680 F.3d 651 (6th Cir. 2012), 11-5004, United States v. Stepp

Docket Nº:11-5004.
Citation:680 F.3d 651
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Tommie STEPP, Defendant-Appellant.
Attorney:Doris Randle-Holt, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. Joseph C. Murphy, Jr., Assistant United States Attorney, Memphis, Tennessee, for Appellee.
Judge Panel:Before: KEITH, BOGGS, and MOORE, Circuit Judges. MOORE, J., delivered the opinion of the court, in which KEITH, J., joined. BOGGS, J., concurred in the result only.
Case Date:May 17, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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680 F.3d 651 (6th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Tommie STEPP, Defendant-Appellant.

No. 11-5004.

United States Court of Appeals, Sixth Circuit.

May 17, 2012

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ON BRIEF:

Doris Randle-Holt, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant.

Joseph C. Murphy, Jr., Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: KEITH, BOGGS, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which KEITH, J., joined. BOGGS, J., concurred in the result only.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Tommie Stepp (" Stepp" ) appeals his conviction for one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Stepp entered a conditional plea of guilty, reserving the right to appeal the denial of his motion to suppress evidence obtained during the course of a traffic stop. Stepp now appeals the denial of his suppression motion, arguing that evidence was obtained in violation of his Fourth and Fifth Amendment rights and that the district court abused its discretion in preventing his expert from testifying at the suppression hearing. Stepp also appeals the imposition of a special condition of supervised release prohibiting him from obtaining full time work as a boxer upon his release from prison. For the following reasons, we AFFIRM the district court's denial of Stepp's motion to suppress and the district court's decision to exclude Stepp's expert from testifying at the suppression hearing. We REVERSE the district court's imposition of the special condition of supervised release and REMAND for resentencing without the improper condition that Stepp obtain and maintain employment outside the field of boxing.

I. BACKGROUND

On April 16, 2009, Tommie Stepp and a co-defendant, Cedric Boswell, were driving west on Interstate 24 in a Hyundai Sonata in Rutherford County, Tennessee. Shortly after 8:45 a.m., they passed Deputy Lawson of the Rutherford County Sheriff's Department, who was parked in the median. R. 79 (Suppression Hr'g Tr. at 11). Deputy Lawson became suspicious of the Hyundai Sonata because it was a rental car. He followed the car and radioed for a license-plate check. The check revealed that the plate was not registered to a Sonata, but instead to a 2008 Chevrolet Express van. Id. at 15, 16. Deputy Lawson decided to initiate a traffic stop to investigate the plate mismatch, and as the car pulled over he also observed that the right rear brake light was not working. Id. at 18-19. The stop began at 8:53 a.m. Id. at 19. 1

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Deputy Lawson approached the Sonata, which was driven by Cedric Boswell, and explained that he had stopped them because the tag on the car came back for a Chevrolet van. He asked for identification, registration, and the rental agreement for the vehicle. Id. at 20, 59. Stepp and Boswell handed him their licenses and the vehicle's registration, which matched the description of the vehicle. Id. at 59-60. Deputy Lawson testified that both parties appeared nervous and that their hands were shaking when they handed him their driver's licenses. Id. at 24, 84. Deputy Lawson observed Stepp, who was sitting in the passenger seat, clutching a " boost phone" in his hands. Id. at 20. This type of phone made Deputy Lawson suspicious because they are " commonly used in the criminal world [because] they're hard to track." Id. at 21. Neither Boswell nor Stepp could produce a rental agreement. At one point Boswell asked if he could check the trunk, opened it briefly, moved something aside, then shut the trunk. Id. at 20. Deputy Lawson asked Boswell if he was listed as an authorized driver on the rental agreement, which Boswell believed was in Stepp's name, and Boswell stated he did not believe he was. Id. at 21. Boswell returned to the driver's seat, and Deputy Lawson returned to his vehicle to conduct license checks on both Boswell and Stepp. Id. at 22-23. It was now approximately 8:55 a.m. Id. at 23.

The first criminal history check that Deputy Lawson ran returned a prior felony conviction for narcotics for Stepp. Id. at 22. The second database, which was more extensive, indicated that Boswell had previously been investigated by the DEA for trafficking cocaine. Id. at 24. While he was waiting for the results of these checks, Deputy Lawson called a backup officer for assistance. At some point the backup officer arrived, and Deputy Lawson testified that he instructed the backup officer to contact the rental-car company regarding the status of the vehicle and the DEA agent responsible for investigating Boswell. Id. at 25.

Thirteen minutes later, Deputy Lawson returned to the Sonata. R. 93 (Video at 9:49:40-10:02:41) (approximately 8:55 to 9:08 a.m.). Although he had not yet resolved the discrepancy relating to the license plate and the description of the vehicle, he informed Boswell that he would issue a warning ticket. Deputy Lawson asked Boswell to exit the vehicle so he could procure information necessary for the citation. R. 79 (Suppression Hr'g Tr. at 26). Deputy Lawson conducted a quick pat down of Boswell and began asking him questions and filling out the citation. R. 93 (Video at 10:03:13). Deputy Lawson testified that during his routine questioning, Boswell initiated conversation, offering that he was a boxer traveling from Atlanta to Nashville to train in a gym. When Deputy Lawson asked him what gym, Boswell became nervous and could not provide the name. R. 79 (Suppression Hr'g Tr. at 26-27). At this point, Deputy Lawson testified that he had acquired reasonable suspicion that Boswell and Stepp were engaged in criminal activity based on the totality of the circumstances. Id. at 84. Deputy Lawson questioned Boswell for a total of four minutes, from approximately 9:08 to 9:12 a.m. R. 93 (Video at 10:03:13-10:07:05). During this conversation, Deputy Lawson explained that he was investigating secondary crimes and asked Boswell for consent to search the vehicle, and Boswell told him to ask Stepp.

At approximately 9:12 a.m., Deputy Lawson approached Stepp, who was still in the vehicle, asking him about their final destination. R. 93 (Video at 10:03:05). Stepp repeated the story about traveling to Nashville to train at a boxing gym, but also could not identify the gym by name or

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general location. R. 79 (Suppression Hr'g Tr. at 27-28). Deputy Lawson asked if he could search the car, and Stepp did not directly answer, stating they were in a hurry. Id.

Following this conversation, between 9:13 and 9:14 a.m., Deputy Lawson radioed for the K-9 unit to conduct a drug sniff of the vehicle. Id. at 24, 28 (citing Dispatch Log); R. 93 (Video at 10:07:51). The dog unit arrived at approximately 9:17 a.m.,2 accompanied by Sergeant Edward L. Young. R. 93 (Video at 10:10:55). While waiting for the dog unit to arrive, Deputy Lawson continued to question Boswell. He also asked Stepp to exit the vehicle and took away his cell phone. Although Deputy Lawson testified that he had not yet completed his investigation of the license-plate mismatch, he did not testify that either he or the backup officer conducted any further investigation into that issue after the decision to call the K-9 unit was made at 9:14 a.m., nor does the video reflect any continuation of work on the citation during the three minutes that elapsed between the call and the dog's arrival.3 The drug dog alerted to the presence of drugs while passing the driver's side door at 9:18 a.m.4 R. 93 (Video at 10:11:26). Deputy Lawson then searched the vehicle and discovered two kilograms of cocaine hidden in a cookie box in the trunk.

At 9:19 a.m., immediately following the discovery of cocaine, Deputy Lawson read Boswell and Stepp their Miranda rights and placed them under arrest. R. 79 (Suppression Hr'g Tr. at 29-30); R. 93 (Video at 10:12:33). From the time that Boswell and Stepp were pulled over to the time they were arrested, a total of twenty-four minutes had elapsed. R. 93 (Video at 9:48:19-10:12:33). Stepp then gave a written statement and agreed to cooperate with the police by delivering the cocaine to the planned destination in Memphis, which he did.

Following his indictment for one count of conspiracy with the intent to distribute cocaine, in violation of 21 U.S.C. § 846, Stepp moved to suppress the evidence found in the Hyundai Sonata as taken in violation of his Fourth Amendment rights. The district court held a two-day evidentiary hearing, at which both Deputy Lawson and Officer Young were called by the government. Stepp then sought to call Samuel Kenneth Jones, Sr., (" Jones" ), as " an expert in training dogs." R. 80 (Suppression Hr'g Tr. at 163). The government objected to Jones testifying and was permitted to cross-examine (voir dire) Jones on his qualifications. Jones testified that he had trained dogs for approximately fifty years, thirty of which were spent training dogs for various forms of police, military, and civilian work. Id. at 161-62.

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He admitted that he had trained only two or three dogs for drug work during his tenure as a trainer, the last of which was ten years before he was called to testify. Id. at 164. He had no certifications in training drug dogs, 5 and he had never been a police dog handler. Id. at 165-66. The government then submitted that Jones was " not qualified to testify on drug dogs," and following brief re-direct, the district court sustained the government's objection. Id. at 167-68. The...

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