U.S.A. v. Smith, 00-5177

Citation263 F.3d 571
Decision Date03 May 2001
Docket NumberNo. 00-5177,00-5177
Parties(6th Cir. 2001) United States of America, Plaintiff-Appellant, v. Steven Eugene Smith, Defendant-Appellee, Randy Ray Smith, Defendant. Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Middle District of Tennessee at Nashville, No. 99-00170, Thomas A. Higgins, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Van S. Vincent, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellant.

Michael J. Flanagan, Nashville, Tennessee, for Appellee.

Before: NORRIS and COLE, Circuit Judges; HOLSCHUH, District Judge. *

OPINION

HOLSCHUH, District Judge.

The government appeals the district court's decision granting Defendant Steven Eugene Smith's motion to suppress evidence obtained as the result of a traffic stop. On appeal, the government contends that the district court committed two errors. First, the government argues that the district court erred in concluding that Smith had standing to challenge the search of the rental vehicle he was driving. Second, the government argues that the district court erred in deciding that the officer who stopped Smith did not have reasonable suspicion to detain Smith after the completion of the traffic stop. For the reasons set forth herein, we AFFIRM the district court order granting Smith's motion to suppress.

I. BACKGROUND

On May 13, 1999, Steven Eugene Smith and Randy Ray Smith were traveling eastbound on Interstate 40 through Dickson County, Tennessee, in a white Chevrolet Malibu rental car. Steven Smith was driving the vehicle and Randy Smith was in the front passenger seat. Officer Chris Fulcher of the 23rd Judicial Drug Task Force was parked on Interstate 40 observing eastbound traffic. In his patrol car, Officer Fulcher had a trained drug detection dog named Lacy.

Around 4:30 a.m., Officer Fulcher observed the Smiths' vehicle traveling at a rate which he perceived to be higher than the posted 70 miles per hour speed limit. Officer Fulcher began following the vehicle, but did not use his radar to ascertain its speed. After observing the vehicle cross onto the shoulder of the road twice within approximately 200 yards, Officer Fulcher stopped the vehicle for failure to maintain lane control.

After stopping the vehicle, Officer Fulcher approached the driver's side of the vehicle. He testified that he suspected that the occupants were driving a rental vehicle. At the suppression hearing, he could not recall if there were markings on the vehicle which indicated that it was a rental, but he stated that rental vehicles are usually white, four-door and untinted, such as this vehicle. When Officer Fulcher arrived at the driver's window, Steven Smith already had the rental agreement out for Officer Fulcher's review. Officer Fulcher asked to see Steven's driver's license.

Officer Fulcher noticed the passenger, Randy Smith, raising the passenger seat from the reclined position to the upright position. According to Officer Fulcher, Randy appeared to be "stoned" and had a white mucus substance around his lips. Officer Fulcher asked Randy if he had been asleep, and he answered that he had just awakened. Officer Fulcher testified that Randy responded with a "real thick tongue" and appeared "stoned" and lethargic. Officer Fulcher noticed several food wrappers and a number soft drink cans strewn about the vehicle and a cooler on the back seat. He also detected a smell of body odor as if the men had not bathed in a couple of days.

While looking over the rental agreement, Officer Fulcher noted that the vehicle was rented from an Alamo Rental Agency in Knoxville, Tennessee, in the name of Tracy Smith, and that neither Steven nor Randy was listed as an authorized driver of the vehicle. Steven informed Officer Fulcher that Tracy Smith was his wife. The address listed by Tracy Smith on the rental agreement matched the address on Steven's driver's license. Officer Fulcher testified that he was satisfied that Tracy was in fact Steven's wife.

Officer Fulcher noticed that the vehicle had been rented four days earlier on May 9, 1999, and asked the men if they were on vacation. Steven explained that he was a transport driver for a car hauler and that they had been to Arkansas to look at car haulers. Officer Fulcher informed Steven that he was going to issue him a warning citation for failure to maintain lane control. Officer Fulcher then returned to his patrol car to write out the citation. At the preliminary hearing, Officer Fulcher testified that he could not recall if he performed a driver's license check on Steven.

Upon returning to the rental vehicle, Officer Fulcher presented the warning citation to Steven. Officer Fulcher advised him that the next time he rented a vehicle he intended to drive, he should be listed on the rental agreement as an authorized driver. Officer Fulcher then asked Steven if they had any weapons or narcotics in the vehicle. Steven responded in the negative. Officer Fulcher testified that during this questioning, Steven appeared nervous and would not look at him when responding.

Officer Fulcher asked for consent to search the vehicle, but Steven refused. Officer Fulcher then asked Steven and Randy to exit the vehicle so that he could run Lacy, his drug detection dog, around the vehicle. Steven and Randy exited separately from the vehicle and Officer Fulcher patted them down to determine if they were carrying any weapons. According to Officer Fulcher, Steven and Randy were detained at this time and were not free to leave.

After the Smiths exited the vehicle, they waited in front of Officer Fulcher's patrol car as he ran Lacy around the vehicle. The dog alerted to both the passenger's side door and the driver's side door. Officer Fulcher then allowed Lacy to enter the vehicle through the front passenger side of the vehicle. Lacy alerted on a black canvas bag located on the floor behind the driver's seat. 1 Officer Fulcher opened the bag and discovered illegal drugs wrapped in foil and duct tape. The bag contained what was later determined to be 5854.4 grams of methamphetamine, 436.9 grams of amphetamine and 27.1 grams of cocaine. Officer Fulcher placed Steven and Randy under arrest.

Upon further search of the vehicle, Officer Fulcher discovered a loaded Glock 9mm pistol located next to the passenger seat between the seat and the console. A loaded magazine was found in the glove compartment. Additionally, Officer Fulcher and another officer who had arrived on the scene found gas, hotel and food receipts from San Bernardino, California, dated from May 11, 1999 to May 12, 1999. In the trunk, the officers discovered a set of digital scales, wrapping material used to wrap the drugs and a magic marker. In Randy's front pants pocket, Officer Fulcher found a "shooter pipe" used to ingest narcotics. Subsequent to this arrest, law enforcement officers searched Steven's home and recovered over $21,000 in cash. 2

On October 6, 1999, Steven Smith and Randy Smith were indicted by the federal grand jury for the Middle District of Tennessee. Count I of the indictment charged the defendants with conspiracy to possess with intent to distribute over 5000 grams of methamphetamine, over 400 grams of amphetamine, and a quantity of cocaine, in violation of 21 U.S.C. § 846. Count II of the indictment charged the defendants with knowingly and intentionally possessing with intent to distribute 5000 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count III of the indictment charged the defendants with knowingly and intentionally possessing with intent to distribute over 400 grams of amphetamine, in violation of 21U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count IV of the indictment charged the defendants with knowingly and intentionally possessing with intent to distribute a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count V charged the defendants with unlawfully carrying on or about their persons a firearm during and in relation to the commission of drug trafficking crimes, in violation of 18 U.S.C. § 924(c) and § 2.

Both Steven and Randy filed motions to suppress the evidence obtained during the search of the vehicle. The district court granted Steven's motion, but denied Randy's motion, finding that he did not have standing to challenge the legality of the search, because he was a passenger in a rental vehicle and was not listed as an authorized driver of the vehicle, and because he did not assert a possessory interest in any of the contraband seized. The government filed a motion to sever the defendants' cases, which the district court granted, and the case against Randy proceeded to trial. On February 4, 2000, the government filed a notice of appeal with respect to Steven, seeking reversal of the district court's decision granting Steven's motion to suppress.

II. CERTIFICATION REQUIREMENT

As an initial matter, we must determine whether this appeal should be dismissed because of the government's failure to comply with the certification requirement set forth in 18 U.S.C. § 3731. Section 3731 provides in relevant part:

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding of an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

* * * * *

The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.

The provisions of this section...

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