161 F.3d 1168 (8th Cir. 1998), 98-2432, United States v. Lyton

Docket Nº:98-2432.
Citation:161 F.3d 1168
Party Name:UNITED STATES of America, Appellee, v. Daniel Franklin LYTON, Appellant.
Case Date:December 07, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1168

161 F.3d 1168 (8th Cir. 1998)

UNITED STATES of America, Appellee,


Daniel Franklin LYTON, Appellant.

No. 98-2432.

United States Court of Appeals, Eighth Circuit

December 7, 1998

Submitted Oct. 21, 1998.

Page 1169

David R. Stickman, Omaha, Nebraska, argued (Jeffre L. Thomas and Jennifer L. Gilg, on the brief), for Appellant.

Michael G. Heavican, Assistant United States Attorney, Omaha, Nebraska, argued (Thomas J. Monaghan, on the brief), for Appellee.

Before WOLLMAN, ROSS and BEAM, Circuit Judges.

ROSS, Circuit Judge.

Daniel Franklin Lyton appeals from a judgment of the district court 1 following his conditional guilty plea to possession with the intent to distribute cocaine, in violation of 21 U.S.C § 841(a)(1). We affirm.

In the afternoon of June 28, 1997, after Nebraska State Trooper Wendy Brehm saw a pick-up truck following a camper too closely, she pulled the truck over to the side of the highway. Nathaniel Turner was driving the truck and Lyton was the passenger. In response to Brehm's request, Turner gave her a California driver's license and a Michigan registration indicating the vehicle was registered to a Charles Laird. In response to questioning, Turner told Brehm that the truck belonged to Lyton and that they had been to Las Vegas, Nevada, to celebrate Lyton's birthday and were returning to Detroit, Michigan.

Brehm then questioned Lyton. He told her the truck belonged to his uncle and that he and Turner were going to stop in Las Vegas, but did not because they ran out of

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money. Brehm also asked if there were drugs or weapons in the truck. Lyton said no and invited Brehm to check the truck. Brehm then presented Lyton with a consent-to-search form, which he signed.

Looking underneath the truck, Brehm saw two gasoline tanks and what appeared to be tape on one of the tanks. Trooper Bruce Okamato, who had come to the scene, also looked underneath the truck and saw markings indicating the rear tank had been removed and replaced. After tapping on the tank, he believed it contained something other than fuel. Although the gas gauges showed both tanks were full, Okamato could start the truck using the front tank, but could not start it using the rear tank. Brehm then asked Turner to drive the truck and follow her to a garage so that the tanks could be inspected; he complied. Okamato drove Lyton to the garage...

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