584 F.3d 935 (10th Cir. 2009), 07-3153, United States v. White

Docket Nº:07-3153, 07-3230.
Citation:584 F.3d 935
Opinion Judge:EBEL, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marlon A. WHITE, Sr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Bruce A. Richardson, Defendant-Appellant.
Attorney:B. Kay Huff, Lawrence, KS, for Defendant-Appellant Marlon A. White. Donald R. Hoffman, Hoffman & Hoffman, Topeka, KS, for Defendant-Appellant Bruce A. Richardson. Sangita K. Rao, Department of Justice, Criminal Division, Appellate Section, Washington, D.C. (Eric F. Melgren, United States Attorney...
Judge Panel:Before HARTZ, EBEL, and O'BRIEN, Circuit Judges.
Case Date:October 22, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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584 F.3d 935 (10th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,


Marlon A. WHITE, Sr., Defendant-Appellant.

United States of America, Plaintiff-Appellee,


Bruce A. Richardson, Defendant-Appellant.

Nos. 07-3153, 07-3230.

United States Court of Appeals, Tenth Circuit.

October 22, 2009

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B. Kay Huff, Lawrence, KS, for Defendant-Appellant Marlon A. White.

Donald R. Hoffman, Hoffman & Hoffman, Topeka, KS, for Defendant-Appellant Bruce A. Richardson.

Sangita K. Rao, Department of Justice, Criminal Division, Appellate Section, Washington, D.C. (Eric F. Melgren, United States Attorney, David Zabel, Assistant United States Attorney for the District of Kansas, with her on the briefs), for Plaintiff-Appellee United States of America.

Before HARTZ, EBEL, and O'BRIEN, Circuit Judges.

EBEL, Circuit Judge.

In these consolidated direct criminal appeals, Defendants-Appellants Marlon A. White, Sr. and Bruce Richardson challenge the district court's refusal to suppress illicit drugs discovered in their car during a traffic stop. Having jurisdiction to consider these appeals pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. Background

Because the district court denied Defendants' motion to suppress, we view the evidence presented at the suppression hearing in the light most favorable to the Government. See United States v. Turner, 553 F.3d 1337, 1344 (10th Cir.), cert. denied, __ U.S. __, 129 S.Ct. 2446, 174 L.Ed.2d 237 (2009). Viewed in that light, the evidence established the following:

During the early evening hours of Sunday, October 2, 2005, White was driving eastbound on Interstate 70 ("I-70" ) through Riley County, Kansas, in a silver Cadillac that he had rented in Las Vegas, Nevada. Richardson was a passenger in the car.

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At this same time, State Trooper Andrew Dean of the Kansas Highway Patrol was travelling westbound on I-70. Trooper Dean observed White's car heading east, among a group of four or five cars travelling at approximately the posted speed limit of seventy miles per hour. Dean turned his patrol car around and followed this group of cars.

As Dean proceeded eastbound in the left lane, gaining ground on the group of cars, he observed White, ten to twelve car lengths, or approximately 150 to 180 feet, ahead of the trooper's patrol car, enter the left lane and pass another vehicle. Trooper Dean observed that White pulled back into the right lane while he was still too close to the vehicle being passed:

As [the Cadillac] overtook the other vehicle in the right lane, it then changed lanes into the right lane within approximately two to three car lengths, 30 to 40 feet, approximately. The lane change, to me, was unsafe due to the fact the vehicle that had been passed had to apply its brakes in order to allow the Cadillac to have a safe distance between it and the Cadillac.

(R. v. 3 at 27.) Trooper Dean stopped White at approximately 6:50 p.m. for violating Kan. Stat. § 8-1516(a), which provides, in pertinent part, that " [t]he driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle."

During the traffic stop, White provided the trooper with White's valid Indiana driver's license and the signed rental agreement for the car. In response to Dean's inquiry, White explained that he and Richardson had been to Las Vegas for a few days and were returning home to Indianapolis. According to Trooper Dean, both White and Richardson appeared unusually nervous.

Dean returned to his patrol car to review White's driver's license and the car rental agreement. The rental agreement indicated that White had rented the car in Las Vegas on the previous day, October 1, and he was scheduled to return the car, also in Las Vegas, the next day, October 3. This information, which appeared inconsistent with White's explanation of their travel plans, coupled with White's and Richardson's unusual nervousness, made the trooper suspect that " some type of criminal activity [was] occurring." (R. v.3 at 42.) Trooper Dean, therefore, requested that the state patrol dispatcher run a check on White's criminal history. The dispatcher reported to Dean that White had " a past history of [two separate incidents of] drug-related charges" involving " marijuana or cocaine or methamphetamine." ( Id. at 43.) In light of that, Trooper Dean asked Wabaunsee County Sheriff's Deputy Goldner 1 to bring his drug-detection dog to the scene of the traffic stop.

In the meantime, Dean returned the driver's license and rental car agreement to White and issued him a warning for making an improper lane change. The trooper then asked White again about his travel plans. White explained that he and Richardson had flown to Las Vegas, stayed for four days, and were now returning to Indianapolis, where White had to be at work the next day, October 3. The pair were then going to return the rental car to Las Vegas the following day, October 4, which, according to the rental agreement, would have been a day late. Trooper

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Dean found these travel plans to be " very bizarre." ( Id. at 47.)

Although Trooper Dean had no intention of letting White and Richardson leave, Dean used the old highway patrol " two-step" in an attempt to get White to consent to further questioning and perhaps a search of the vehicle: After giving White back his driver's license and the rental car agreement, Dean stepped back away from the Cadillac and told White to " have a safe one," as if to end the traffic stop. ( Id. at 49.) But when White began to leave, Dean stepped back toward the Cadillac and inquired if he could ask White some additional questions. Although White initially nodded affirmatively, he ultimately did not bite on Trooper Dean's invitation for a consensual conversation, explaining that he had to get back to Indiana in time to go to work the next day.

Unable to obtain White's consent for further questioning, Dean then ordered White and Richardson to stay where they were and advised them that he was going to have a drug-detection dog conduct an exterior sniff of the vehicle. At this point, Trooper Dean called to see how close Deputy Goldner was to their location. Goldner was not close, and " advised [Dean] that it would speed up the process if we could ... get the Cadillac to the Alma, Kansas, Department of Transportation [" KDOT" ] office ... so [Goldner] could walk the dog around [White's car] there." ( Id. at 52-53.) This KDOT office was located eight or nine miles east of where Dean had stopped White and Richardson, but in the same direction that they had been travelling, and then another one-half to three-quarters of a mile north of the interstate. Trooper Dean directed White to follow him to the KDOT office.

On the way, White slowed his vehicle and turned into an " improved" turn-around built into the median, as if White was going to turn around and go westbound away from the trooper. ( Id. at 55.) Seeing this, the trooper turned through the highway median and doubled back around White, signalling him to continue eastbound toward the KDOT office. White complied, re-entering the eastbound lanes of the highway heading toward the KDOT office.

Notwithstanding this brief detour, the trip to the KDOT office took " five to ten minutes." ( Id. at 59.) Deputy Goldner arrived soon thereafter, along with several other state troopers. As the drug-detection dog sniffed the exterior of White's car, the dog alerted. Trooper Dean then searched White's car, finding three bundles of marijuana in the trunk. In light of this discovery, Dean arrested both White and Richardson. The entire episode, from the initial traffic stop to the drug discovery, lasted between twenty and thirty-five minutes.

At the request of the Kansas highway patrol, a private towing company towed the Cadillac to its lot. Two days later, while the car remained impounded there, Trooper Dean searched the Cadillac more closely, this time finding four " kilo-size" bundles of cocaine under the car's hood. ( Id. at 65.)

The United States charged White and Richardson each with several drug trafficking counts. White moved to suppress the evidence discovered as a result of the traffic stop, as well as any incriminating statements he may have made. Richardson joined that motion, and also sought to suppress the incriminating statements he made following his arrest. After an evidentiary hearing, the district court denied these motions. White and Richardson then each entered a guilty plea to the first count charged in the second superseding indictment-conspiracy to distribute cocaine, cocaine base and marijuana, in violation

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of 21 U.S.C. § § 812, 841(a)(1) and (b)(1)(A), 846, and 18 U.S.C. § 2.2 In exchange for these guilty pleas, the United States dismissed the remaining three charges pending against each Defendant. The district court sentenced White to 168 months in prison, and Richardson to 151 months. Both sentences were at the low end of their respective guideline ranges.

White's and Richardson's guilty pleas were conditional, made pursuant to Fed.R.Crim.P. 11(a)(2), enabling Defendants to bring these appeals challenging the district court's decision to deny their suppression motion. 3 In their plea agreements, each Defendant waived the right to appeal any other matter.

II. Standard of review

" In assessing a denial of a motion to...

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