106 F.3d 942 (10th Cir. 1997), 96-3141, United States v. Wood

Docket Nº:96-3141.
Citation:106 F.3d 942
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Terry L. WOOD, Defendant-Appellant.
Case Date:February 07, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 942

106 F.3d 942 (10th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Terry L. WOOD, Defendant-Appellant.

No. 96-3141.

United States Court of Appeals, Tenth Circuit

February 7, 1997

Page 943

Robert V. Eye (Pedro L. Irigonegaray and Elizabeth R. Herbert, with him on the briefs), Topeka, KS, for Defendant-Appellant.

James E. Flory (Jackie N. Williams, United States Attorney, and Randy M. Hendershot, Assistant United States Attorney, with him on the brief), Topeka, KS, for Plaintiff-Appellee.

Before BALDOCK, KELLY and LUCERO, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Terry Wood appeals from the district court's denial of his motion to suppress evidence

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discovered during a search of his car. He argues that the officer who conducted the search did not have the reasonable suspicion required by the Fourth Amendment as a predicate for the seizure which preceded the search. We exercise jurisdiction under 28 U.S.C. § 1291, and reverse.

Background

On March 31, 1995, Kansas Highway Patrol Trooper Richard Jimerson stopped Mr. Wood on Interstate 70 for speeding. Mr. Wood pulled over immediately when signaled to do so. The trooper approached the car and, as he stood at the driver's side window, noticed trash on the floor, including sacks from fast-food restaurants, and open maps in the passenger compartment. He also determined that Mr. Wood was "extremely nervous"; his breathing was rapid, his hands trembled as he handed over his driver's license, and he cleared his throat several times. Trooper Jimerson saw that the car had a phone with a credit card reader and surmised that the car was rented. When asked, Mr. Wood confirmed that he had rented the car, and produced the rental papers. Trooper Jimerson asked where Mr. Wood had rented the car, and was told San Francisco. The trooper told Mr. Wood that he had been stopped for speeding, and then returned to the patrol car to fill out a warning citation.

Trooper Jimerson initiated a computer check on Mr. Wood's driver's license as well as a criminal history check. He examined the rental papers, which reflected that the car had been rented in Sacramento. Upon observation of this discrepancy, the trooper asked Mr. Wood to join him in the patrol car.

Trooper Jimerson asked Mr. Wood about the discrepancy between the rental locations. Mr. Wood promptly corrected his error, and confirmed that the car had indeed been rented in Sacramento. The trooper had also noted that the rental papers indicated that the car was due back in Sacramento the following day, and asked Mr. Wood about his travel plans. Mr. Wood informed the trooper that he was traveling in the car only one way, and that the rental company was aware of his plans. Mr. Wood explained that he had flown with his sister to Sacramento on a vacation, and that she had returned by plane to Topeka while he chose to drive to enjoy the scenery. While awaiting the results of the computer checks, Trooper Jimerson and Mr. Wood engaged in casual conversation. Mr. Wood revealed that he was an unemployed painter but that he expected to return to work in about six weeks. The two discussed Mr. Wood's vacation, and the good rate Mr. Wood had received on the rental car. While Mr. Wood was in the patrol car, the trooper simultaneously received the results of the two computer checks, which indicated that Mr. Wood had a valid driver's license and a narcotics history. The trooper asked Mr. Wood if he had ever been arrested, and Mr. Wood acknowledged his 1984 arrest for drugs. The trooper asked if the arrest was for a misdemeanor, and was told it was for a felony.

Trooper Jimerson then completed the warning ticket, returned the driver's license and rental papers to Mr. Wood, and told him he was free to go. As Mr. Wood began to exit the patrol car, the trooper inquired if he could ask him a few questions; Mr. Wood's reply was equivocal. Trooper Jimerson asked if Mr. Wood had any narcotics or weapons, and was told no. The trooper asked Mr. Wood if he would consent to a search of his car, and was again told no. At this point, eight to ten minutes after the initial traffic stop, and after having failed to obtain voluntary consent to search, Trooper Jimerson told Mr. Wood that he was detaining the car and its contents in order to subject it to a canine sniff.

The events which transpired after Trooper Jimerson announced his decision to detain the car are not relevant to the issues in this appeal. Suffice it to say, however, the canine team arrived, the dog alerted on the car, the car was searched, and narcotics were found in the trunk.

Mr. Wood moved in the district court to suppress, arguing that the contraband was the fruit of the poisonous tree because Trooper Jimerson did not have reasonable suspicion to detain his car. The district court denied this motion, as well as a subsequent motion for reconsideration. Mr. Wood

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then entered a conditional guilty plea pursuant to Fed.R.Crim.P. 11(a)(2) to possession of over 100 grams of methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

Mr. Wood now appeals the district court's denial of his motion to suppress. Mr. Wood's filing of his notice of appeal after his conditional guilty plea but before sentencing does not disturb our jurisdiction. Fed. R.App. P. 4(b); United States v. Green, 847 F.2d 622, 623-25 (10th Cir.1988) (en banc).

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. Guerrero-Hernandez, 95 F.3d 983, 986 (10th Cir.1996). The ultimate...

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