U.S.A v. Simpson

• Decision Date: 28 June 2010
• Docket Number: No. 09-4127.,09-4127.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Christopher Wayne SIMPSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

609 F.3d 1140

UNITED STATES of America, Plaintiff-Appellee,v.Christopher Wayne SIMPSON, Defendant-Appellee.

No. 09-4127.

United States Court of Appeals, Tenth Circuit.

June 28, 2010.

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Daphne Oberg, Utah Federal Public Defender's Office (Steven B. Killpack, Utah Federal Defender, and Scott Keith Wilson, Assistant Federal Defender, with her on the briefs) Salt Lake City, UT, for Defendant-Appellant.

Stephen J. Sorenson, Acting Assistant United States Attorney, (Carlie Christensen, United States Attorney, with him on the brief) Salt Lake City, UT, for Plaintiff-Appellee.

Before HENRY, MURPHY and O'BRIEN, Circuit Judges.

HENRY, Circuit Judge.

Christopher Wayne Simpson challenges the denial of his motion to suppress narcotics found in his vehicle, asserting that a state trooper lacked reasonable suspicion to detain him past the legitimate ending point of a traffic stop. Although a close call, we hold that the continued detention was justified because the trooper had reasonable suspicion that Mr. Simpson was engaged in illegal conduct. Mr. Simpson's prior criminal conviction for drug trafficking, his extreme nervousness, and the fact that he provided inconsistent and evasive answers to queries about his travel plans together provided reasonable suspicion to justify extending a legitimate traffic stop to allow further questioning and a canine sniff of his automobile. Accordingly, the district court appropriately denied Mr. Simpson's motion to suppress.

I. BACKGROUND

A. Stop and search

On July 30, 2008, Nicholas Bowles, a Utah Highway Patrol Trooper, was working a drug interdiction assignment on Interstate 80 near Salt Lake City when he saw Mr. Simpson's Lexus driving eastbound. Trooper Bowles claimed that Mr. Simpson's car drew his attention because he was driving well below the speed limit, had his windows rolled down despite 95 degree heat, and appeared to be dragging something.

Trooper Bowles began to follow Mr. Simpson's car. He witnessed Mr. Simpson twice make lane changes without the required two-second delay after signaling. Trooper Bowles decided to pull Mr. Simpson over for this traffic violation. After the trooper signaled for him to pull over, Mr. Simpson stopped in the emergency lane, relatively close to the flow of traffic.

Trooper Bowles approached Mr. Simpson's car and saw the following: butane lighter refills in the rear pocket of the front passenger seat; a butane lighter in the ashtray; and a radar detector on the floor, pushed partly under the seat. When Mr. Simpson opened the glove compartment to retrieve a document, the trooper saw a package of energy pills.

Trooper Bowles instructed Mr. Simpson to exit his vehicle and to sit in the patrol car. Once in the patrol car, Trooper Bowles noticed Mr. Simpson's whole body trembling nervously. Trooper Bowles contacted dispatch and proceeded to question Mr. Simpson while waiting for dispatch to respond with a license and registration check. After a few minutes Trooper Bowles, who did not have any paper tickets available, told Mr. Simpson that he only would be given a warning for a traffic violation. Trooper Bowles stated that he did this to see if it would relieve the tension Mr. Simpson was experiencing. According to Trooper Bowles, this information did not make Mr. Simpson less nervous.

While sitting in the patrol car, Trooper Bowles questioned Mr. Simpson about his travel plans. He found that Mr. Simpson was vague and evasive in answering several other questions about his trip. Mr. Simpson told Trooper Bowles that he left Nebraska late Saturday or early Sunday, spent two and a half days driving to Reno, and had begun driving back to Nebraska on the Wednesday when Trooper Bowles stopped him. See Supp. Rec. vol. I, at 57. Trooper Bowles claimed that he was suspicious of Mr. Simpson's story that he went to Reno but did not go out or visit a casino and instead spent only a single night gambling at his friend's home.

Trooper Bowles also testified that while he spoke to Mr. Simpson in the patrol car, he witnessed Cica, his drug-sniffing dog, shred his “reward toy.” Trooper Bowles stated that the only other time Cica had exhibited such behavior was when there was a person in the patrol car who was found with marijuana. Id. at 59-61.

Additionally, Trooper Bowles noted that Mr. Simpson was traveling on “the major drug corridor in Utah.... [I-80] is used frequently to transport narcotics.” Id. at 63.

Trooper Bowles heard from dispatch that Mr. Simpson had previously been charged in Nebraska for transporting drugs. Trooper Bowles then notified Mr. Simpson that he would only receive a warning and Mr. Simpson then exited the vehicle. Id. at 64. At this point, Trooper Bowles inquired if he could ask him some more questions. After Mr. Simpson indicated that he wanted to continue on his way, Trooper Bowles instructed him to return to the vehicle.

Trooper Bowles then had the drug canine, Cica, sniff the exterior of the Lexus. The first time sniffing the exterior, Cica did not alert Trooper Bowles to any drugs. Trooper Bowles then “detail[ed]” Cica to again sniff particular areas of the car, and this time, Cica alerted to the presence of drugs. Id. at 67-69. After this alert, Trooper Bowles searched the car and found a kilogram of methamphetamine; 40 grams of heroin; eight syringes loaded with heroin; marijuana; prescription pills; and drug paraphernalia.

B. District Court Proceedings

Before the district court, Mr. Simpson filed a motion to suppress the evidence found in his vehicle. Mr. Simpson did not challenge the initial stop of his vehicle. Instead he argued that his continued detention violated the Fourth Amendment because Trooper Bowles lacked reasonable suspicion to continue the detention once the initial stop had in essence “ended.” In response, the government argued that Trooper Bowles had reasonable suspicion to continue to detain Mr. Simpson, and proceed with the canine sniff of his car. In the government's view, the subsequent search of the car was valid under the automobile exception because the “alert” by the dog constituted probable cause for such a search. Mr. Simpson's motion thus turned on whether Trooper Bowles had reasonable suspicion to detain Mr. Simpson past the time necessary to resolve the traffic violation.

In rejecting Mr. Simpson's motion, the district court held that Trooper Bowles had an objectively reasonable and articulable suspicion that illegal activity had occurred or was occurring. It included a list of fifteen facts that formed the basis of that suspicion:

1. Mr. Simpson was driving well below the speed limit;

2. Mr. Simpson had his windows rolled down on a very hot day;

3. Mr. Simpson appeared to be avoiding Trooper Bowles by twice changing lanes;

4. Mr. Simpson had a butane lighter and refills in the car;

5. Mr. Simpson had energy pills in the glove box;

6. Mr. Simpson had a radar detector that it looked like he was hiding;

7. Mr. Simpson was so nervous that his whole body was shaking;

8. Mr. Simpson's nervousness did not subside when Trooper Bowles told him he was only to issue a warning;

9. Mr. Simpson said he stayed in Reno a few days, but given the time frame he gave Trooper Bowles, the most he could have stayed was one night;

10. Mr. Simpson's trip was economically infeasible, given the high price of gas, the distance traveled, and the amount of time Mr. Simpson spent in Reno;

11. Mr. Simpson gambled at his friend's house instead of the casinos;

12. Mr. Simpson seemed vague in answering questions;

13. Cica tried to shred his reward toy, which Trooper Bowles had only observed once before, when there was a person in the car who was found with marijuana;

14. Mr. Simpson was driving on a major drug corridor from a place where drugs often come from to a place drugs often go to; and

15. Mr. Simpson had a previous drug running charge.

Rec. vol. I, at 89-90 (Order & Memorandum Decision, filed Feb. 27, 2009).

When interpreting these facts, the district court appropriately gave strong weight to Trooper Bowles's experience and training: “Trooper Bowles was allowed to make reasonable judgments based on his experience in drug enforcement to assess the circumstances he encountered at the time. This conclusion holds even though many of the facts are capable of innocent explanation.” Id. at 91; see United States v. Wood, 106 F.3d 942, 946 (10th Cir.1997) (“[D]eference is to be accorded a law enforcement officer's ability to distinguish between innocent and suspicious actions.”). In concluding that there was reasonable suspicion here, the court emphasized four specific facts: (1) Mr. Simpson's nervousness; (2) Mr. Simpson's vagueness and contradictions and “the implausibility of his story,” Rec. vol. I, at 92; (3) Mr. Simpson's previous conviction for transporting drugs; and (4) Cica's trying to shred his reward toy. Id. The district court concluded that the “remaining facts cited by the government range from weak ... to nearly weightless ... the court views them as part of the totality of the circumstances.” Id. Taken together, all the facts provided Trooper Bowles with reasonable suspicion to detain Mr. Simpson beyond the initial traffic stop. Accordingly, the court denied Mr. Simpson's motion to suppress.

II. ANALYSIS

On appeal, Mr. Simpson argues that the district court erred in denying his motion to suppress. As in the district court proceedings, he does not challenge his initial detention, but instead argues that Trooper Bowles lacked reasonable suspicion to detain him after announcing that Mr. Simpson would only receive a warning. United States v. Clarkson, 551 F.3d 1196, 1201 (10th Cir.2009) (“The traffic stop may be expanded beyond its original purpose ... if during the initial stop the detaining officer acquires reasonable suspicion of criminal activity, that is to say the officer must acquire a particularized and objective basis for suspecting the particular person stopped of criminal...