U.S. v. Anderson, 96-3221

• Citation: 114 F.3d 1059
• Decision Date: 30 May 1997
• Docket Number: No. 96-3221,96-3221
• Parties: 97 CJ C.A.R. 804 UNITED STATES of America, Plaintiff--Appellee, v. Anthony E. ANDERSON, Defendant--Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1059

114 F.3d 1059

97 CJ C.A.R. 804

UNITED STATES of America, Plaintiff--Appellee, v. Anthony E. ANDERSON, Defendant--Appellant.

No. 96-3221.

United States Court of Appeals,

Tenth Circuit.

May 30, 1997.

Derek M. Wright, Atlanta, GA, for Defendant-Appellant.

James E. Flory (Jackie N. Williams, United States Attorney, and T.G. Luedke, Assistant United States Attorney, on the brief), Topeka, KS, for Plaintiff-Appellee.

Before ANDERSON, TACHA, and BRORBY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Defendant Anthony Anderson was indicted on September 20, 1995, for knowingly possessing with intent to distribute approximately six kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). His motion to suppress evidence and his motion for discovery were denied by the district court. He then pleaded guilty to the offense, reserving the right to appeal the denial of his motion to suppress, and received a 120-month prison sentence. We affirm.

BACKGROUND

On April 8, 1995, Mr. Anderson was driving a Chevy Suburban, with California license plates, eastbound on Interstate 70 in Saline County, Kansas. Because of construction on the Interstate, traffic going each direction was routed into a single lane. At approximately 11:20 a.m., Kansas Highway Patrol Trooper David Heim observed the Chevy Suburban traveling eastbound in the single lane of traffic. As recorded by the video-audio tape running in Trooper Heim's police car, ¹ the officer believed the Suburban was being operated in violation of Kansas vehicular laws because it was following too closely the car in front of it. ² Trooper Heim pulled the Suburban over. He told the driver, Mr. Anderson, that he had stopped him because he was "less than a second off the vehicle that was in front of you." Tr. of Videotape at 1, Appellant's App. Tab VT. During the course of the stop, Mr. Anderson essentially admitted that he had been following the car in front too closely. ³

The trooper asked Mr. Anderson if the car belonged to him, to which Mr. Anderson responded that it was his uncle's car. Trooper Heim then asked Mr. Anderson to step out of the vehicle and sit in the officer's patrol car. The female passenger in the Suburban remained in the vehicle. When Mr. Anderson left the Suburban, Trooper Heim noticed he was wearing a pager. Mr. Anderson and the trooper sat inside the officer's patrol car.

Trooper Heim asked for and received Mr. Anderson's driver's license and vehicle registration papers. A computer check indicated all were valid. When asked where he was OFFICER [HEIM]: Oh, where's that at?

                going, Mr. Anderson said that he was going to visit a nephew in Ohio.  Trooper Heim returned to the Suburban to check its vehicle identification number, and, while there, asked the female passenger, later identified as Francina Herd, where they were driving.  She stated "Oh, well, he's going to see about a job at J.B. Hunt and Company."  Id. at 3.   The following interchange then occurred
                

PASSENGER: I'm not sure.

OFFICER [HEIM]: You don't know where you guys are going?

PASSENGER: Well, we're going through--I guess we're going through Alabama.

OFFICER [HEIM]: Uh-huh.

PASSENGER: And--I'm not sure. You'll have to ask him, all I'm doing is riding.

OFFICER [HEIM]: Oh. Who are you to him?

PASSENGER: I'm his girlfriend.

Id. at 4. While talking to Ms. Herd, Trooper Heim noticed a cellular phone, a radar detector and a CB radio in the Suburban and detected the scent of air fresheners.

Trooper Heim then returned to his patrol car and began writing a warning citation. He told Mr. Anderson that he could return to his car, and Mr. Anderson replied, "Oh, that's okay. I'll just--you know, because I'm applying for (inaudible). I'm applying with J.B. Hunt." Id. Mr. Anderson remained in the patrol car. Trooper Heim asked for another officer to come to his location as back-up, telling the dispatcher that "[t]he traffic is kind of heavy behind me, kind of keep them off of me." Id. at 5. The trooper and Mr. Anderson then discussed the traffic violation, and the officer asked Mr. Anderson how long they were going to be on their trip, to which Mr. Anderson responded they would probably be gone "to next weekend .... probably about six more days." Id. at 6.

When he finished writing the citation, Trooper Heim returned Mr. Anderson's driver's license and registration papers. He told Mr. Anderson the citation was "just a written warning." Id. at 7. The officer then asked Mr. Anderson if he was carrying any narcotics. Mr. Anderson responded that he was not. The officer asked if he could search the Suburban, stating "[w]e got a lot of drugs coming out of California." Id. Mr. Anderson answered, "Yeah, well, we're not drugs (sic). I'm a commercial truck driver and I'm trying to apply with J.B. Hunt in Arkansas, so ⁴--and she's 45 years old. And you can--if you want to scout around, fine." Id. Both the officer and Mr. Anderson got out of the patrol car.

During his search of the car, Trooper Heim noticed missing screws in the back of the Suburban, and the floor "built up." Id. at 8. When he had difficulty opening the tailgate, Mr. Anderson assisted him in trying, unsuccessfully, to open the tailgate. When the trooper looked underneath the vehicle, he noticed fresh paint, new hoses and clamps, and fresh tool marks on and around the gas tank. Mr. Anderson then said, "[W]hat's the--seems to be the problem here? I know what you asked me, but, I mean, you're going on and on. You gave me a warning and that's about it, so--" Id. at 10. When Trooper Heim told Mr. Anderson that there were "bolts and stuff" missing from the car and "fresh tool marks on the gas tank," Mr. Anderson responded, "Oh, that's old. This is an '89 truck. That's all--" and then said, "if you want to look at the carpet, or whatever, help yourself." Id.

After Trooper Heim communicated with the dispatcher, Mr. Anderson asked, "You want me--do you want me to open up the back gate?" Id. at 11. When Trooper Heim indicated he would like it opened, saying "[i]f you can get it open, that would be great," id., Mr. Anderson again assisted the trooper in attempting to open it up.

Trooper Heim then procured a flexible scope from his patrol car and looked inside the gas tank. While apparently looking underneath the car again, with the aid of the flexible scope, "look[ing] through the fender well in the back right tire between the frame Trooper Heim then arrested Mr. Anderson for possession of drug paraphernalia. The Suburban was towed to the highway patrol office and impounded. A search of the gas tank revealed six kilograms of cocaine in a hidden compartment.

                rail and the body itself," Tr. of Mots.  Hr'g at 40, Appellant's App.  Tab T, the trooper observed a trap door in the top of the gas tank.  He told Mr. Anderson that he (the officer) would need to remove the gas tank so he could see what was inside it.  Mr. Anderson protested, saying "Okay, I gave you permission to search the car, that you did....  Now you're going all into another area....  Now you guys going to tear--you're going to dismantle the whole car."   Tr. of Videotape at 14-15, Appellant's App.  Tab VT
                

The district court denied Mr. Anderson's motion to suppress the cocaine, holding (1) the initial stop of Mr. Anderson's vehicle was valid based upon the trooper's observation of a traffic violation; (2) at the time Trooper Heim asked Mr. Anderson if he were carrying narcotics, the encounter was consensual, and, therefore, Mr. Anderson was not unlawfully detained, or, alternatively, Trooper Heim had a reasonable, articulable suspicion justifying the brief detention to ask about narcotics; (3) Mr. Anderson's consent to search the vehicle was voluntary and, by the time Mr. Anderson attempted to withdraw his consent, the trooper had developed probable cause to search the vehicle's gas tank and arrest Mr. Anderson; and (4) Mr. Anderson's discovery requests for information relating to the normal practices of Trooper Heim and his superiors were properly denied as moot. United States v. Anderson, 915 F.Supp. 1146 (D.Kan.1996).

Mr. Anderson argues: (1) the district court clearly erred in holding that Trooper Heim observed Mr. Anderson commit a traffic violation; (2) even assuming the traffic stop was valid, the detention exceeded the scope of the stop; (3) the district court erred in concluding that the encounter became consensual, or, alternatively, that Trooper Heim had a reasonable articulable suspicion justifying the brief detention; (4) the court erred in concluding that Mr. Anderson's consent was voluntary or, if voluntary, the court erred in concluding that the actual search did not exceed the scope of the consent given; (5) the warrantless search of the vehicle's gas tank, after impoundment, was unconstitutional; and (6) the denial of Mr. Anderson's request to discover the practices of Trooper Heim and his superior officers was a denial of Mr. Anderson's equal protection rights.

DISCUSSION

When reviewing the denial of a motion to suppress evidence, we view the evidence in the light most favorable to the government and the district court's findings, and we review the district court's factual findings only for clear error. United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997); see also United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995) (en banc), cert. denied, --- U.S. ----, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). We review de novo the ultimate determination of reasonableness under the Fourth Amendment. United States v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir.1997). Furthermore, " 'the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge.' " Id. (quoting United States v. Foster, 100 F.3d 846, 849 (10th Cir.1996)).

I. Initial Stop and Detention

A routine traffic stop is a seizure under the Fourth Amendment. Botero-Ospina, 71 F.3d at 786....