189 F.3d 1194 (10th Cir. 1999), 98-3205, United States v. Ozbirn

Docket Nº:98-3205
Citation:189 F.3d 1194
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TED KENTON OZBIRN, Defendant-Appellant.
Case Date:August 24, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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189 F.3d 1194 (10th Cir. 1999)



TED KENTON OZBIRN, Defendant-Appellant.

No. 98-3205

United States Court of Appeals, Tenth Circuit

August 24, 1999

Appeal from the United States District Court for the District of Kansas. D.C. No. 97-CR-40023-1

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[Copyrighted Material Omitted]

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Submitted on the briefs:[*]

Jackie N. Williams, United States Attorney; Gregory G. Hough, Assistant United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.

Michael G. Katz, Federal Public Defender; Jenine Jensen, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Before BALDOCK, BRORBY and KELLY, Circuit Judges.

BRORBY, Circuit Judge.

Defendant-Appellant Ted Ozbirn challenges his conviction on drug charges, asserting the district court improperly denied his motion to suppress evidence seized during a traffic stop. He claims the officers lacked sufficient grounds to stop him and that his continued detention violated his Fourth Amendment rights. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.


On January 20, 1997, Mr. Ozbirn was driving a motor home on Interstate Highway 35 in Osage County, Kansas. Co-defendant James Feldman accompanied Mr. Ozbirn as a passenger in the vehicle. Kansas State Trooper Brian K. Smith noticed the motor home as it passed along the highway, and began to follow and observe the vehicle. After traveling behind the motor home for several minutes, Trooper Smith watched it drift onto the shoulder twice in less than a quarter of a mile. Concerned the driver might be falling asleep or otherwise impaired, Trooper Smith stopped the motor home to investigate and issue a warning ticket for failing to maintain a single lane of travel.

Approaching the side door on the passenger side of the motor home, Trooper Smith encountered Mr. Ozbirn exiting the vehicle. He asked Mr. Ozbirn for his driver's license and vehicle registration. As Mr. Ozbirn went back inside the motor home to get the requested documents, Trooper Smith testified he could smell the odor of raw marijuana emanating from inside. However, he did not immediately enter the motor home to investigate, but instead waited for Mr. Ozbirn to return with his license and registration. Trooper Smith then took Mr. Ozbirn to his patrol car to issue him a written warning ticket for failing to maintain a single lane of travel.

After Trooper Smith finished issuing the warning, he asked Mr. Ozbirn if he could ask him a few more questions. Mr. Ozbirn agreed, and Trooper Smith asked whether he was hauling any illegal guns, drugs, weapons, or other contraband. Mr. Ozbirn told him he was not and then invited Trooper Smith to look inside the motor home if he wanted. Having received Mr.

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Ozbirn's consent, Trooper Smith entered the vehicle to conduct a search. He went to the back of the motor home where the smell of marijuana was strongest, and eventually discovered packets of marijuana hidden under a bed frame. Trooper Smith then arrested Mr. Ozbirn and the passenger, Mr. Feldman. A later custodial search of the motor home yielded additional amounts of marijuana hidden in a closet. In all, the officers discovered 863 pounds of marijuana inside the vehicle.

An indictment charged both Mr. Ozbirn and Mr. Feldman with possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. Before trial, Mr. Ozbirn, joined by Mr. Feldman, moved to suppress the evidence seized from the search of the motor home arguing: (1) Trooper Smith lacked probable cause to believe he committed a violation of Kansas law, thereby invalidating the stop from the beginning; and (2) if the officer stopped him based on reasonable suspicion that he was distracted, sleepy or otherwise impaired, then the officer unlawfully subjected him to further questioning after he accomplished the initial purpose of the stop. The district court denied the motion, finding Trooper Smith reasonably believed he had probable cause to stop and cite Mr. Ozbirn for a traffic violation. The court also ruled that because probable cause supported the stop, it was unnecessary to address Mr. Ozbirn's alternative argument that Trooper Smith detained him too long after he determined he was alert and able to drive. The case proceeded to trial, and a jury convicted Mr. Ozbirn and Mr. Feldman on both charges.

On appeal, Mr. Ozbirn argues (1) the district court should have suppressed the evidence seized from the motor home because the circumstances did not give Trooper Smith...

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