423 F.3d 1149 (10th Cir. 2005), 04-8039, United States v. Bradford

Docket Nº:04-8039.
Citation:423 F.3d 1149
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Collette Elizabeth BRADFORD, Defendant-Appellant.
Case Date:September 14, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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423 F.3d 1149 (10th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Collette Elizabeth BRADFORD, Defendant-Appellant.

No. 04-8039.

United States Court of Appeals, Tenth Circuit.

Sept. 14, 2005

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING, District Court No. 03-CR-101-B.

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Barry V. Voss, of Barry V. Voss, P.A., Minneapolis, Minnesota, for Defendant-Appellant Collette Elizabeth Bradford.

David A. Kubichek, Assistant United States Attorney for the District of Wyoming (Matthew H. Mead, United States Attorney for the District of Wyoming, with him on the brief), for Plaintiff-Appellee United States of America.

Before SEYMOUR, McWILLIAMS, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Defendant-Appellant Collette Elizabeth Bradford was indicted on one count of possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). Following the district court's denial of her pre-trial motion to suppress, she pleaded guilty with the condition that she could appeal the suppression ruling. We now consider her appeal of that ruling and the application of the Supreme Court's recent decisions in United States v. Booker, 125 S.Ct. 738 (2005), and Blakely v. Washington, 124 S.Ct. 2531 (2004). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Ms. Bradford's conviction and the district court's denial of her motion to suppress, vacate her sentence, and remand for resentencing.

I. BACKGROUND

The district court found the following facts, which are undisputed. See United States v. Bradford, 290 F.Supp.2d 1264 (D. Wyo. 2003). On March 15, 2003, Trooper Ben Peech of the Wyoming Highway Patrol observed a gold Chevrolet Malibu traveling eastbound on Interstate 80 in Laramie County, Wyoming. He pulled the Malibu over for following a semi-truck too closely and for failing to indicate lane changes. He asked the driver, Ms. Bradford, to show him the vehicle's paperwork and her driver's license. Ms. Bradford told Trooper Peech the car was rented and retrieved her driving documents.

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Trooper Peech noticed that Ms. Bradford was very nervous. She was breathing rapidly and intensely, and her face was pale white. She cupped her hands in front of her chest and clutched them to her body. She was shaking and sweating, and her eyes were opened very wide. Trooper Peech also observed that she had a new-looking duffle bag on the rear seat, a pillow was in a bag on the back seat, and a large number of fast food wrappers and potato chip bags were scattered throughout the car. He also saw a cellular phone. Based on the sum of these observations, Trooper Peech became suspicious that she was running drugs.

When Ms. Bradford handed Trooper Peech the rental agreement, her hands were visibly shaking and she fumbled her license as she retrieved it from her wallet. She used both hands to give it to Trooper Peech. Her legs were also shaking. Her level of nervousness did not dissipate, and beads of sweat began to form at the neckline of her shirt.

Trooper Peech asked Ms. Bradford to sit in his patrol car while he issued her a warning citation and conducted a routine check of her status. While he waited for her to follow him to the patrol car, he reviewed the rental agreement and noticed the car had been rented at the Los Angeles airport on March 13, 2003 and was to be returned to the Minneapolis/St. Paul airport on March 17, 2003. He also noticed it was a one-way rental for $104 per day. This increased his suspicions, based on his training that one-way rental agreements are a "large flag of criminal interdiction." Aplt's App. at 17.

When Ms. Bradford came to the patrol car, Trooper Peech noticed her hands and palms were glowing with sweat. When Trooper Peech commented on that, Ms. Bradford denied sweating and began rubbing her hands together continually in an attempt to wipe away the sweat. While Trooper Peech issued the citation, he conversed with Ms. Bradford about her travels. She said she was returning home to Minnesota from a family reunion in California. When he asked her how long the reunion was, she responded in a weak and high-pitched voice that it lasted about one week. He asked her where the reunion was held, and she said it was outside of Los Angeles because her grandmother was from there.

Trooper Peech called dispatch to conduct a routine check of Ms. Bradford's driving status, and her nervousness finally seemed to dissipate. She told Trooper Peech that she had flown to Los Angeles and rented the car to drive her grandmother to Cheyenne, Wyoming. When he asked how her grandmother got to California, Ms. Bradford responded that her sister and parents had driven to California and picked up her grandmother on the way. Trooper Peech asked how they got back to Minnesota, and Ms. Bradford stated that they had flown back.

Trooper Peech then asked Ms. Bradford where her grandmother lived in Cheyenne. Ms. Bradford paused and hesitated for a noticeable length of time before answering and her signs of nervousness returned. She was unable to say where her grandmother lived, only that she had directions to the house. When Trooper Peech asked if her grandmother lived in North or South Cheyenne, Ms. Bradford did not answer. At that moment, Trooper Peech stopped talking to Ms. Bradford because he observed a vehicle approaching them at about ninety miles per hour, moving rapidly from the left lane to the right lane. Trooper Peech and Ms. Bradford were sitting in the patrol car parked on the right shoulder. He saw that the vehicle was approximately a quarter of a mile away, drifting across the fog line to the right. Trooper Peech became concerned

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that the vehicle would crash into the rear of his patrol car. He suspected the vehicle was a "chase" car, often used by drug traffickers to ensure drugs reach their final destinations.

Trooper Peech did not follow the other car. He returned Ms. Bradford's documents and gave her a warning. He also asked her if she had anything in the vehicle he needed to know about. She said she did not. Her signs of nervousness intensified as she clasped her driving documents close to her chest. He asked whether there were guns, bombs, or drugs in the car, and Ms. Bradford swallowed hard several times before saying "no." When he asked if he could look in the trunk, and Ms. Bradford replied, "Um . . . I don't feel it's necessary, but thank you," while laughing nervously. Trooper Peech again asked if she had anything he needed to know about in the vehicle, and she told him she would prefer for him not to look. Trooper Peech told Ms. Bradford "you have a safe trip, okay."

Ms. Bradford exited the patrol car and began to walk toward her rental car. Trooper Peech reinitiated contact with Ms. Bradford between their cars. He asked her if it was okay to ask a few more questions. She said "sure." Trooper Peech then asked, "are you sure?" and she replied, "yeah."

Trooper Peech asked Ms. Bradford what her grandmother's name was. She repeated the question, paused, and with a squeaky voice, said her grandmother's name was Elizabeth Bradford. Trooper Peech then asked Ms. Bradford about her grandmother's phone number or area code, and she could not answer. She said her grandmother had moved to Cheyenne because California was too crowded and had lived there for about a year. She also said that she had no other relatives in Cheyenne and the family reunion was held at a town outside Los Angeles. When Trooper Peech asked the name of the town, she could not remember. She also stated that she flew to Los Angeles, rented the car, and drove from there. Trooper Peech observed that her responses were evasive, she repeated questions as if stalling for time to think, she paused for an unusual length of time before responding, and she laughed nervously while responding. Other signs of nervousness also returned, including profuse sweating and splotchiness on her skin.

Ms. Bradford then told Trooper Peech she wished to leave. He asked if he could search the car before she left, and her eyes began to water as if she were about to cry. Trooper Peech asked if she would be willing to wait for a K-9 unit, and she again stated she wanted to leave. Trooper Peech told her he would be temporarily detaining her while he called for a K-9 unit. She asked why, and Trooper Peech explained that he believed she was lying about the details of her trip and suspected she had drugs in her car.

Trooper Peech called for a K-9 unit. Ms. Bradford waited near her rental car, and Trooper Peech was in his patrol car. Less than a minute later, she came to the patrol car's passenger side door and opened it. She told Trooper Peech that she had a marijuana pipe in her car. Trooper Peech then called the K-9 unit to instruct it not to respond. Trooper Peech exited his patrol car and asked Ms. Bradford if she had anything else. She replied that there was also a small bag of marijuana in the car. Trooper Peech told her that if she was being honest and there was no other contraband in the car, he would issue a citation for possession of marijuana and release her. Ms. Bradford relaxed.

She walked to her vehicle and retrieved a blue colored pipe with residue consistent with burnt marijuana. She also gave Trooper Peech a small bag containing a

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green leafy substance consistent with marijuana. She stated that her cousin had purchased the marijuana for her in Los Angeles, but that she had not smoked any while driving. Trooper Peech said he needed to check the car to make sure she did not have any more marijuana. She immediately became nervous again. Trooper Peech instructed her to step...

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