U.S. v. Ludwig

• Citation: 641 F.3d 1243
• Decision Date: 22 April 2011
• Docket Number: No. 10–8009.,10–8009.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Sergei Paul LUDWIG, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

641 F.3d 1243

UNITED STATES of America, Plaintiff–Appellee,

v.Sergei Paul LUDWIG, Defendant–Appellant.

No. 10–8009.

United States Court of Appeals, Tenth Circuit.

April 22, 2011.

Thomas A. Fleener, Fleener & Vang, LLC, Laramie, WY, for Defendant–Appellant.Steven K. Sharpe, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), Cheyenne, WY, for Plaintiff–Appellee.Before MURPHY, TYMKOVICH, and GORSUCH, Circuit Judges.GORSUCH, Circuit Judge.

Driving through Wyoming one afternoon in August, Sergei Ludwig was stopped for speeding. The trooper became suspicious more might be afoot after Mr. Ludwig offered a strange story about his travel plans. Eventually, the trooper ran a certified drug dog around the car. The dog soon alerted and in a hidden compartment the trooper found 11 pounds of drugs. Before us, as before the district court, Mr. Ludwig argues that the trooper had no lawful basis to stop him, no reason to detain him, no authority for searching his car. He questions the dog's reliability, complaining that the dog successfully identifies “seizable” quantities of illegal drugs only 58% of the time. He challenges, as well, the indictment against him and the legality of the sentence he received. In the end, we affirm.

I

A

Patrolling Interstate 80, Trooper David Chatfield spotted a car traveling at what he estimated to be ten miles over the speed limit. After his radar gun confirmed this, the trooper turned on his emergency lights and gave chase. The car, driven by Mr. Ludwig, pulled onto the shoulder of the highway. But, oddly, the car didn't stop. Instead, it continued slowly along the shoulder. Only after almost a minute did it finally come to rest.

The trooper approached the car and Mr. Ludwig rolled down his window. A strong waft of cologne “hit [the trooper] in the face”—something the trooper testified is often used to mask the smell of illegal drugs. Aplt.App. Vol. II at 306. Mr. Ludwig appeared “very, very, very nervous.” Aplt.App. Vol. I at 192. So nervous that his hands were trembling and he had difficulty retrieving his wallet from his pocket.

Eventually, Trooper Chatfield asked Mr. Ludwig to follow him to his patrol car. As the trooper wrote up the speeding ticket, he asked Mr. Ludwig about his travel plans. Mr. Ludwig described himself as an “IT administrator.” Aplt.App. Vol. II at 314. He said he was returning to New Jersey from California. He said his employer had sent him to California to help a different company with a “server problem.” Aplt.App. Vol. II at 314. He said he chose to drive, not fly, all the way out west. Yet, he said, he had stayed in California only four days before beginning his trek back to New Jersey. Asked where he had spent last night, Mr. Ludwig said he had slept in his car. During their talk, Trooper Chatfield noticed that Mr. Ludwig declined to make eye contact and remained very nervous. Trooper Chatfield also noticed that both the registration and proof of insurance for Mr. Ludwig's car were in someone else's name.

By this time the trooper's suspicions were aroused. After he finished writing the ticket, the trooper asked Mr. Ludwig if he would answer a few more questions. Mr. Ludwig said no. Believing he had reasonable suspicion to detain Mr. Ludwig for further investigation, the trooper told Mr. Ludwig that he thought there were drugs in the car. The trooper instructed Mr. Ludwig to stand aside while he released a drug detection dog from his patrol car. Once released, the dog quickly alerted to Mr. Ludwig's vehicle. Trooper Chatfield opened the trunk and the dog alerted again. Searching the car, Trooper Chatfield spotted a recently welded metal patch that seemed to conceal a compartment. At this point, Trooper Regina Schulmeister arrived at the scene, closely followed by Lieutenant Tom Adams. Eventually, the officers found 11.3 pounds of ecstasy hidden in the compartment.

B

Finding himself under indictment for violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), Mr. Ludwig moved to suppress the drugs found in his car, arguing that his detention and the search of his car violated the Fourth Amendment. The district court disagreed and held evidence of the drugs admissible.

After this, Mr. Ludwig discovered that all three troopers involved in his detention had vehicles equipped with video cameras. Yet, to this point, the government had produced only two videos, from the cars of Trooper Chatfield and Lieutenant Adams. Mr. Ludwig had nothing from Trooper Schulmeister's car. When Mr. Ludwig complained about the missing video, the government replied that it had been automatically deleted by a program that erases videos after a certain period of time; the government asserted that its failure to save the video before deletion was accidental. Learning all this, Mr. Ludwig filed a motion to dismiss the indictment. He also filed a second motion to suppress.

After entertaining additional evidence and argument, the district court denied both motions. When it did, Mr. Ludwig entered a conditional guilty plea while preserving his right to appeal the disposition of his suppression motion, his motion to dismiss, as well as the sentence he eventually received. Those remain the three issues now before us on appeal. We discuss them by turn.

II

First is Mr. Ludwig's challenge to the disposition of his suppression motion. Because that motion independently challenges the constitutionality of his initial stop, his extended detention, and the search of his vehicle, we address each of these matters separately. In doing so, we review legal questions de novo but view the facts in the light most favorable to the government as the prevailing party. Watson v. United States, 485 F.3d 1100, 1103 (10th Cir.2007). We also accept the district court's specific factual findings unless clearly erroneous—no easy hurdle to clear, requiring the defendant to show that the findings are more than possibly or even probably wrong but pellucidly so. Id. at 1108.

A

“[T]he decision to stop an automobile is reasonable,” and so consistent with the Fourth Amendment, “where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Mr. Ludwig says probable cause was lacking in his case because Trooper Chatfield's radar gun was unreliable. Unreliable because of the trooper's allegedly shoddy maintenance habits. The district court, for its part, found none of this persuasive and credited the radar gun's reading. But even overlooking this, Mr. Ludwig's stop was still lawful. It's long been the case that an officer's visual estimation can supply probable cause to support a traffic stop for speeding in appropriate circumstances. United States v. Vercher, 358 F.3d 1257, 1262–63 (10th Cir.2004); United States v. Bourassa, 411 F.2d 69, 71 (10th Cir.1969). In this case, the district court found the trooper's visual estimate credible and we are given no reason to believe otherwise. To be sure, as Mr. Ludwig well notes, the eyes can deceive and the trooper's training in speed estimation dates back to his time in the police academy. But Mr. Ludwig neglects to mention that the trooper enjoyed a fine view, watching Mr. Ludwig's car approach as he was parked in the highway's median. Mr. Ludwig also fails to note the day was crystal clear and the trooper possessed 15 years' experience as a highway patrolman watching cars and estimating speeds. And Mr. Ludwig offers us no affirmative reason to think that the trooper forgot his training or that his estimate should be discredited for any other reason. In these circumstances, the district court's factual finding about the reliability of the trooper's visual estimation remains untouched, must be affirmed, itself sufficient to support the traffic stop.

B

Even if his stop was lawful, Mr. Ludwig says his continued detention after the trooper finished writing the ticket was not. For its part, the government concedes that Trooper Chatfield detained Mr. Ludwig beyond the time it took to issue a traffic ticket. Neither does (nor can) the government argue that Mr. Ludwig consented to this continued detention. So in order to justify Mr. Ludwig's continued detention after Trooper Chatfield finished writing the ticket—for that detention to be “reasonable” for Fourth Amendment purposes—it falls to the government to show that it had reasonable suspicion to believe criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In deciding whether this standard is met, we are told we must examine the “totality of the circumstances.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Several considerations, in combination, lead us to hold the reasonable suspicion standard satisfied here.

First, Mr. Ludwig didn't stop after the trooper signaled him to pull over. Instead, he moved onto the shoulder of the highway but then, for no reason compelled by traffic conditions, continued to drive for about “a quarter mile to a half a mile.” Aplt.App. Vol. II at 303. In all, Mr. Ludwig took 44 seconds to stop after crossing the shoulder. The trooper testified that he thought this behavior “unusual.” Id. Recognizing as much ourselves, this court has repeatedly held that a driver's failure to stop his vehicle promptly is a factor that can contribute to reasonable suspicion of criminal activity. See United States v. Villa–Chaparro, 115 F.3d 797, 799, 802 (10th Cir.1997); United States v. Elkins, 70 F.3d 81, 83 (10th Cir.1995); United States v. Walraven, 892 F.2d 972, 973, 975 (10th Cir.1989).

Mr. Ludwig responds that he stopped faster than any of the defendants in these other cases. And that may be so. But he overlooks this court's decision in United States v. Hunnicutt, where we factored into the reasonable suspicion analysis the fact that it took “ten to twelve seconds over the...