278 F.3d 722 (8th Cir. 2001), 00-3457, US v. Wheat

Docket Nº:00-3457
Citation:278 F.3d 722
Party Name:UNITED STATES OF AMERICA, APPELLEE, v. WADE ALLEN WHEAT, APPELLANT.
Case Date:April 10, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 722

278 F.3d 722 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE,

v.

WADE ALLEN WHEAT, APPELLANT.

No. 00-3457

United States Court of Appeals, Eighth Circuit

April 10, 2001

December 28, 2001

Appeal from the United States District Court for the Northern District of Iowa

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[Copyrighted Material Omitted]

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Before Loken, Circuit Judge, Bogue, 1 District Judge, and Goldberg, 2 Judge. 3

Goldberg, Judge

Wade Allen Wheat appeals from his conviction on one count of possession of cocaine base ("crack"). He argues, inter alia, that the district court 4 erred in denying his motion to suppress, and that, even if his conviction were lawful, his sentence is unconstitutional in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Because we find that the District Court properly denied Wheat's motion to suppress and that the Apprendi error was harmless, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 3, 1996, a motorist used his cellular phone to place a 9-1-1 call to the Blairsburg, Iowa Police Department. The caller reported that a tan-and cream- colored Nissan Stanza or "something like that," whose license plate began with the letters W-O-C, was being driven erratically in the northbound lane of Highway 169, eight miles south of Fort Dodge, Iowa. The caller complained that the Nissan was passing on the wrong side of the road, cutting off other cars, and otherwise being driven as if by a "complete maniac." The 9-1-1 operator did not ask the caller to identify himself.

Police dispatchers relayed the caller's tip to patrolling officers. Shortly thereafter, Officer Paul Samuelson observed a tan Nissan Maxima whose license plate began with the letters W-O-C, stopped in the northbound lane of Highway 169 at the intersection of Highway 20. The Nissan made a right turn, and Officer Samuelson stopped it immediately, without having observed Page 725

any incidents of erratic driving. He obtained the driver's licenses of the driver and Wheat, who was sitting in the front passenger seat; there were no other passengers. A check disclosed that Wheat's license was suspended but that notice of the suspension had never been served. Because Officer Samuelson was unfamiliar with the procedure for service, he radioed Officer Aaron Anderson, whom he already had an appointment to meet, to request assistance at the scene.

Shortly after Officer Anderson arrived, a dispatcher radioed Officer Samuelson to inform him that the suspension had in fact already been served. However, because Officer Samuelson had noticed that the driver's hands were fidgeting, he asked Officer Anderson whether he had any previous experience with the driver. Officer Anderson told Officer Samuelson that the driver had a history of drug problems and that he had run from the police on several occasions. On the basis of this information, and after informing Wheat that the suspension did not need to be served, Officer Samuelson requested and received permission from the driver to search the vehicle. At Officer Samuelson's request, the driver exited the vehicle.

As Officer Samuelson was walking around toward the passenger side, Wheat opened his door and exited the vehicle on his own initiative. When Officer Samuelson reached the passenger side, he noticed a dry brown paper bag from a McDonald's restaurant at Wheat's feet. Because it was raining during the duration of the stop, the dryness of the bag was remarkable. Suspecting that Wheat had just discarded the bag, Officer Samuelson retrieved it, and found that it held four smaller plastic bags containing what appeared to be a controlled substance. A further search of the vehicle also revealed a small quantity of marijuana. Around fifteen minutes after he first pulled them over, Officer Samuelson arrested both the driver and Wheat for possession of controlled substances. Subsequent laboratory testing proved the contents of the plastic bags to be 63.03 grams of crack cocaine.

Wheat was indicted by a grand jury on one count of possession with intent to distribute more than 50 grams of a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 841(b)(1)(A)(iii) (1994). He pled not guilty and filed a motion to suppress all evidence obtained and statements made at the May 3, 1996 vehicle stop. The motion was denied.

In a two-day jury trial beginning March 10, 1997, the appellant was found not guilty of possession with intent to distribute, but was convicted on the lesser included offense of simple possession of cocaine base, pursuant to 21 U.S.C. § 844(a). The district court sentenced the appellant to 110 months imprisonment. After several procedural twists and turns not relevant to the issues before us now, this appeal followed.

II. DISCUSSION

Wheat's principal contentions are that the district court erred by denying his motion to suppress all evidence obtained as a result of the May 3, 1996 stop of the vehicle in which he was a passenger, and, failing the success of that argument, that his 110-month sentence is unconstitutional in light of the Supreme Court's subsequent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

A. The District Court Properly Denied the Motion to Suppress

We conduct a de novo review of the district court's denial of the motion to suppress. Ornelas v. United States, 517 U.S. 690, 699 Page 726

(1996). However, we review the findings of historical fact that underlie the district court's decision for clear error, and afford "due weight" to the inferences drawn from those facts by the district court and the participating law enforcement officers. Id.; see also United States v. Ball, 90 F.3d 260, 262 (8th Cir. 1996).

Wheat argues that the anonymous 9-1-1 call could not give rise to reasonable suspicion sufficient to justify an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968), because Officer Samuelson never witnessed any traffic violation actually in progress or about to occur. Wheat also argues that he and the driver of the Nissan should have been allowed to leave the scene immediately after Officer Samuelson discovered that no license suspension needed to be served. 5

1. Officer Samuelson Had Reasonable Suspicion to Initiate the Stop

When a law enforcement officer directs a motor vehicle to stop by the side of the road and detains its occupants for questioning, such an investigatory stop constitutes a search and seizure under the Fourth and Fourteenth Amendments, "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653 (1979); accord Whren v. United States, 517 U.S. 806, 809-10 (1996); see also Thomas v. Dickel, 213 F.3d 1023, 1024 (8th Cir. 2000). Under Terry and its progeny, "[a]n investigatory stop is permissible under the Fourth Amendment iF.Supp.orted by reasonable suspicion." Ornelas v. United States, 517 U.S. 690, 693 (1996); see also United States v. Sharpe, 470 U.S. 675, 682 (1985) (applying Terry to investigatory stop of vehicle); United States v. Bell, 183 F.3d 746, 749 (8th Cir. 1999) ("An investigative stop does not violate the Fourth Amendment if the police have reasonable suspicion that the vehicle or its occupants are involved in criminal activity."). If the investigatory stop is not justified by reasonable suspicion or if the investigating officers exceed the stop's proper scope, any evidence derived from the stop is inadmissible at trial. See, e.g., Wong Sun v. United States, 371 U.S. 471, 484 (1963); United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994). A passenger in a motor vehicle has standing to challenge the stop of that vehicle. See United States v. Lyton, 161 F.3d 1168, 1170 (8th Cir. 1998).

Because reasonable suspicion is a less demanding standard than the probable cause required for an arrest, it "can arise from information that is less reliable than that required to show probable cause," including an anonymous tip. Alabama v. White, 496 U.S. 325, 330 (1990). Whether an anonymous tip suffices to give rise to reasonable suspicion depends on both the quantity of information it conveys as well as the quality, or degree of reliability, of that information, viewed under the totality of the circumstances. Id. "[I]f a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id.

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In White, the Supreme Court considered whether the requisite quantum of suspicion was established by an anonymous tip claiming that a named individual would leave a specific apartment at a particular time and transport an ounce of cocaine in a brown Plymouth station wagon with a broken tail light to a specific motel. Id. at 327. The Court stated that the tip itself provided virtually no indication that the caller was honest or that the tip was reliable, as it gave no basis for its predictions. Id. at 329. However the Court held that visual corroboration by law enforcement officers of most aspects of the tip, including the suspect's sex, the time of her departure, the vehicle she drove, and her apparent destination, gave the tip sufficient indicia of reliability. Id. at 332 ("When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.").

Subsequent to White, with respect to two categories of anonymous tips, lower courts tended to find reasonable suspicion even where such tips lacked personal corroboration by law enforcement officers of any predictive elements. First, several federal appellate courts held that verification by police of the...

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