195 F.3d 258 (6th Cir. 1999), 98-6047, USA v Hill

Docket Nº:98-6047
Citation:195 F.3d 258
Party Name:United States of America, Plaintiff-Appellee, v. John Jay Hill and Malcolm Scott Hill, Defendants-Appellants.
Case Date:October 04, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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195 F.3d 258 (6th Cir. 1999)

United States of America, Plaintiff-Appellee,

v.

John Jay Hill and Malcolm Scott Hill, Defendants-Appellants.

No. 98-6047

United States Court of Appeals, Sixth Circuit

October 4, 1999

Argued: August 11, 1999

Appeal from the United States District Court for the Western District of Tennessee at Memphis; Nos. 96-20039--Julia S. Gibbons, Chief District Judge.

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Paul M. O'Brien, OFFICE OF THE U.S. ATTORNEY, Memphis, Tennessee, for Appellee.

W. Thomas Dillard, Richard L. Gaines, RITCHIE, FELS & DILLARD, Knoxville, Tennessee, for Appellants.

Before: KRUPANSKY, BOGGS, and CLAY, Circuit Judges

W. Thomas Dillard, CLAY, J., delivered the opinion of the court, in which KRUPANSKY, J., joined. BOGGS, J., concurred in the result only.

OPINION

CLAY, Circuit Judge.

Defendants, John J. Hill and Malcolm Scott Hill, appeal from the judgment of conviction entered by the United States District Court for the Western District of Tennessee, following Defendants' conditional guilty plea to one count of possession with intent to distribute cocaine, in violation of 18 U.S.C. § 841(a)(1), wherein Defendants reserved the right under Federal Rule of Criminal Procedure 11(a)(2) to appeal the district court's order denying their motion to suppress the evidence seized from Defendants' U-Haul Rental Truck on February 23, 1996, pursuant to a traffic stop. For the reasons set forth below, the district court's order denying Defendants' motion to suppress is AFFIRMED.

BACKGROUND

On the evening of February 23, 1996, Deputy Steve Whitlock of the Shelby County, Tennessee, Sheriff's Department Interstate Interdiction Unit was on routine patrol on I-40 in Shelby County. Deputy Whitlock had his patrol car positioned where I-40 and I-240 merge, when he noticed a 1996 Ford U-Haul traveling eastbound on I-40 while in the process of navigating a large curve in the interstate. According to Deputy Whitlock, the U-Haul was not speeding at the time. Nonetheless, Deputy Whitlock pulled out behind the U-Haul after it made the turn, to determine whether the driver of the U-Haul engaged in a traffic violation because, as an experienced interdiction officer, Deputy Whitlock was aware that U-Haul trucks were often used to used to transport narcotics. In Deputy Whitlock's words, he pulled out after the vehicle because it was a U-Haul, and because it had been his experience that U-Hauls carry narcotics.

Traveling in his patrol car, Deputy Whitlock then caught up to the U-Haul which was now traveling northbound on I-40. Deputy Whitlock paced himself behind the U-Haul by traveling four to five car lengths behind it for about three-fourths of a mile. When the speed of Deputy Whitlock's vehicle and the speed of the U-Haul were the same, Deputy Whitlock checked his certified speedometer, which showed a reading of sixty-two miles per hour. Although Deputy Whitlock's vehicle was equipped with radar, he was unable to clock the speed of the U-Haul using the radar equipment inasmuch as the two vehicles were traveling in the same direction. Because the speed limit on I-40 in that area is fifty-five miles per hour, Deputy Whitlock stopped the driver of the U-Haul at the Watkins Road exit for speeding.

The driver of the U-Haul was Defendant John Hill. Deputy Whitlock exited his patrol car, approached the driver's side of the U-Haul, and asked John for his driver's license. John produced a Florida driver's license; Deputy Whitlock informed him of the reason for the stop; and asked John to exit the U-Haul and step to the back of the vehicle so that Deputy Whitlock would be clear from the heavy traffic flow. Deputy Whitlock noticed that John's hands were shaking "uncontrollably" at the time John handed his license to Deputy Whitlock. John's brother, and co-defendant in this case, Malcolm Scott

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Hill ("Scott"), remained seated in the passenger seat of the U-Haul.

Once out of the vehicle, Deputy Whitlock questioned John about his travel plans, to which John replied that his sister was in the military and had been transferred to Pennsylvania, so he and Scott were moving their sister's belongings from Irvine, California to Scranton, Pennsylvania. Deputy Whitlock, who had been in the military himself, found it unusual that John and Scott would be moving their sister's belongings, inasmuch as it had been Deputy Whitlock's experience that people in the military who were transferred to another location usually had their moving arrangements handled by the military. Deputy Whitlock asked John about his sister's whereabouts at the time, and John replied that she had flown to Scranton about one month earlier. Deputy Whitlock described John's statements made during this colloquy as "very deliberate as if it was rehearsed on what he was supposed to be telling me as to the destination and the reason for their trip." Deputy Whitlock then asked John where he and Scott were from, to which John replied that they were from Florida, and that the two had flown to California to assist their sister.

Deputy Whitlock asked John to be seated in the patrol car so that Deputy Whitlock "could write the ticket, check [John's] driver's license, and also [because] it was kind of windy that night, and it was hard to hear due to all the traffic." Once inside the vehicle, Deputy Whitlock continued to question John about his travel plans as Deputy Whitlock completed John's "courtesy" citation. John informed Deputy Whitlock that he was not sure how long he and Scott were going to remain in Scranton, inasmuch as their sister was married and they just needed to help her "offload," and then they could leave.

Deputy Whitlock then returned to the U-Haul to obtain the rental agreement for the truck from Scott. When asked by Deputy Whitlock about his travel plans, Scott stated that he and John were moving their sister to Scranton, Pennsylvania, and that once they got there they were going to stay approximately three or four days to help her unload and to get settled before they flew back to Florida. Scott produced the rental agreement for Deputy Whitlock; the agreement was in Scott's name; it indicated that the truck had been rented on February 19, 1996; and next to the amount tendered on the rental receipt were the initials "CA," which Deputy Whitlock interpreted to mean that Scott had paid for the rental in cash. According to Deputy Whitlock, the significance of the "CA" notation is that it had been his experience that drug dealers commonly pay for everything in cash. Deputy Whitlock later testified that the fact that the truck had been rented on February 19, just four days before the night in question, aroused his suspicion inasmuch as John had told Deputy Whitlock that his sister had moved to Pennsylvania a month beforehand. As Deputy Whitlock spoke with Scott, he noticed a large amount of used Kleenex on the floorboard of the truck. This also aroused Deputy Whitlock's suspicion inasmuch as it had been his experience that people who "snort" cocaine constantly have a "runny" nose which requires constant wiping.

Deputy Whitlock returned to the patrol car and, while waiting for verification of John's driver's license, asked John to sign the "courtesy" citation. Deputy Whitlock then asked John if he and Scott had helped their sister load the U-Haul, to which John answered in the affirmative. Then, when Deputy Whitlock "confronted [John] with the fact that [his sister] had been gone a month, . . . he became somewhat confused and stuttered for a minute and changed his story, saying that she had just laid it out on how they were supposed to load the truck." Deputy Whitlock asked John if he could search the U-Haul, but John refused. The verification of John's license came back and indicated that John's license was valid with no restrictions. At that point, Deputy Whitlock decided

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to run a canine search using his certified narcotics dog, "Spanky," who was present in Deputy Whitlock's vehicle, and who travels with Deputy Whitlock at all times. Deputy Whitlock later testified that he decided to run the canine search because he had "reasonable suspicion that the possibility of a narcotics transfer was being made due to the fact [of] the inconsistent stories, the nervousness and the demeanor of both subjects." Deputy Whitlock then placed Scott in the patrol car with John, and ran the canine search, which took about one minute to complete. Up until this point, about twelve minutes had passed from the time Deputy Whitlock pulled over the U-Haul.

Spanky gave a "positive" indication for the presence of narcotics by scratching and biting at the part of the U-Haul where the cab meets the box part of the truck. Because of Spanky's response, and Deputy Whitlock's experience with Spanky on other occasions when the canine elicited the same response to the presence of narcotics, Deputy Whitlock believed that narcotics were present in the U-Haul.

At this point, Deputy Kellerhall arrived on the scene and Defendants were placed in Deputy Kellerhall's vehicle. The Deputies searched the cab of the U-Haul, and no narcotics were found; however, the search did turn up a large number of keys in a bag behind the rear seat. The Deputies assumed that one of the keys would unlock the lock on the rear door of the truck; however, none of the keys worked, so the Deputies cut the lock with bolt cutters. In the meantime, Deputy Segerson arrived on the scene with his certified narcotics canine, "Oz;" the canine did a search of the U-Haul and reacted positively to the same area to which Spanky had reacted positively.

Once the lock was cut from the rear door of the U-Haul, the Deputies began their search of the...

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