U.S. v. Jones

• Decision Date: 16 May 2001
• Docket Number: No. 99-3040,99-3040
• Citation: 269 F.3d 919
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. DONALD H. JONES, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 919

269 F.3d 919 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. DONALD H. JONES, APPELLANT.

No. 99-3040

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 16, 2001

Filed: October 15, 2001

Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Before Wollman, Chief Judge, Hansen, Circuit Judge, and Barnes,¹ District Judge.

Hansen, Circuit Judge

A grand jury indicted the defendant, Donald H. Jones, on two counts of transporting child pornography in interstate commerce, one count of possessing child pornography, and one count seeking forfeiture of the child pornography contraband involved in and the instrumentalities used to commit the charged crimes. Jones moved to suppress evidence obtained by the government, asserting that the evidence was the product of a traffic stop conducted in violation of the Fourth Amendment. The district court, adopting the recommendation of the magistrate judge, concluded that the traffic stop was lawful and that the evidence should not be suppressed. Jones entered into a conditional plea agreement whereby he pleaded guilty to interstate transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1) and to the forfeiture allegations, but reserved the right to appeal the district court's order denying his motion to suppress. We reverse the judgment of the district court and conclude that Jones's Fourth Amendment rights were violated by an unlawful detention, and that the evidence obtained during and as a result of that detention should have been suppressed.²

I.

On December 11, 1998, at approximately 5:45 p.m., Trooper DeWitt of the Missouri Highway Patrol observed a black Ford truck with California license plates, driven by Jones, towing a large 29-foot camper northbound on Interstate 270. The truck was traveling at approximately 50 miles per hour, and when Trooper DeWitt began to pass the truck he noticed that the driver slowed down even though the truck was already traveling under the speed limit. Suspicious, DeWitt pulled in behind the truck/camper and followed it for approximately three miles. During this time, the truck slowed to 38 miles per hour in a minimum speed zone of 40 miles per hour. Upon seeing the camper shake and its wheels cross the dividing lines of the traffic lanes both to its left and right, DeWitt became concerned that the driver might be tired or intoxicated. DeWitt activated his emergency lights and stopped the vehicle. After the vehicles were stopped on the side of the Interstate, DeWitt exited his vehicle and approached the passenger side of Jones's truck. Trooper DeWitt explained to Jones why he had stopped him and requested that Jones exit his vehicle and accompany DeWitt back to the patrol car. Jones complied. While in the patrol car DeWitt asked to see Jones's driver's license and insurance card. DeWitt used his computer to determine if the license and registration were valid and to investigate Jones's criminal history. The results from the license and registration check returned first, and DeWitt determined that both the license and registration were valid.

While waiting for the results of the criminal history search, and while still in the patrol car, DeWitt questioned Jones about the nature and purpose of his trip. At the suppression hearing, Trooper DeWitt testified that Jones appeared nervous while inside the patrol car. Specifically, he testified that Jones's voice cracked, Jones yawned, Jones's thumb shook, and Jones would not make eye contact with him. Despite this apparent nervousness, Jones responded to DeWitt's questions, explaining that he was traveling across the country from California to New Jersey to see his family for the holidays. Jones also explained that he had no permanent address and that the camper was his home. During this questioning, DeWitt asked Jones whether he had any prior arrests and Jones responded that he did not. Subsequently, the results from the criminal history check were transmitted to the patrol car. They indicated that Jones had a prior felony arrest. By this time a second officer had arrived at the scene, and DeWitt used this officer's cellular phone to call his dispatcher and inquire further into Jones's prior arrest. DeWitt learned that Jones had two prior theft arrests. DeWitt asked Jones about these arrests, and Jones initially denied that he had prior arrests. After several more minutes of questioning, however, Jones admitted that he might have been arrested for stealing cigarettes when he was a minor. DeWitt believed that Jones was being evasive because the criminal history information from the dispatcher did not comport with Jones's account. The information from the dispatcher revealed that Jones's prior arrests had occurred within the last four to five years, and Jones's driver's license indicated he was thirty years old.

Although suspicious that Jones might be operating under the influence, DeWitt smelled no traces of alcohol on Jones's breath nor did he perceive any other signs that Jones was intoxicated or otherwise impaired. DeWitt gave Jones a warning and returned Jones's license and insurance card. Upon receipt of his documents, Jones exited the vehicle. DeWitt then followed Jones out of the vehicle and began to ask him more questions. DeWitt asked Jones if there was any contraband, including narcotics, aboard the camper. Jones answered, "no, and no." He also replied that he had owned a business in California and had fired two employees for using drugs. DeWitt then asked Jones for permission to search the vehicle, but Jones denied permission, stating that he had always been told "not to let the police into your home." In response, DeWitt told Jones that he was going to call in a canine narcotics unit to inspect the camper. Jones responded, "fine." In Jones's presence, DeWitt radioed for the assistance of a canine unit, but was told there was none in the immediate area. DeWitt directed that a canine unit be sent out to the Interstate location anyway. Officer Swartz and a drug-detecting dog arrived at the scene at approximately 7:05 p.m.--almost one hour after DeWitt called for the canine unit, and almost an hour and one-half after the initial stop. At no point did DeWitt tell Jones he was free to leave.

Officer Swartz and the drug dog conducted an examination of the exterior of the vehicle. The dog alerted to the left rear wheel of the camper. Not finding any narcotics attached to the exterior or underside of the camper, the officers directed Jones to unlock the camper door so that they could search the alerted area from the inside. Jones unlocked the camper door and turned on the lights. The interior of the camper contained furniture, including plants, cabinets, a desk, video equipment, and a computer. The officers conducted a search of the interior of the vehicle while it was still on the Interstate. Officer Swartz removed tape securing the cabinet drawers, opened them, and removed papers and pictures from the drawers to see if narcotics were hidden in the back of the drawers. Officer DeWitt observed photographs of a nude boy on the top of the stack of papers removed from the cabinet drawers. The officers did not search the area the dog had alerted to because the camper was not fully extended and the officers were unable to access it. DeWitt and Swartz determined that the camper needed to be extended to allow them access to the alerted area.

At the officers' direction, Jones drove the truck/camper to an empty fuel shed approximately one-half mile up the Interstate, and the officers followed. Jones extended the camper, allowing the officers to gain access to all parts of the camper. The officers, accompanied by the drug dog, entered the interior of the camper. The dog alerted to the left rear corner of the camper. The officers then searched that area and other parts of the camper, but they did not find any narcotics. DeWitt did find, however, video cassettes with homemade sleeves depicting nude pictures of young boys. Upon seeing the pictures, DeWitt placed Jones under arrest.

II.

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. It is well established that a roadside traffic stop is a "seizure" within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979). For purposes of constitutional analysis, a traffic stop is characterized as an investigative detention, rather than a custodial arrest. Berkemer v. McCarty, 468 U.S. 420, 439 (1984). As such, a traffic stop is governed by the principles of Terry v. Ohio, 392 U.S. 1 (1968). Generally such a stop must be supported by at least a reasonable, articulable suspicion that criminal activity is afoot. Prouse, 440 U.S. at 663. Jones does not challenge the legality of the initial stop of his automobile, and so we need not determine its legality as a traffic stop.

The principles of Terry provide that once Trooper DeWitt lawfully stopped Jones he was entitled to conduct an investigation "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20; see also United States v. Cummins, 920 F.2d 498, 502 (8th Cir. 1990), cert. denied, 502 U.S. 962 (1991). The scope of a Fourth Amendment intrusion "will vary to some extent with the particular facts and circumstances of each case." Florida v. Royer, 460 U.S. 491, 500 (1983); see also United States v. Willis, 967 F.2d 1220, 1224 (8th Cir. 1992). "The scope of the detention must be carefully tailored to its underlying justification." Royer, 460 U.S. at 500. This means that the Fourth Amendment intrusion "must be temporary and last no longer than is necessary to effectuate the purpose of the stop" and that the officer should employ the least intrusive...