135 F.3d 1345 (10th Cir. 1998), 97-5087, United States v. Hunnicutt

Docket Nº:97-5087.
Citation:135 F.3d 1345
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Denny Ray HUNNICUTT, Defendant--Appellant.
Case Date:February 09, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1345

135 F.3d 1345 (10th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Denny Ray HUNNICUTT, Defendant--Appellant.

No. 97-5087.

United States Court of Appeals, Tenth Circuit

February 9, 1998

Page 1346

C.W. Hack of Hack & Lundy, P.A., Tulsa, OK, for Defendant-Appellant.

Allen J. Litchfield, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff-Appellee.

Before PORFILIO, TACHA, and KELLY, Circuit Judges.

Page 1347

PAUL KELLY, Jr., Circuit Judge.

Defendant-appellant Denny Ray Hunnicutt was convicted of conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and conspiracy to use or carry firearms during and in relation to the commission of a drug trafficking crime, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He now appeals the district court's denial of his motion to suppress all searches and seizures. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Background

After being indicted by a grand jury, Mr. Hunnicutt moved to suppress various evidence, and his motion was denied. He conditionally pleaded guilty to the two counts referred to above and reserved the right to appeal the denial of his suppression motion. The following facts are recounted in the light most favorable to the government. See United States v. Villa-Chaparro, 115 F.3d 797, 800-01 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 326, 139 L.Ed.2d 252 (1997).

While on patrol during the night of January 7, 1996, Officer Raines of the Glenpool, Oklahoma Police Department turned onto Highway 75 behind a silver BMW driven by Mr. Hunnicutt, who was accompanied by two passengers. Over the course of four or five miles, the officer saw the vehicle weave four or five times across the shoulder line and the center line. He suspected the driver might be driving under the influence of alcohol and decided to stop the vehicle. He turned on the video camcorder in his patrol car and the wireless microphone on his body which recorded the subsequent events. He then turned on his overhead emergency lights. The vehicle pulled off to the shoulder but took about ten to twelve seconds over the course of a half of a mile to slow to a stop.

Mr. Hunnicutt produced a driver's license, but had no insurance verification. The officer asked Mr. Hunnicutt to accompany him to his patrol car where he ran a computer check on the vehicle and driver's license. In response to questioning, he told the officer he was taking a passenger to Muskogee. The computer checks showed the person from whom Mr. Hunnicutt claimed to be purchasing the vehicle was not the registered owner, and Mr. Hunnicutt's license was suspended. In response to further questioning, he denied there were any illegal substances or weapons in the car. He was then arrested for driving under suspension.

Mr. Hunnicutt refused to consent to a search of the car, and a canine unit was requested. A backup officer who had arrived on the scene informed Officer Raines that the passengers appeared extremely nervous and that one of the passengers said they were going to Morris, Oklahoma. Approximately fifteen minutes later, the canine unit arrived. The passengers denied possession of any illegal weapons or contraband; however, upon exiting the vehicle, one of the passengers handed the officer a brown bag, in which he found what appeared to be a large quantity of methamphetamine.

The dog did not alert to the interior or exterior of the car, but did alert to the bag. A search of the car revealed a packet of bindle bags underneath the driver's seat, a banana clip of .22 caliber shells on the console, and financial records. Upon viewing its contents, the backup officer decided to search the trunk at the police station. The officer continued searching the passenger compartment and found a knife between the seats and a loaded .44 magnum revolver on the console. At the police station, officers recovered several additional weapons, narcotics, digital scales, ammunition, drug dealing records, a police scanner, and used and unused syringes.

Mr. Hunnicutt appeals the denial of his suppression motion, arguing that (1) the initial stop was unjustified, (2) further questioning about guns and drugs was unsupported by reasonable suspicion, (3) the canine sniff was beyond the scope of the stop, (4) the canine sniff was outside the purposes of a search incident to arrest, (5) his refusal to consent to a search should not have been considered in determining reasonable suspicion or probable cause, (6) impoundment was improper, and (7) any inventory search was not done pursuant to standardized procedures.

Page 1348

Discussion

When reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous. See United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). Judging the credibility of the witnesses, determining the weight to be given to evidence, and drawing reasonable inferences and conclusions from the evidence are within the province of the district court. See Villa-Chaparro, 115 F.3d at 801. On appeal of a denial of a suppression motion, we consider the totality of the circumstances and view the evidence in the light most favorable to the government...

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