349 F.3d 192 (5th Cir. 2003), 02-41130, U.S. v. Grant

Docket Nº:02-41130
Citation:349 F.3d 192
Party Name:U.S. v. Grant
Case Date:August 26, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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349 F.3d 192 (5th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,

v.

Issac Remon GRANT, Defendant-Appellant.

August 26, 2003

        As Revised Oct. 23, 2003.

Page 193

        Tracey M. Batson, Asst. U.S. Atty., Plano, TX, for Plaintiff-Appellee.

        Gregory A. Waldron, Amy R. Blalock, Asst. Fed. Pub. Defenders, Tyler, TX, for Defendant-Appellant.

        Appeal from the United States District Court for the Eastern District of Texas.

        Before EMILIO M. GARZA and DeMOSS, Circuit Judges, and DUVAL, [*] District Judge.

        DUVAL, District Judge:

        Issac Remon Grant appeals his conditional guilty plea conviction for possession with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1). The plea agreement permitted Grant to appeal the court's decision denying his motion to suppress the evidence confiscated as a result of a warrantless search of the automobile within which he was a passenger. Grant challenges the district court's denial of his motion to suppress, arguing that the officer who made the stop detained him for an unreasonable time, beyond the scope of the traffic stop, and that the discovery of the crack cocaine resulted from this violation of his Fourth Amendment rights.

        I. FACTS AND PROCEEDINGS

        On May 28, 2000, Officer Danny Buchholtz, a member of the Jefferson County Narcotics Task Force, was on duty on Interstate 10, east of Beaumont, Texas. Buchholtz had been assigned to this task force for approximately seven years. At approximately 11:25 p.m., Officer Buchholtz spotted a black 1999 Chevrolet traveling eastbound and driving in the left lane. 1 According to Officer Buckhholtz's testimony at the suppression hearing, the

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black Chevrolet was traveling behind another car that was moving at a slower pace. Buchholtz saw the Chevy pass the slower car without signaling, cutting off the other driver. Buchholtz signaled to the Chevy's driver, later identified as co-defendant John Alfred Bruton, to pull over to the side of the road. At this point, the officer activated a video camera which captured the events that occurred during the stop.

        Because Bruton did not pull far enough toward the shoulder of the road to be a safe distance from passing cars, Buchholtz walked up behind the Chevy and requested that the driver pull the car toward the side of the road. After Bruton parked the car safely by the shoulder, Buchholtz approached the passenger side of the car. Buchholtz noticed that the passenger, Issac Grant, was fumbling around the passenger seat. He also noticed a Doritos bag laying on the floor by Grant's leg. Worried that Grant may have been trying to conceal a weapon, he asked Grant to lift up his shirt. Grant complied.

        At this point the driver, Bruton, got out of the Chevy. Buchholtz asked him for his license and explained that he pulled the car over because Bruton failed to signal a lane change. The officer asked Bruton about his travel plans and Bruton indicated that he and Grant had been in Houston to drop off a cousin and that they had stayed there overnight. Bruton informed the officer that the car was registered to his wife. At 11:27 p.m. Buchholtz radioed the dispatcher to verify Bruton's license information, check his criminal history, and search for outstanding warrants.

        At 11:29 p.m. Buchholtz walked to the passenger side of the Chevy and asked Grant to step out of the car. Because Buchholtz had seen Grant fumbling around in the passenger seat, he thought that Grant may have been concealing drugs or a weapon. Buchholtz asked Grant to put his hands on the side of the car, patted him down, but found nothing. Buchholtz then asked Grant for his identification, but Grant did not have any form of identification with him. Instead, Grant gave Buchholtz his name and date of birth. Buchholtz asked Grant about his travel plans and Grant told him that he and Bruton had been in Houston to see an auto show and also went to the mall. The officer asked if they had stayed in Houston over the weekend and Grant indicated that they had. Buchholtz testified at the suppression hearing that because Bruton and Grant gave conflicting stories about their trip to Houston, Bruton appeared nervous, and Grant had been fumbling around in his seat as if to conceal something and also appeared nervous, he decided to request permission to search the Chevy.

        At approximately, 11:30 p.m. Buchholtz approached Bruton and asked for his consent to search the car. Buchholtz asked Bruton, "Do you care if I search the car? It's voluntary. I'm going to call a dog." Bruton responded, "Why do you want to search?" To which Buchholtz asked, "Is there dope in the car? If you don't want the search, I'll get the dog." After asking several additional times for consent to search, and receiving each time the response, "Why do you want to search?" or some variation of it, Buchholtz interpreted Bruton's responses as a denial of consent to search.

        At 11:31 p.m. Buchholtz radioed for a narcotics dog, and asked Bruton and Grant to sit at the side of the road until the canine unit arrived. At around this same time, the dispatcher completed the check on Bruton. There were no outstanding warrants, but Bruton had a positive criminal history indicating a narcotics conviction. At approximately 11:31:50, Buchholtz ordered the dispatcher to check

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Grant's name, date of birth, and check for outstanding warrants.

        At around 11:32 p.m. Buchholtz asked Bruton if he had a "bag of weed" in the car. He said to Bruton, "I'm not gonna bother about a bag of weed." Bruton admitted that he and Grant "smoked a joint" much earlier when they were in Houston and that there may be some ashes in the car.

        At 11:33 p.m. Buchholtz conducted a visual search of the passenger side of the car. With the door open, he shined a flashlight in the passenger area. Buchholtz testified that he was unsure whether the odor he smelled was marijuana, but he told Grant and Bruton that the scent of marijuana was faint and that he wanted wait for a dog to find out if there were drugs in the car. At 11:34 p.m. the dispatcher called Buchholtz and informed him that there was "nothing on Grant" in Louisiana. Buchholtz testified that this indicated that the records check on Grant was incomplete and the dispatcher would check for a match and/or outstanding warrants in surrounding states.

        At 11:40 p.m. and while they were waiting for the dog to arrive, Bruton suddenly got up from the side of the road, bolted toward the car, and drove away. Grant placed his body in front of the squad car to prevent Buchholtz from following Bruton. Buchholtz's partner apprehended Grant and Buchholtz began to chase after Bruton in the police car. At approximately 11:53 p.m. Buchholtz apprehended Bruton.

        When Buchholtz searched the car after arresting Bruton, he noticed that the Doritos bag he had seen in the passenger compartment was missing. Suspecting that Bruton threw the bag out of the window...

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