U.S. v. Vercher

• Decision Date: 24 February 2004
• Docket Number: No. 03-3110.,03-3110.
• Citation: 358 F.3d 1257
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Murnia Reschell VERCHER, Jr., and Randall Derwin Terrell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

358 F.3d 1257

UNITED STATES of America, Plaintiff-Appellant, v. Murnia Reschell VERCHER, Jr., and Randall Derwin Terrell, Defendants-Appellees.

No. 03-3110.

United States Court of Appeals, Tenth Circuit.

February 24, 2004.

COPYRIGHT MATERIAL OMITTED

T.G. Luedke, Assistant United States Attorney, (Eric F. Melgren, United States Attorney, and Nancy Landis Caplinger with him on the brief) Topeka, KS, for the Plaintiff-Appellant.

Michael M. Jackson, Topeka, KS, for Defendant-Appellee Randall Derwin Terrell.

David J. Phillips, Federal Public Defender and Melody Evans, Assistant Federal Public Defender, Topeka, KS, filed a brief, for Defendant-Appellee Murnia Reschell Vercher, Jr.

Before LUCERO, PORFILIO, and TYMKOVICH, Circuit Judges.

LUCERO, Circuit Judge.

Before us in the present appeal by the government is a challenge to the district court's decision to grant Randall Terrell and Murnia Vercher's motion to suppress evidence seized incident to a traffic stop. Determination of the matter rests on our evaluation of a single issue: Are the facts before us sufficient to support a Kansas highway trooper's claim of reasonable suspicion that defendants violated a state traffic law? On our review of the record and authorities, we conclude that the government's challenge is valid. We exercise jurisdiction pursuant to 18 U.S.C. § 3731, and reverse.

I

On November 5, 2002, at approximately 7:55 a.m., Kansas Highway Patrol Trooper Mario Rios was patrolling eastbound in the left lane on Interstate 70 in Kansas when he observed Terrell driving a minivan eastbound in the right lane with passenger Vercher. The day was overcast and not windy, the temperature was about thirty-two degrees, and the road was mostly dry with some wet spots. Rios testified that when he first noticed Terrell's minivan, it was about two car lengths (twenty to twenty-five feet) behind the preceding vehicle and driving approximately seventy miles per hour uphill on a quarter mile incline. Rios testified that based upon his training and experience, this was not a safe distance to follow behind another car. According to Rios, a safe following distance would have been between 100 and 150 feet. After observing the minivan, Rios determined that he "wanted to get the vehicle stopped to make sure there wasn't going to be an accident because of the [overcast] weather conditions." (R. at 68.) Rios pulled behind it from the left lane, activated his warning lights, and effected a traffic stop.

Terrell testified that he had been traveling in tandem with three other vehicles for some time; specifically, that he was following a Kia and was followed by a tractor trailer, which was followed by another van. Terrell stated that as the vehicles came over the crest of a hill, he noticed the Kia's brake lights come on and he tapped his brakes in response. As Rio's patrol car approached Terrell from behind in the left-hand lane, Terrell continued, the Kia decelerated, and as a result, the tractor trailer drew much closer to Terrell than he had to the Kia. In light of these circumstances, Terrell contended that he was maintaining a safe following distance. As the vehicles climbed the hill, the tractor trailer slowed, and Rios pulled in between the minivan and the tractor trailer to effectuate a traffic stop.

Upon checking Terrell's driver license and the rental papers for the minivan, Rios determined that neither Terrell nor Vercher was authorized to drive the minivan. After conferring with the rental company, Rios issued a warning for the stop and had the minivan towed and impounded. In inventorying the minivan, officers, including Rios, discovered that the seals of two interior door panels recently had been manipulated. Rios easily pulled off the panel seals and discovered approximately five pounds of cocaine. Both Terrell and Vercher denied knowledge of the packages.

On December 30, 2002, a two-count indictment was filed in district court. Count one charged Vercher and Terrell with possession with intent to distribute in excess of 500 grams of cocaine, and count two charged the men with conspiracy. On January 28, 2003, Terrell filed a motion to suppress the evidence seized from the minivan based on his contention that the traffic stop was not justified at its inception. Vercher filed a motion to join Terrell's motion to suppress.

On conclusion of a suppression hearing, the district court issued a memorandum and order granting defendants' motion to suppress and finding that the government failed to prove that Rios had a reasonable articulable suspicion for the traffic stop. The district court reasoned that Kansas law does not prohibit following-too-closely per se, but rather requires an officer to consider whether a vehicle is following more closely than is reasonable and prudent given the speed of the vehicles, the traffic, and the road conditions. K.S.A. § 8-1523(a) states:

The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.

To this point, the district court found:

Rios did not testify to, and thus apparently did not consider the traffic conditions. Rios did not recall the tractor trailer behind Terrell, although the videotape [recording the traffic stop] corroborates that the tractor trailer was behind Terrell. Rios did not notice whether or not the Kia was braking. Rios did not notice whether the cars and truck bunched up at the bottom of the hill. His observation was a snapshot taken as the vehicles were beginning to go uphill but while Terell was still relatively close behind the Kia. Because Rios did not notice or consider the traffic conditions, he could not make an evaluation of whether Terrell's distance, although close given the speed of the vehicles, was nevertheless reasonable and prudent given the relevant circumstances.

(R. at 36.) Finding Rios's observation insufficient to support a reasonable suspicion that Terrell was driving more closely than was reasonable and prudent, the district court granted Terrell's motion to suppress the evidence. In our review, we stress that it is not our role to decide whether the present facts are adequate to affirm a conviction under the applicable Kansas traffic statute; we inquire solely as to whether the facts are adequate to form an objectively reasonable suspicion that Terrell was violating K.S.A. § 8-1523(a). We have reviewed the videotape taken by the officer incident to the stop admitted into evidence as well as the balance of the record, and because we conclude that Rios's observation of the speed and distance was sufficient to form such a suspicion, we REVERSE. Were this a case involving commuter traffic on congested roads, rather than the sparsely populated traffic conditions revealed by our review of the videotape, our decision might be otherwise. However, on these facts and this speed — seventy to seventy-five miles per hour — we believe that district court's conclusion that Rios's observations did not amount to reasonable suspicion was in error.

II

When reviewing a district court's order granting a motion to suppress, we accept the "trial court's factual findings unless clearly erroneous, and vie[w] the evidence in the light most favorable to the district court's finding." U.S. v. Leyva-Serrano, 127 F.3d 1280, 1282 (10th Cir. 1997) (citation omitted). At a hearing on a pre-trial motion to suppress, "the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge." Id. (quotation omitted). Though we defer to the district court's findings of fact, "we review de novo the ultimate determination of the reasonableness [of the stop] under the Fourth Amendment." Id. (citation omitted). Specifically, we examine the events that occurred leading up to the stop to determine whether the "historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or probable cause." Ornelas v. U.S., 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

Whether a traffic stop is valid under the Fourth Amendment turns on whether "this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction." U.S. v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (citation omitted). This...