U.S. v. Oliver, 02-4187.

• Decision Date: 06 April 2004
• Docket Number: No. 02-4187.,02-4187.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Arthur Alvin OLIVER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

363 F.3d 1061

UNITED STATES of America, Plaintiff-Appellant, v. Arthur Alvin OLIVER, Defendant-Appellee.

No. 02-4187.

United States Court of Appeals, Tenth Circuit.

April 6, 2004.

COPYRIGHT MATERIAL OMITTED

Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States Attorney, and Diana Hagen, Assistant United States Attorney, on the briefs), Salt Lake City, UT, for Plaintiff-Appellant.

Michael R. Sikora (Loni F. DeLand, with him on the brief), Salt Lake City, UT, for Defendant-Appellee.

Before LUCERO, HARTZ, and McCONNELL, Circuit Judges.

HARTZ, Circuit Judge.

The government appeals the district court's grant of Defendant Arthur Alvin Oliver's motion to suppress evidence seized during a traffic stop. We exercise jurisdiction under 18 U.S.C. § 3731 and reverse.

I. BACKGROUND

On the afternoon of October 13, 2001, Sergeant Ryan Bauer of the Utah Highway Patrol was patrolling Interstate 15 in Beaver County, Utah, when he observed a blue Ford driven by Defendant exceeding the speed limit. He turned on his emergency lights and pulled the car over for speeding. The activation of the lights triggered the police vehicle's audio/video equipment, which recorded the traffic stop and subsequent events, although the audio component of the equipment failed to engage until later in the stop.

Defendant was the car's sole occupant. Sergeant Bauer approached from the passenger side, informed Defendant why he had been stopped, and asked for his license and registration. Defendant produced a driver's license and explained that the car was rented. When Bauer asked to see the rental agreement, Defendant opened the glove box to retrieve it.

Bauer saw in the glove box a cylindrical package approximately six inches long, wrapped in brown paper with thin, partially clear tape. Bauer, a 10-year veteran of the Highway Patrol who had been involved in approximately 400 drug-interdiction cases in the previous six years, testified that based on his training and experience the packaging appeared consistent with the way drugs are transported on interstate highways. He stated that he had "never seen anything wrapped like that that was not drugs wrapped in masking tape." Aplt.'s App. at 100.

Defendant could see that Bauer had noticed the package. He appeared to push the package farther into the glove box and underneath some papers. Bauer then asked Defendant what was in the package. Defendant did not answer, but his demeanor "completely changed." He began shaking and turned pale. He again tried to push the package down into the glove box. Asked once more what the package was, Defendant paused for a few seconds and replied that it was "fruit."

Bauer twice asked to see the package. Defendant did not reply. Instead, he took the package from the glove box, clutched it to his chest, covered it with his hands, and stared straight ahead. He ignored Bauer's repeated directions to drop the package, shut off the engine, and leave the vehicle. Bauer testified that he began to fear for his safety and drew his firearm. Eventually, Defendant put the package on the passenger's seat and left the car. By this time the traffic stop had lasted about two-and-a-half minutes.

Once Defendant was outside, Bauer instructed him to go to the front of the vehicle, turn around, kneel down, and put his hands behind his head. Defendant complied. Bauer then called for backup, intending to keep Defendant in that position until more officers arrived. (At this point the audio portion of the police recording engaged.)

While Defendant was kneeling, he appeared to Bauer to be extremely nervous and agitated. Defendant repeatedly lowered his hands from his head and moved them towards his waistband, despite Bauer's numerous orders not to move. After about six minutes in that position, Defendant stood up, approached the officer, told him that he would not get back on the ground, and that Bauer "was just going to have to shoot and kill him." Aplt.'s App. at 91. Defendant said, "I am just going to walk away," id. at 92, and began doing so. Bauer used pepper spray in an attempt to stop Defendant. But after being sprayed twice, Defendant ran across the highway to the median. Backup officers then arrived and arrested Defendant in the median. Following the arrest, Bauer can be heard on the audio/video recording remarking to a fellow officer, "I don't know what the package is."

Defendant, his car, and the package were transported to the Beaver County Sheriff's Office. At the station the package was subjected to a sniff test by a drug-detection dog, who alerted to the presence of drugs. Without first obtaining a search warrant, Bauer opened one end of the package and performed a field test on its contents. The test indicated that the package contained methamphetamine.

Defendant was indicted for possession of 50 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and for using or carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). (The record on appeal does not indicate how, when, or where the firearm was found.) He moved to suppress the methamphetamine discovered during the traffic stop, arguing that Bauer lacked reasonable suspicion to inquire about the package in the glove box. (He also argued that by drawing his firearm and ordering Defendant out of the car and onto the ground, Bauer effectively arrested him without probable cause, but he does not press that argument on appeal.) Following a hearing at which only Bauer testified, the magistrate judge recommended that Defendant's motion be granted because the package "was not obviously contraband," Aplt.'s App. at 45; Bauer lacked reasonable suspicion to ask about its contents (the magistrate judge discounted the officer's alleged experience with such packages because "the particulars of the experience were not identified or equated to the facts of this stop," Aplt.'s App. at 52); and Defendant's reaction to Bauer's questioning was therefore fruit of an illegal inquiry. The magistrate judge also found that Bauer had unlawfully opened the package at the police station without a warrant. The district court adopted the magistrate judge's Report and Recommendation in its entirety and granted Defendant's motion to suppress. The government appeals.

II. DISCUSSION

"In reviewing a district court's ruling on a motion to suppress evidence, we view the evidence in the light most favorable to the prevailing party and accept the district court's findings of fact unless they are clearly erroneous." United States v. Massie, 65 F.3d 843, 847 (10th Cir.1995). "The ultimate question of whether a search and seizure was reasonable under the Fourth Amendment is a question of law that we review de novo." Id. (internal quotation marks omitted). We address in turn the district court's rulings that the officer violated the Fourth Amendment by (1) questioning Defendant about the package during the traffic stop and (2) opening the package at the police station without a warrant.

A. Questioning during the traffic stop

Defendant's sole argument with respect to his detention during the traffic stop is that Sergeant Bauer's questions regarding the package in the glove box violated the Fourth Amendment. He contends that all the officer's observations following those questions, along with the drugs seized from the car, resulted from this unlawful inquiry and therefore must be suppressed as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). He does not challenge the initial stop or Bauer's ordering him out of the car and requiring him to kneel at the side of the road until backup officers arrived. We are thus confronted with the narrow issue of whether Bauer's questions about the package — asked after he observed both the package and Defendant's apparent attempts to push it under the papers in the glove box — violated the Fourth Amendment's prohibition against "unreasonable searches and seizures." U.S. Const.amend. IV. We conclude that they did not.

"A traffic stop is a `seizure' within the meaning of the Fourth Amendment, `even though the purpose of the stop is limited and the resulting detention quite brief.'" United States v. Williams, 271 F.3d 1262, 1266 (10th Cir.2001) (quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). The "touchstone" of Fourth Amendment analysis "is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) (internal quotation marks omitted). "Reasonableness, of course, depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers," id. at 109 (internal quotation marks omitted), and "is measured in objective terms by examining the totality of the circumstances." Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). We analyze the reasonableness of a traffic stop under the principles relating to investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See United States v. Holt, 264 F.3d 1215, 1228 (10th Cir.2001) (en banc).

At the outset we must distinguish between questioning that prolongs the detention and questioning that does not. When questioning prolongs the detention, the prolongation in itself constitutes a seizure under the Fourth Amendment, so we have repeatedly held that the questioning must be supported by at least reasonable suspicion. See, e.g., United States v. Sandoval, 29 F.3d 537, 542-43 (10th Cir.1994) (questioning about contraband that prolonged detention unreasonable because unsupported by reasonable suspicion of criminal activity); United States v. Walker, 933 F.2d 812, 816 & n. 2 (...