569 F.3d 1263 (10th Cir. 2009), 07-4126, United States v. Eckhart

Docket Nº:07-4126, 07-4022.
Citation:569 F.3d 1263
Opinion Judge:O'BRIEN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David A. ECKHART, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Juan Perez Cardenas, Defendant-Appellant.
Attorney:Brett Tolman, United States Attorney, and Diana Hagen, Assistant United States Attorney, Office of the United States Attorney for the District of Utah, Salt Lake City, UT, for Plaintiff-Appellee. Steven B. Killpack, Utah Federal Defender, and Scott Keith Wilson, Assistant Federal Defender, Utah F...
Judge Panel:Before O'BRIEN, TYMKOVICH and HOLMES, Circuit Judges.
Case Date:June 29, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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569 F.3d 1263 (10th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

David A. ECKHART, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Juan Perez Cardenas, Defendant-Appellant.

Nos. 07-4126, 07-4022.

United States Court of Appeals, Tenth Circuit.

June 29, 2009

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Brett Tolman, United States Attorney, and Diana Hagen, Assistant United States Attorney, Office of the United States Attorney for the District of Utah, Salt Lake City, UT, for Plaintiff-Appellee.

Steven B. Killpack, Utah Federal Defender, and Scott Keith Wilson, Assistant Federal Defender, Utah Federal Defender's Office, Salt Lake City, UT, for Defendant-Appellant Eckhart.

Mary C. Corporon of Corporon & Williams, Salt Lake City, UT, for Defendant-Appellant Cardenas.

Before O'BRIEN, TYMKOVICH and HOLMES, Circuit Judges.

O'BRIEN, Circuit Judge.

Juan M. Perez Cardenas and David A. Eckhart were stopped because the license plate on their truck was not visible to a police officer traveling in the adjoining lane. After twenty-seven minutes of questioning, they consented to a search of their vehicle, which revealed 1,027 grams of cocaine and 213 grams of methamphetamine. Charged with possession of a controlled substance with intent to distribute, they filed motions to suppress, which were denied. Their cases were then severed and each pled guilty, reserving the right to appeal from the denial of the motion to suppress. The court denied their requests for minor participant status and sentenced each defendant to 87 months imprisonment, the low end of the advisory guideline range. In separate appeals, Cardenas (07-4022) and Eckhart (07-4126) now challenge the denial of their motions to suppress and the denial of minor participant status. Because the factual and legal arguments underlying these two appeals are the same, we have consolidated them for administrative purposes. Their arguments fail; we affirm.

I. BACKGROUND

A. Factual History

At 10:30 p.m. on Friday, June 17, 2005, Utah Highway Patrol Trooper Donald Robert Gould, a nine-year police veteran with specialized training in drug pipeline interdiction, was driving eastbound on a remote section of Interstate 80 in Tooele County, Utah, when he was passed by a small pickup truck traveling in the left lane. The truck had a California license plate, but Gould was unable to read the plate number. He ran the number two different ways, but it came up as " not on file" both times.1 Gould pulled the truck

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over, as he believed Utah law required license plates to be visible from a distance of one hundred feet.

After the stop, Gould illuminated the rear plate with his spotlight and was finally able to read the number. He contacted dispatch with the number and then approached the truck. As he did so, he noticed there were after-market metal plates bolted on the back bumper. He also noticed the light designed to illuminate the license plate was not working. In his opinion, the lack of a functioning plate light impeded his ability to read the plate and a trailer hitch may also have obscured his view.

Gould asked the driver, Eckhart, for his license and registration. Eckhart produced a Pennsylvania license but did not produce the truck's registration, instead motioning to indicate the truck belonged to the passenger, Cardenas. Eckhart was " visibly shaking" when he handed Gould his license and did not make eye contact with Gould. (R. Vol. II (Eckhart), Supp. Vol. I (Cardenas) at 14.) Gould believed Eckhart's nervousness could indicate possible criminal activity. He asked Cardenas if it was his truck and Cardenas stated the truck belonged to his uncle. He also asked Cardenas for his driver's license but Cardenas was only able to produce a Washington identification card.

Gould asked Eckhart why he and Cardenas had the truck. Eckhart stated he was going back to Pennsylvania and Cardenas was going along for a vacation. Gould observed only a small backpack in the truck, which he believed was inconsistent with Eckhart's story of a cross-country trip. Gould suspected the truck might be stolen because neither Eckhart nor Cardenas could provide documentation for the vehicle. He decided to separate Eckhart and Cardenas and ask about the truck and their travel plans.

He first spoke to Eckhart, who answered as follows. Eckhart knew Cardenas because he had a friend, Jorge, in Pennsylvania, who was related to Cardenas. He and Cardenas were planning to visit Cardenas' uncle in Pennsylvania. Despite their supposed friendship, Eckhart did not know Cardenas' last name but knew him only as " Juan." Eckhart had just been laid-off but had worked in landscaping and construction. He had flown from Pennsylvania to Los Angeles, where he was picked up by Cardenas and his uncle. The three men drove to Fresno, where Eckhart vacationed for about a week. Eckhart asked Cardenas' uncle for permission to borrow the truck to drive back to Pennsylvania. The uncle said he could but only if Cardenas accompanied him on the trip. Eckhart and Cardenas left California that morning and had been taking turns driving all day. As Gould and Eckhart were standing behind the truck, Eckhart acknowledged the license plate was difficult to read.

While questioning Eckhart, Gould received a phone call from dispatch advising the truck had not been reported stolen. This did not alleviate Gould's suspicion, however, because stolen vehicles are not always listed in the national database. Based on his training and experience, Gould also suspected Eckhart and Cardenas might be transporting illegal narcotics.

Gould then questioned Cardenas. Cardenas' story was consistent with Eckhart's in many respects, though Cardenas stated he had not accompanied his uncle to the airport in Los Angeles to pick up Eckhart. He said the truck had been purchased by his uncle about four days ago. He said Eckhart was traveling to

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Pennsylvania to visit his father and he (Cardenas) was going along for the ride. He did not intend to visit his relative in Pennsylvania because he had to be back in Fresno on Monday (three days later) for work. When Gould asked how Cardenas was planning to get back, Cardenas stated he would either drive the truck or take a bus, which Gould found to be implausible because of the short time-frame.2

Gould and Cardenas returned to the truck. Cardenas still could not locate a registration. Gould requested a phone number for Cardenas' uncle so he could confirm his ownership of the truck. Cardenas provided a phone number with a Fresno area code and stated his Fresno uncle's name was " Jose." (Eckhart later said the uncle's name was " Pedro." ) Gould's dispatcher called the phone number and spoke with someone who said the truck had been sold. Obviously, this call did not confirm rightful possession of the truck.3

Trooper Croft arrived at the scene. Gould explained what had happened and Croft agreed criminal activity was likely. Continued questioning revealed Eckhart had been driving the whole time because Cardenas did not have a driver's license. After more questioning (and the arrival of at least one or two more officers), Gould asked Eckhart whether there was any contraband in the truck such as large amounts of cash or illegal drugs. Eckhart answered " no." Gould then asked Eckhart for permission to search the truck. Eckhart said, " I don't care." (Id. at 31.) Gould asked him again and he said, " sure." ( Id. ) Gould asked Cardenas if there was anything in the truck he needed to know about. Cardenas said he was not aware of anything. Gould then asked Cardenas if it was okay to search the truck and he said, " go ahead." ( Id. at 33.)

The officers removed the items in the truck bed and began searching, looking in particular for a hidden compartment. Gould called for a drug dog, who arrived at the scene with his handler approximately twenty minutes later. The dog alerted to the shifter boot and the passenger side air vent. Nothing was found in either location. Gould then searched the items removed from the truck bed. He looked closely at a small red cooler which appeared to have been modified. Gould separated the lining of the cooler from the body and discovered three packages where the insulation should have been. The packages contained a substance which tested positive in the field for methamphetamine. The packages were later determined to contain 1,027 grams of cocaine and 213 grams of methamphetamine.

B. Procedural History

On July 21, 2005, Eckhart and Cardenas were charged with possession of methamphetamine with intent to distribute.4 Cardenas moved to suppress the statements made during the stop and the evidence discovered during the search. A magistrate judge held an evidentiary hearing at which Gould testified. The magistrate concluded: (1) the traffic stop was justified at its inception; (2) the stop was not unreasonably broad in scope; (3)

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Cardenas had standing to contest the search but validly consented to it; and (4) the stop was not tainted by the officers' failure to advise Cardenas of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district judge adopted the report and recommendation with one exception; he concluded Cardenas did not have standing to challenge the search and therefore did not consider whether the consent was valid.

After the court ruled on Cardenas' motion, Eckhart filed a motion to suppress raising the same arguments made by Cardenas. The court ruled Cardenas' motion would apply to Eckhart and denied the motion, thus preserving Eckhart's right of appeal.

Cardenas and Eckhart...

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