U.S. v. Roberson

• Decision Date: 01 November 1993
• Docket Number: No. 92-4589,92-4589
• Citation: 6 F.3d 1088
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leroy ROBERSON, Jr., Lonnie Keeper, and LaWanda Whitlock, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1088

6 F.3d 1088

UNITED STATES of America, Plaintiff-Appellee, v. Leroy ROBERSON, Jr., Lonnie Keeper, and LaWanda Whitlock,

Defendants-Appellants.

No. 92-4589.

United States Court of Appeals,

Fifth Circuit.

Nov. 1, 1993.

Randal B. Gilbert, Lee, Gilbert & Morrison, Tyler, TX (court-appointed), for Roberson.

Gregory G. Fenlon, St. Louis, MO, for Keeper.

Michael Carroll, Tyler, TX (court-appointed), for Whitlock.

Wes Rivers, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Tyler, TX, for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Texas.

Before POLITZ, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit Judges.

POLITZ, Chief Judge:

Lonnie Keeper, Leroy Roberson, and LaWanda Whitlock appeal their convictions for various drug-trafficking offenses. We affirm all convictions except those based on the Travel Act.

Background

Shortly after midnight on Monday, October 14, 1991, Roberson, Keeper, and Whitlock were passengers in a minivan driven northbound by Darlene Linda McCleod on state highway 59 in Panola County, Texas. State Trooper Barry Washington, while pursuing a speeder, passed the van and observed its out-of-state license plates and four black occupants. Shortly thereafter Trooper Washington crested a hill, pulled onto the shoulder of the highway, doused his lights, and trained his radar gun on northbound traffic.

As the van approached, the radar gun registered 58 miles per hour, three miles per hour above the speed limit. The van, apparently the only moving vehicle on that stretch of road, changed lanes to distance itself as it passed the vehicle on the right shoulder. Trooper Washington noted that the lane change was unaccompanied by a signal and obviously regarded this as a serious traffic offense when committed by an out-of-state driver in Panola County. He immediately gave chase and pulled the van over.

Approaching the vehicle, Trooper Washington instructed McCleod to produce her driver's license, registration, and proof of insurance. McCleod informed him that the car was leased by a third party and produced a copy of the lease agreement. The lease to one Cheryl Allen did not identify McCleod as an authorized driver and the lessee was not among the passengers. Trooper Washington began to suspect that the vehicle might have been stolen. At this point, McCleod volunteered that she was a friend of Allen and that Allen was in St. Louis. McCleod claimed to be returning home after taking her mother to her grandmother's home in Houston.

Trooper Washington then asked the passengers for identification. Roberson could not produce a driver's license, but claimed responsibility for the car, stating that Allen had loaned it to him. Roberson told the trooper that Allen was still in Houston and would be returning to St. Louis in another vehicle. His suspicion further aroused, Trooper Washington decided to call Deputy David Deter for backup.

Upon Deputy Deter's arrival, the pair asked McCleod for her grandmother's phone number to confirm her story; McCleod could recall neither the number nor the address. Trooper Washington then requested McCleod's permission to search the luggage inside the van, and McCleod agreed. During the course of this search Trooper Washington noted an ether-like odor inside the van, a smell associated with cocaine. He immediately called for further assistance and visually inspected the outside of the van.

It was then that Trooper Washington noticed an unusually clean spare tire. ¹ He informed Deputy Deter of his suspicion that the tire contained cocaine, and then retrieved a pair of pliers to remove the cap on the valve stem; the cap was too tight to remove with his bare hands. Deputy Deter noted that while the spare tire was on a 15-inch rim, the tires on the van were on 14-inch rims.

In time additional backup arrived with a drug-sniffing dog. The third officer crawled beneath the van and released the air from the tire and detected the smell of mustard, frequently used to mask the odor of cocaine. The spare tire was then removed and presented to the dog, who alerted. After disassembling the tire in the appellants' presence at a local garage, the officers discovered that it contained 6.99 kilograms of cocaine.

The defendants were arrested and interviewed. McCleod, claiming to be Roberson's girlfriend, said that Roberson had simply asked her to accompany him on a trip from St. Louis to Houston. The couple had then traveled with Whitlock and Larry Keeper ² to Houston. McCleod explained that Larry Keeper had rented the minivan and later met Michael Keeper at a Houston hotel on the afternoon of October 12. Lonnie and Larry Keeper then left in the minivan, with Michael Keeper following close behind in a blue Chevy Corsica with Missouri plates. McCleod further related that all three men returned at about 8:30 p.m. and that she and her traveling companions left the next day. She claimed that Roberson had told her to fabricate the story about dropping her mother in Houston.

During her interview, Whitlock claimed that Larry Keeper had approached her boyfriend and offered to pay him $200 for her presence on the trip; Whitlock was to be paid an additional $500. Whitlock understood that the purpose of the trip was to purchase cocaine, and that the Keeper brothers were involved in cocaine trafficking. Before leaving for St. Louis, Larry Keeper had shown her a suitcase supposedly containing $40,000. She also claimed that Larry Keeper had previously delivered $4,000 worth of crack cocaine to an individual known as David Turner. She further stated that she, McCleod, Roberson, and Larry Keeper left St. Louis in the minivan and met Michael Keeper, who drove the blue Corsica. ³ She would later testify at trial that while the officers were removing the suspect tire from its rim she had asked Lonnie Keeper why, to which he responded "it's full of coke."

Roberson claimed to have been paid $150 dollars to help drive the van and to locate cars in the Houston area for the Keeper brothers. He admitted his awareness of the Keepers' involvement in illicit drug transactions but denied any knowledge of the cocaine-laden spare.

The charges against McCleod were dismissed shortly before trial. Lonnie Keeper and Roberson were convicted of conspiracy to possess cocaine with intent to distribute, possession with intent to distribute cocaine, and violation of the Travel Act. Whitlock was convicted of possession with intent to distribute cocaine and of violating the Travel Act. All timely appeal.

Analysis

Each defendant challenges, inter alia, the sufficiency of the evidence. Lonnie Keeper also complains of Trooper Washington's stop and search of the minivan.

Fourth Amendment Limitations on Search and Seizure

a. The stop

A motorist's expectation of privacy yields to a routine traffic stop for such violations as speeding or, as in this case, changing lanes without signaling. ⁴ Typically, a passenger without a possessory interest in an automobile lacks standing to complain of its search because his privacy expectation is not infringed. ⁵ Whereas the search of an automobile does not implicate a passenger's fourth amendment rights, a stop results in the seizure of the passenger and driver alike. ⁶ Thus, a passenger of a stopped automobile does have standing to challenge the seizure as unconstitutional. With these tenets in mind, we first consider Keeper's contentions.

If the minivan in which Keeper rode had been stopped or further detained on the suspicion that it carried drugs, then the stop or prolonged detention would have to be justified under the now familiar Terry ⁷ test. ⁸ In that event, the stop would have been unreasonable and the fruits thereof inadmissible absent an actual, reasonable suspicion that drugs were in or upon the van. ⁹ That, however, was not the case here. Trooper Washington testified at the suppression hearing that he stopped the van simply to investigate its failure to signal before changing lanes. He maintained that his stop did not exceed that scope until after he developed a reasonable suspicion that drugs were present. Keeper contends, albeit with little force, that the van did signal before changing lanes and that Trooper Washington's explanation is merely pretextual.

If Trooper Washington did not observe a traffic infraction--apart from the minor speeding offense which did not serve as a basis for the stop--before stopping the van and detaining its occupants, and if he simply acted on some vague suspicion, the fruits of the stop and subsequent search would be tainted and inadmissible in evidence. The question in the instant case therefore becomes whether Trooper Washington observed a traffic infraction before stopping the vehicle. There is no dispute that the vehicle changed lanes; Keeper concedes as much. Instead, Keeper argues, as he did in the district court, that Trooper Washington is mistaken in his belief that the van did not signal. ¹⁰ This polemic is oft-repeated daily in traffic courts across this country. In each case the issue is one of credibility, and in each case its resolution is left to the factfinder. Absent clear error, we will not disturb factual findings made on motions to suppress evidence. ¹¹ Finding none here, we next turn to the pretext argument.

Keeper's argument that the traffic stop was a mere pretext to search for drugs is bolstered substantially by anecdotal evidence of Trooper Washington's remarkable record for warrantless drug arrests. It appears that in the past five years, Trooper Washington has arrested 250 people on drug charges, all after traffic stops. Of those, only four were warrant-authorized. Indeed, this court has become familiar with Trooper Washington's propensity for patroling the fourth amendment's outer frontier. ¹² Nonetheless, sitting en banc this court, albeit divided, has simplified the pretext analysis by eliminating challenges to seizures that otherwise have legal bases. ¹³...