U.S. v. Cervine

• Decision Date: 22 October 2003
• Docket Number: No. 02-3169.,02-3169.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John J. CERVINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

347 F.3d 865

UNITED STATES of America, Plaintiff-Appellee, v. John J. CERVINE, Defendant-Appellant.

No. 02-3169.

United States Court of Appeals, Tenth Circuit.

October 22, 2003.

Appeal from the United States District Court for the District of Kansas, Sam. A. Crow, J.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^* David S. Rauzi, Law Offices of David S. Rauzi, Kansas City, Missouri, appearing for Appellant.

Eric F. Melgren, United States Attorney, Nancy Landis Caplinger, Assistant United States Attorney, Office of the United States Attorney, Topeka, Kansas, appearing for Appellee.

Before TACHA, Chief Circuit Judge, EBEL and BRISCOE, Circuit Judges.

TACHA, Chief Judge.

During a canine search of Appellant-Defendant John Cervine's vehicle, conducted after a stop for a traffic violation, Missouri Highway Patrol troopers discovered marijuana and methamphetamine. Mr. Cervine pleaded guilty to one count of conspiring to manufacture and distribute a controlled substance, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and one count of possessing, with the intent to distribute, approximately 53.2 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In his plea agreement, Mr. Cervine reserved the right to appeal the district court's ruling on his motion to suppress the evidence obtained from the traffic stop of his truck and from his subsequent questioning. The district court denied the motion, finding that the troopers' conduct did not violate the Fourth Amendment. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. Background

Missouri state troopers arrested John Cervine on March 11, 2000, during his return trip home to Kentucky from Baxter Springs, Kansas. Mr. Cervine originally traveled to Baxter Springs to visit Timothy Cline, an Oklahoma resident and owner of Biker's Dream, a motorcycle sales and repair shop in Baxter Springs. DEA agents had been investigating Timothy Cline as a possible methamphetamine distributor and pseudoephedrine supplier since late 1999. Based on information derived from their investigation, including wiretaps of telephone calls on March 7-11, 2001, DEA agents had reason to believe that Mr. Cervine was involved with Mr. Cline in trafficking illegal drugs.

On March 11, 2000, Mr. Cervine telephoned Timothy Cline upon arriving in the Baxter Springs area. After first meeting Mr. Cline at his Oklahoma home, Mr. Cervine drove to Baxter Springs, arriving at Biker's Dream at approximately 1:00 p.m. After about five hours, Mr. Cervine left the shop in his truck, with his motorcycle in tow, apparently en route to Kentucky.

DEA agents followed Mr. Cervine from Baxter Springs into Missouri and observed him on two occasions drive at a slow speed through two rest areas without stopping returning directly to the interstate. The DEA agents testified that narcotics traffickers commonly adopt such behavior as a counter-surveillance technique.

After observing this behavior, the DEA agents contacted the Missouri Highway Patrol, informing them that Mr. Cervine was likely transporting illegal drugs. The DEA agents also requested that the Highway Patrol stop the vehicle for any observed traffic violations and seek permission from Mr. Cervine to search the vehicle. After locating Mr. Cervine's vehicle, Highway Patrol troopers Scott Mease and Cort Stuart observed his truck veer over the line separating the left passing lane from the right driving lane for approximately two seconds before returning fully to the right lane. The Highway Patrol officers stopped Mr. Cervine for this violation. Mr. Cervine did not deny committing the violation, claiming that deficient tongue weight in his towed trailer caused the vehicle to swerve.

After approaching the truck and informing Mr. Cervine of the basis for the stop, Highway Patrol Trooper Mease requested his driver's license. Upon receiving this license, Trooper Mease asked Mr. Cervine to accompany him to his patrol car. Mr. Cervine complied. After denying that he was transporting illegal drugs in his vehicle, Mr. Cervine gave the troopers permission to search his truck.

Instead of searching the vehicle themselves, the troopers called in the canine unit to perform the search. Although Mr. Cervine claims that the canine unit did not arrive for approximately three hours, the troopers claim that it arrived within thirty minutes.

A few minutes after arriving, the dog alerted the troopers to the truck's console, where they located marijuana and methamphetamine in vacuum-sealed packages. Trooper Mease then arrested Mr. Cervine and read him his Miranda rights. Once at Troop D headquarters, Mr. Cervine answered questions posed to him by Missouri Highway Patrol officers.

II. Discussion

A. Standard of Review

In reviewing the denial of a motion to suppress evidence, we accept the factual findings of the district court, and its determination of witness credibility, unless they are clearly erroneous. See United States v. Flores, 48 F.3d 467, 468 (10th Cir.1995), cert. denied, 516 U.S. 839, 116 S.Ct. 122, 133 L.Ed.2d 72 (1995). We review the evidence in the light most favorable to the finding of the district court and review de novo the ultimate determination of reasonableness under the Fourth Amendment. See United States v. Gregory, 79 F.3d 973, 977 (10th Cir.1996).

B. Overview of Applicable Fourth Amendment Law

In reviewing the constitutionality of traffic stops under the Fourth Amendment, we conduct a two-step inquiry. First, we must determine "whether the officer's action was justified at its inception." United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994). Second, we must consider "whether the action was reasonably related in scope to the circumstances that first justified the interference." Id. "An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation." Id. After completion of these activities, an officer may detain a driver for reasons unrelated to the initial traffic stop if (1) the officer has "an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring[,]" or (2) "if the initial detention has become a consensual encounter." Id. (citations omitted).

C. Reasonableness of the Traffic Stop at Its Inception

"[A] detaining officer must have an objectively reasonable articulable suspicion that a traffic violation has occurred or is occurring before stopping [an] automobile." United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993) (citation omitted). Here, Trooper Mease testified that the truck driven by Mr. Cervine crossed the line dividing the driving and passing lanes for approximately two seconds. Trooper Mease claimed that he stopped Mr. Cervine for violating Mo.Rev. Stat. § 304.015.6, which states:

All vehicles in motion upon a highway having two or more lanes of traffic proceeding in the same direction shall be driven in the right-hand lane except when overtaking and passing another vehicle or when preparing to make a proper left turn or when otherwise directed by traffic markings, signs or signals.

Mr. Cervine counters that the troopers did not have probable cause² because "crossing over the lane divider for two seconds cannot objectively constitute a violation" of Mo.Rev.Stat. § 304.015.6.³ We disagree.

To support his argument, Mr. Cervine points to our holding in United States v. Gregory, 79 F.3d 973 (10th Cir.1996). In Gregory, the defendant, while driving a U-Haul truck through a windstorm, swerved one time into an emergency lane on a windy, mountain road. We held that the officer did not have reasonable suspicion to support a traffic stop because this action did not violate Utah law. Id. at 978. Mr. Cervine contends that the similarity of vehicles and driving conditions here and in Gregory requires a comparable holding in this case.

Mr. Cervine misreads our decision in Gregory. For purposes of establishing reasonable suspicion, we only consider vehicle and weather conditions when the underlying state statute so directs. We considered these conditions in Gregory because the underlying Utah statute contained an-as-nearly-as-practical requirement. The relevant statute in Gregory, Utah Code Ann. § 41-6-61(1), requires that "[a] vehicle shall be operated as nearly as practical entirely within a single lane...." Id. (emphasis added). Given the difficult weather, vehicle, and road conditions, it was not "practical" for the driver in Gregory to avoid the emergency lane at all times. See Gregory, 79 F.3d at 978; State v. Bello, 871 P.2d 584, 587 (Utah Ct.App.1994) (holding that one instance of weaving does not constitute a violation of Utah Code Ann. § 41-6-61(1)). Thus, in Gregory, we recognized nothing more than the fact that because the driver did not violate the Utah statute, no basis existed for the officer to form the reasonable suspicion necessary for the traffic stop in question.

In contrast to the Utah statute, Mo.Rev. Stat. § 304.015.6 does not allow drivers to comply with the right-lane requirement "as nearly as practicable." Instead, the Missouri statute sets forth only three conditions under which vehicles may enter the left-hand lane: (1) "when overtaking and passing another vehicle"; (2) "when preparing to make a proper left turn"; and (3) "when otherwise directed by traffic markings, signs, or signals."⁴ Id. Unlike Utah Code Ann. § 41-6-61(1), a driver violates Mo.Rev.Stat. § 304.015.6 if his vehicle enters the left-hand lane for any reason other than the three justifications enumerated in the statute. The Missouri statute does not include an exception for improper vehicle weight, driver visibility, or wind. Thus, regardless of the wind, the darkness, or the weight of his trailer, when Mr. Cervine's truck entered the left lane, he violated Mo.Rev.Stat. § 304.015.6.⁵

This violation provided the troopers with reasonable suspicion to stop...