United States v. Elbert Johnson ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3010
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Elbert L. Johnson, *
*
Appellant. *
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Submitted: January 15, 2002
Filed: March 27, 2002
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Before LOKEN, RICHARD S. ARNOLD, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
After Elbert L. Johnson was discovered transporting more than 2,200 pounds
of cocaine, he was prosecuted and convicted by a jury of conspiracy to distribute
cocaine, 21 U.S.C. §§ 841(a)(1), 846, and possession with intent to distribute,
§ 841(a)(1). He was sentenced by the district court1 to thirty years. On appeal, he
argues that his Fourth Amendment rights were violated by the search of his truck at
1
The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.
a weigh station and that there was insufficient evidence to support his convictions.
We affirm.
The case against Johnson began after he stopped at a truck weigh station on an
interstate highway near Hope, Arkansas in the early hours of September 18, 2000.
Arkansas Highway Police officer Tim Choate was on duty at the station, and he asked
Johnson to come inside with his paperwork. The other driver of the tractor trailer,
Joseph Heck, remained in the sleeper portion of the truck.
Federal regulations require commercial vehicle operators to keep a logbook
recording travel time, departure and destination points, and each driver's on duty time.
The logbook must contain complete information for the current day and the previous
seven days. Choate discovered that Johnson's logbook was missing information for
the first three days of the period and contained incomplete entries for the remainder.
Johnson explained that he had been off duty in Tulsa, Oklahoma during the missing
days.
Choate asked Johnson what he was transporting and where the load was going.
Johnson replied that the truck was loaded with honeydew melons, but that he was
unsure of its destination, stating that it was "someplace in Connecticut or in
Maryland." The shipping papers listed the town of Jessup, Maryland as the
destination with no street address.
Choate noticed that Johnson's logbook showed he had started the trip in
Bakersfield, California, and he asked Johnson how he got there. Johnson replied that
he had flown out from Tulsa to Bakersfield to meet the truck. The logbook also
showed the truck had made a stop in El Paso, Texas. El Paso is several hundred miles
off a direct route from the starting point in California to Maryland or Connecticut, as
is the highway on which the weigh station was located. When Choate asked Johnson
why he had chosen to take such an indirect route, Johnson became evasive and did
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not answer. Choate then performed a routine driver license and criminal history
check, which revealed that Johnson had a number of drug related convictions on his
record.
Choate walked out to the truck to perform a safety inspection on the load, and
Johnson accompanied him. Choate noticed several unusual things about the locks on
the truck. The main lock was of a type impervious to bolt cutters, and the truck's vent
door, a small door permitting inspection of the load, was locked. Choate had more
than twelve years of law enforcement experience but had never before seen a lock like
the main lock and had never known a vent door to be kept locked. He asked Johnson
to open the locks, and Johnson went over to the truck to get the keys from Heck.
Choate observed him whispering something to Heck but could not hear it. Heck
testified later that Johnson had said, "If I was you, I think we're caught, I'd run."
Johnson had told Choate that the entire load of produce on the trailer was on
pallets. When Choate climbed up to inspect the load, however, he noticed a large
number of boxes on the floor of the trailer. Johnson explained that he had moved the
boxes in order to redistribute the weight on the trailer's axles, but it appeared to
Choate that the boxes had been merely taken off the pallets rather than moved around.
The pile of boxes was sufficient to fill three or four pallets, but Choate noticed only
one empty pallet. When Choate started to move some of the boxes around, Johnson
jumped up into the truck and moved a load lock into place against the boxes. That
action did not appear necessary to Choate, and he asked Johnson whether he had
anything illegal in the truck. Johnson replied, "Nothing here you need to see."
Choate and Johnson returned to the weigh station, and Choate called for
assistance from another Arkansas Highway Police officer who was located at a
second weigh station on the other side of the highway. Choate later testified that he
made the call because he had become suspicious of illegal activity and concerned for
his safety. It took the other officer approximately five minutes to arrive. Meanwhile,
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Choate asked Johnson for written consent to search the truck and trailer. Johnson
asked why, and Choate informed him that he wanted to search for drugs. Johnson
signed a "Consent to Search" form, and Choate testified that Johnson and he had
discussed the form and Johnson had read it before signing. At this point Choate still
retained Johnson's keys, driver license, and other papers.
After the second officer arrived, Choate began to search the trailer. He found
a box containing plastic wrapped bricks, one of which field tested positive for
cocaine. Johnson and Heck were then arrested. The search uncovered 40 boxes
containing approximately 1,000 bricks of 82% pure cocaine weighing 2,213 pounds.
The officers also discovered more than $10,000 in currency in the cab of the truck
and more than $3,000 on Johnson's person.
At Johnson's initial appearance in state court, after having been advised of his
rights under Miranda v. Arizona, 384 U.S. 486 (1966), he made a voluntary statement
declaring: "I know I was wrong for what I did and I am willing to pay for what I did."
Johnson was subsequently charged in a federal indictment with one count of
conspiracy to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), 846,
and one count of possession with intent to distribute. §§ 841(a)(1),
841(b)(1)(A)(ii)(II).2
Before trial Johnson moved to suppress all of the evidence discovered during
the weigh station stop. He claimed that Choate had neither a warrant nor probable
cause to detain him and search his truck and that the written consent to search was not
voluntary. The court denied his motion, finding that Johnson had been lawfully
detained in a regulatory stop and that Choate had "developed a reasonable, articulable
2
Johnson was charged with a third count of conspiracy to distribute cocaine
through the use of a cellular telephone, in violation of 21 U.S.C. § 843. This count
was later dismissed by the government.
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suspicion of criminal activity" through his interaction with Johnson. This permitted
Choate to continue the detention and to search the truck. It also found that Johnson
made a valid written consent to search.
At trial, the jury heard evidence regarding the company listed on the bill of
lading, which was J&B Trucking. J&B was owned by Johnson, and a former
employee testified that the company paid all of its bills with cash or money orders.
The name "Angela Billingslea" was placed on all paperwork, including the title to the
trailer in which the cocaine had been transported, and Johnson routinely signed
documents with this name. The employee also testified that Johnson came into the
office only about 30 minutes a week and only drove a truck once during the eight
month period of her employment.
The defense called Joseph Heck as an adverse witness. Heck testified that he
had begun working for Johnson in February 2000. In September 2000, Johnson
directed Heck to pick up a load of honeydew melons in Woodland, California. From
there, Heck drove to Bakersfield where he met Johnson, and the two continued to El
Paso. Along the way they rearranged the melons in the truck in order to create an
igloo shaped space for a load Johnson said they would add in El Paso. Heck testified
that he saw Johnson meet with several Hispanic men after they arrived in El Paso.
Afterwards Heck and Johnson drove the truck to a building which was surrounded by
two sets of gates topped by barbed wire. Once inside they donned cloth work gloves
and loaded forty cardboard boxes into the truck which Johnson said were destined for
Chicago. After leaving El Paso, Johnson made several cellular phone calls during
which Heck heard him say "We're on time" and "She's on board." Heck was to have
received $5,000 for his work on the trip, but he testified that after they were arrested,
Johnson offered him $50,000 to "take the rap."
Johnson attacked Heck's testimony as self interested and motivated by his plea
bargain. His theory of defense was that Heck had the cocaine loaded in California
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without his knowledge. He also presented an expert witness, transportation broker
David Dwinell, who had examined the truck's weigh station scale receipts. Dwinell
testified that the total weight of the truck had not varied by more than 1,000 pounds
between California and Arkansas. Because the cocaine weighed more than 2,200
pounds, Dwinell concluded that it could not have been loaded in El Paso as Heck had
claimed. One of the receipts most important to Dwinell's calculations was dated
September 16, the day before the cocaine was loaded in El Paso according to Heck.
In rebuttal the government called the accountant at the truck stop where the receipt
had been printed, who testified that the date on the receipt was wrong and that it had
in fact been printed on September 17.
Johnson moved for acquittal at the conclusion of the government case and
again at the end of all of the testimony. The motions were denied, and Johnson was
convicted on both counts. The court sentenced him to concurrent thirty year prison
terms, a $25,000 fine, and five years of supervised release.
Johnson appeals on two grounds. He contends that the court erred in denying
his motion to suppress the evidence obtained from the weigh station search of the
truck. He further argues that he is entitled to an acquittal because there was
insufficient evidence. We review the district court's legal conclusions de novo and
its factual findings for clear error. United States v. Newton, 259 F.3d 964, 966 (8th
Cir. 2001).
Johnson concedes the validity of the initial weigh station stop and inspection,
but he argues that his detention was unjustly extended in violation of his Fourth
Amendment rights and that the evidence seized as a result must be suppressed. He
also contends that because his continued detention was illegal, his written consent
was not valid. It is undisputed that Johnson's stop at the weigh station started as a
routine examination for compliance with federal and state safety and hauling
regulations. See, e.g. Ark. Stat. Ann. § 23-13-217. Cf. United States v. Burch, 153
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F.3d 1140, 1141 (10th Cir. 1998) (upholding the validity of a routine commercial
vehicle safety inspection under state law). The law may permit a longer detention
under certain circumstances. An officer who develops a reasonable, articulable
suspicion of criminal activity may expand the scope of an inquiry beyond the reason
for a traffic stop and detain a vehicle and its occupants for further investigation.
United States v. Poulack, 236 F.3d 932, 935-36 (8th Cir. 2001), cert. denied, __ U.S.
__, 122 S. Ct. 148 (2001). Whether an officer had reasonable suspicion to expand the
scope of a stop is determined by looking at "the totality of the circumstances, in light
of the officer's experience." Id. at 936 (quoting United States v. Carrate, 122 F.3d
666, 668 (8th Cir. 1994)). See also United States v. Morgan, 270 F.3d 625, 631 (8th
Cir. 2001) (Fourth Amendment is not violated if officer had reasonable suspicion to
detain a vehicle for the length of time necessary to investigate).
At the hearing on the motion to suppress, Officer Choate cited a number of
facts causing him to continue to detain Johnson. These included incomplete logbook
entries, Johnson's confusion as to his final destination, and the incomplete address in
the bill of lading. The truck's route, several hundred miles longer than necessary, was
particularly noteworthy to Choate. Produce spoils easily and is generally transported
as directly as possible. Johnson's trip also included a plane flight and seemed
unusually costly in light of the typically low profit margin of commercial trucking.
Johnson became evasive when asked about the route, and Choate noted the whisper
to Heck, Johnson's criminal history involving drugs, and his comment "Nothing here
you need to see." Choate also observed the unusual locks and Johnson's strange
behavior when he got in the truck. Taken together, these facts generated the
reasonable suspicion of criminal activity necessary to justify Johnson's continued
detention. His written consent to the search was therefore not obtained through an
illegal detention.
The two Fifth Circuit cases cited by Johnson are not in conflict with this
conclusion, see United States v. Dortch, 199 F.3d 193 (5th Cir. 1999), corrected on
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denial of reh'g, 203 F.3d 883 (5th Cir. 2000), and United States v. Jones, 234 F.3d
234 (5th Cir. 2000). This case is unlike Dortch and Jones, for here grounds for
reasonable suspicion were generated in the course of the initial questioning and safety
inspection and were sufficient to justify detaining Johnson beyond the conclusion of
the inspection. We conclude that Johnson's Fourth Amendment rights were not
violated and that the district court did not err by denying the motion to suppress.
Johnson contends that the government did not present evidence sufficient to
show that he knowingly possessed cocaine with the intent to distribute it or that he
had any knowledge of a conspiracy to distribute cocaine or that cocaine was in the
truck. A conviction for possession to distribute a controlled substance requires that
the government prove beyond a reasonable doubt that the defendant knowingly
possessed and intended to distribute a controlled substance. 18 U.S.C. 841(a)(1);
United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 (8th Cir. 2001). A
conviction for conspiracy to distribute drugs requires proof of an agreement between
the defendant and at least one other person to engage in the distribution of drugs.
United States v. Miller, 91 F.3d 1160, 1162 (8th Cir. 1996), including proof that the
defendant knew about the agreement and knowingly became a part of the conspiracy.
United States v. Ivey, 915 F.2d 380, 383-84 (8th Cir. 1990).
We review de novo the sufficiency of the evidence to support a conviction.
Evidence is sufficient if any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. United States v. Sanchez, 252 F.3d
968, 972 (8th Cir. 2001). We view the evidence in the light most favorable to the
verdict, drawing all reasonable inferences and resolving all conflicts in its favor. Id.
Proof of constructive possession is sufficient to prove the element of knowing
possession, that is proof of ownership or control over the drugs or the area in which
they are concealed. Gonzalez-Rodriguez, 239 F.3d at 951 (quoting United States v.
McCracken, 110 F.3d 535, 541 (8th Cir. 1997)). The jury was presented with ample
evidence that Johnson was aware of the cocaine in the truck and was transporting it
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as part of an agreement to distribute it. It was up to the jury to weigh the evidence
which was more than sufficient to support its verdicts.
Accordingly, we affirm the judgment of the district court.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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