dilemma of releasing (or arresting) Douglas
-8-
without adequately testing his claim that he had a valid license. See United States
v. Lee, 73 F.3d 1034, 1039 (10th Cir. 1996) (requiring prompt release w here
driver has produced a valid driver’s license). W hile the error and resultant delay
was not attributable to Douglas, neither was it attributable to Heim who
rechecked the validity of the license at least four times and repeatedly informed
dispatch the license was from W ashington D.C. See United States v. Place, 462
U.S. 696, 709-10 (1983) (“[I]n assessing the effect of the length of the detention,
we take into account whether the police diligently pursue their investigation.”).
Trooper H eim was thus justified in perpetuating the stop long enough to
determine whether the license was in fact valid. See United States v. Rutherford,
824 F.2d 831, 834 (10th Cir. 1987) (one-hour investigative stop prior to arrest
upheld w hen nearly one half-hour was due to problems with the police computer,
and officers had received tip that implicated defendant in drug trafficking,
defendant failed to stop when signaled by police, and there were inconsistencies
between vehicle’s license plate and registration); United States v. Shareef, 100
F.3d 1491, 1501-02 (10th Cir. 1996) (W here, inter alia, police “computers used to
verify license information were down or slow” and the driver was not carrying a
license, “a detention of thirty minutes, given the totality of the circumstances . . .
was reasonable.”).
Because Douglas was not permitted to leave as soon as the warning ticket
was issued we next must consider w hether H eim had a reasonable and articulable
-9-
suspicion of criminal activity such that the continued detention of Douglas did not
offend the Fourth Amendment. In conducting this inquiry, we consider the
totality of the circumstances. United States v. Arvizu, 534 U.S. 299 (2002);
United States v. Bradford, 423 F.3d 1149, 1157 (10th Cir. 2005); United States v.
Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998). W e recognize a law enforcement
officer’s experience and training help to distinguish between innocent and
suspicious actions. United States v. Lopez-M artinez, 25 F.3d 1481, 1484 (10th
Cir. 1994). Reasonable suspicion may be founded on factors consistent with
innocent travel. United States v. Sokolow, 490 U.S. 1, 9-10 (1989). W hile
patently innocent or wholly ambiguous conduct may do little to inform the debate,
they are part of the calculus and may not be categorically disregarded. 5
During the thirty-eight minutes required to verify the validity of D ouglas’
license, Trooper Heim limited himself to permissible questioning of Douglas and
Seymour. During the questioning, Heim uncovered: 1) passengers with an
unusual travel itinerary, see Wood, 106 F.3d at 946-47, 6 2) from a known source
5
United States v. Arvizu, 534 U.S. 299 (2002), effectively overruled United States
v. Wood, 106 F.3d 942 (10th Cir. 1997), regarding Wood's proposition that we pick
through all of the facts the trooper relies on, discard the innocent facts and then see if
there is anything left to support a reasonable articulable suspicion. Id. at 947. We must
look at the totality of the facts, the innocent with the incriminating, in our reasonable
articulable suspicion analysis.
6
“[U]nusual travel plans may provide an indicia of reasonable suspicion.” Wood,
106 F.3d at 946-47; see Sokolow, 490 U.S. at 9 (forty-eight hour stay in Miami after a
twenty-four hour flight from Honolulu was unusual and supported reasonable suspicion).
-10-
city for illegal drugs, Illinois v. Gates, 462 U.S. 213, 243 (1983), 7 3) Douglas’
inability to provide details about the trip, Wood, 106 F.3d at 947, 4) the
inexplicable presence of a strong chemical odor, United States v. Ozbirn, 189
F.3d 1194, 1200 (10th Cir. 1999), 8 5) the presence of a potential masking agent in
the form of two cologne bottles, West, 219 F.3d at 1178-79, and 6) a passenger
with a criminal record, United States v. Santos, 403 F.3d 1120, 1132 (10th Cir.
2005), 9 who became increasingly confrontational as the stop progressed. Viewing
the totality of the circumstances, Bradford, 423 F.3d at 1157, we agree with the
district court that all of the factors in this case gave rise to reasonable suspicion
of illegal activity warranting the call for a drug dog. 10 Given the presence of
7
But see Williams, 271 F.3d at 1270 (traveling from a source city, standing alone
is “at best, a weak factor in finding suspicion of criminal activity”).
8
We afford this factor less weight in this case than we might otherwise because
Trooper Heim could not identify the smell as consistent with a specific illegal substance.
See United States v. Sweeney, 688 F.2d 1131, 1137 (7th Cir. 1982) (officer must be able
to identify odor to establish probable cause for a search warrant). However, an
unexplained strong caustic chemical smell emanating from a vehicle may support a
general suspicion that the occupant is transporting illegal materials of some form.
Coupled with other factors, it could amount to probable cause.
9
“[I]n conjunction with other factors, criminal history contributes powerfully to
the reasonable suspicion calculus.” Santos, 403 F.3d at 1132. Standing alone, however,
we accord this factor little weight, lest “any person with any sort of criminal record . . .
could be subjected to a Terry-type investigative stop by a law enforcement officer at any
time without the need for any other justification at all.” Sandoval, 29 F.3d at 543.
10
We note three additional factors advanced by the government as supporting
reasonable suspicion: both Douglas and Seymour were wearing a suit and tie, they had a
radar detector in their rental car, and Seymour was unfamiliar with the term “blunt” in
spite of his criminal record. Wearing a suit and tie may be unusual attire for a cross-
-11-
reasonable suspicion of illegal activity, a thirty-minute delay to await the arrival
of the drug dog was not unreasonable. See U nited States v. Villa-Chaparro, 115
F.3d 797, 802-03 (10th Cir. 1997) (thirty-eight minute w ait for drug dog held
reasonable).
A FFIRME D.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
country trip. Trooper Heim testified only that “we don’t see that much when people are
driving” cross-country and “[w]e have encountered it a couple of times on some
interdiction stops.” (R. Vol. IV at 17-18.) The presence of a radar detector may be a
better indicator of an intent to speed than illegal drug activity. Heim testified that the
presence of a radar detector in a rental car was something he does not “see very often.”
(R. Vol. IV at 12.) See Williams, 271 F.3d at 1269 (finding the presence of a two-way
radio supports a reasonable suspicion of criminal activity when there was testimony the
officer knew from experience that drug traffickers travel in tandem and sometimes use
such radios to avoid detection by law enforcement personnel). Seymour’s professed
unfamiliarity with the term “blunt,” is significant only based on Heim’s assumption that
individuals with criminal histories have a general familiarity with drug terminology.
There was no evidence in the record to support this assumption, and Seymour was by all
accounts truthful about his criminal history. Those facts may, individually or in
combination, be entitled to little weight, but they are necessarily part of the calculus and
cannot be categorically ignored. See supra, note 5.
-12-