456 F.3d 850 (8th Cir. 2006), 05-3517, United States v. Coney

Docket Nº:05-3517, 05-3590, 05-3931.
Citation:456 F.3d 850
Party Name:UNITED STATES of America, Appellee, v. Courtney Allen CONEY, Appellant. United States of America, Appellee, v. Robert Allen Coney, Appellant. United States of America, Appellee, v. Marco Allen Coney, Appellant.
Case Date:August 04, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 850

456 F.3d 850 (8th Cir. 2006)

UNITED STATES of America, Appellee,


Courtney Allen CONEY, Appellant.

United States of America, Appellee,


Robert Allen Coney, Appellant.

United States of America, Appellee,


Marco Allen Coney, Appellant.

Nos. 05-3517, 05-3590, 05-3931.

United States Court of Appeals, Eighth Circuit.

August 4, 2006

Submitted: April 19, 2006.

Appeals from the United States District Court for the District of Nebraska.

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[Copyrighted Material Omitted]

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Joel G. Lonowski, argued, Lincoln, NE, for appellant Robert Coney.

John C. Vanderslice, argued, Asst. Federal Public Defender, Lincoln, NE, for appellant Marco Coney.

Counsel did not present argument on behalf of Courtney Coney, but Gary R. Bryant-Wolf of Minneapolis, MN, submitted Courtney's brief.

Nancy A. Svoboda, argued, Asst. U.S. Atty., Omaha, NE, for appellee.

Before LOKEN, Chief Judge, BOWMAN and BYE, Circuit Judges.

BOWMAN, Circuit Judge.

Brothers Courtney Allen Coney, Robert Allen Coney, and Marco Allen Coney1 (collectively, the defendants) appeal the denial by the District Court2 of their motions to suppress. We affirm.


On a cold but sunny day in December 2004, Deputy Bill Maddux of the Seward County (Nebraska) Sheriff's Office was running stationary radar on Interstate 80. In the early afternoon, Maddux clocked a van occupied by the defendants traveling eighty-one miles per hour. Because the maximum speed limit was seventy-five miles per hour, Maddux made a traffic stop of the van. Robert was in the driver's seat, Marco was in the front passenger's seat, and Courtney was in the far back of the van on the rear-bench seat. After Maddux informed Robert that he had been speeding, Maddux asked Robert to come to the patrol car. Robert obliged. While inside the patrol car, Maddux told Robert that he was going to receive a warning for speeding. Maddux checked the status of Robert's driver's license, checked to see if any outstanding warrants for Robert existed, and because the van was rented, reviewed the van's rental agreement. The rental agreement listed the defendants' mother as the renter and Courtney as the additional driver. While performing these duties, Maddux asked Robert about his travel plans, e.g., where the brothers had been and where they were going. Maddux then asked Robert to stay in the car so that Maddux could go to the van to ask Courtney and Marco some questions about the rented van, since the renter was not present. Maddux asked Marco about the rental agreement and also asked Marco and Courtney about their travel plans, including where they had been and where they were going. Maddux then told Marco that he was going

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to write a warning to Robert for speeding and that they would be finished shortly.

When Maddux returned to the patrol car, he finished writing the warning to Robert, again asked Robert where he had been, and received communications from dispatch that Robert's license was valid and that no warrants were outstanding. Maddux returned Robert's license and rental agreement, issued a written warning, and told Robert "that he was free to go." Suppression Hearing Transcript at 44:6–7. After Robert had exited the patrol car but before he shut the door, Maddux asked Robert if he would mind talking for a minute. Robert agreed to do so. Because it was cold outside, Maddux asked Robert if he would mind sitting in the patrol car. Robert agreed and returned to the front seat. Maddux then asked Robert if he would mind staying in the patrol car while Maddux returned to the van to talk to Courtney and Marco. Robert agreed to remain in the patrol car and never indicated that he did not want to remain there. At this point, approximately fifteen minutes had elapsed since Maddux had clocked the van traveling over the speed limit.

Returning to the van, Maddux asked Marco if he would talk to Maddux for a few minutes. When Marco agreed, Maddux asked if Marco would mind stepping out of the van to talk. Marco exited the van. While standing in front of the van, the two men talked about the brothers' trip. Maddux asked Marco if he had any luggage, illegal drugs, or a weapon in the van. After Marco said that he had a few bags but did not have drugs or weapons, Maddux asked Marco for permission to search his bags. Marco said, "[Y]eah, that's fine." Id. at 48:8. Marco then asked Maddux why he was asking these questions. Maddux said that a few things were not adding up and that he wanted to make sure that Marco did not have any of the items discussed. For officer safety reasons, Maddux asked Marco to stand in the ditch in front of the van.

Maddux returned to the van to seek Courtney's consent to search the van since Courtney was listed on the rental agreement. Maddux asked Courtney if he would mind talking for a few minutes. Courtney agreed. Maddux asked Courtney about the trip and if he had any bags, drugs, or weapons. Courtney said that he had bags but no drugs or weapons. When Maddux asked Courtney for permission to search his bags and the van, Courtney said no. Maddux returned to the patrol car and asked Robert if he had bags or drugs in the van. Robert said that he had a bag or two but no drugs. Maddux asked Robert for permission to search his bags. Robert refused. Maddux then asked Robert "if he would mind having a seat in the back seat of [Maddux's] patrol unit, which is a caged area where we haul prisoners." Id. at 51:14–16. Robert agreed and sat in the back seat. Maddux wanted Robert to sit in the back seat because he planned to bring Marco to the patrol car and because Maddux had developed "a major safety concern at that time." Id. at 52:6.

Maddux motioned for Marco to come over to the patrol car. When Marco arrived, he and Maddux spoke while standing at the rear of the car. Maddux thanked Marco for his cooperation and explained that Robert and Courtney had refused to allow a search of their bags or the van. Marco responded that he did not understand why his brothers would not allow Maddux to search and told Maddux that Marco wanted to talk to his brothers. Maddux informed Marco that he was going to call a drug-detection dog "to do a sniff around the" van. Id. at 53:18–19. Marco again asked to talk to Courtney, and Maddux said okay. Marco and Maddux then

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went to the van where Marco asked Courtney, "[W]hy don't you want them to search the van or search the bags, we ain't got anything." Id. at 54:18–19. After a brief discussion between Marco and Courtney about granting Maddux permission to search, Courtney said, "[Y]eah, yeah." Id. at 56:4. At that point, Maddux asked Courtney to step out of the van. Maddux "confirmed with [Courtney] three more times that it was okay for [Maddux] to search the vehicle." Id. at 56:23–24. Maddux then asked Courtney to stand on the shoulder of the interstate and asked Marco to sit in the front seat of the patrol car. Maddux told Marco that Maddux would wait for a state trooper to arrive before conducting the search. Three to four minutes later, a state trooper arrived on the scene.

Maddux talked to the state trooper while standing between the van and Maddux's patrol car. Marco then exited the patrol car and said that he would open the van's rear door so that Maddux could search. Maddux told Marco to return to the patrol car and that if he needed anything, he should get Maddux's attention without leaving the car. Marco returned to the car. About a minute later, Marco again got out of the patrol car and asked if he could open the van's rear door. Maddux asked Marco to return to the car, which Marco did. About another minute later, a third state trooper arrived, at which time Maddux began searching the van. Maddux discovered shoe boxes containing four packages of cocaine and three packages of marijuana. Maddux also "found a loaded and chambered semi-automatic [45-caliber] handgun" behind the back seat, accessible only through the rear cargo hatch of the van. Id. at 69:14–15.

Courtney, Robert, and Marco were charged with conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846 (2000), and with possession with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1). Additionally, Marco was charged with possession of a firearm in furtherance of the crimes contained in the other charges, in violation of 18 U.S.C. § 924(c)(1)(A). Each defendant filed a motion to suppress the evidence gained from the search of the van.

The Magistrate Judge held a suppression hearing, at which Maddux, Courtney, Robert, and the defendants' mother testified. At the conclusion of the hearing, the Magistrate Judge ruled from the bench that the motions to suppress should be denied. First, the Magistrate Judge determined that Maddux had probable cause to stop the van for speeding. Second, the Magistrate Judge determined that at the time Maddux gave Robert the warning, returned Robert's license and the rental agreement, and told Robert that he was free to go, Maddux did not have reasonable suspicion to further detain Robert. The Magistrate Judge stated, however, that "the officer got lucky." Suppression Hearing Transcript at 326:17. The Magistrate Judge concluded that when Maddux "asked Robert if he would get back into the [patrol] car and answer some questions [and] Robert agreed and did so[, . . .] at that point [it was] a consensual encounter between citizen and officer." Id. at 326:17–24. Third, the Magistrate Judge addressed the question of whether Maddux had obtained consent to search the van. Stating that "it's a very close question," the Magistrate Judge "side[d] with the officer on the credibility of the consent issue." Id. at 328:9–11. The Magistrate Judge concluded, "I think that Courtney did give consent. And I think that there's nothing to indicate...

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