79 F.3d 973 (10th Cir. 1996), 95-4005, United States v. Gregory

Docket Nº:95-4005.
Citation:79 F.3d 973
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Paul Charleston GREGORY, Defendant-Appellant.
Case Date:March 18, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 973

79 F.3d 973 (10th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Paul Charleston GREGORY, Defendant-Appellant.

No. 95-4005.

United States Court of Appeals, Tenth Circuit

March 18, 1996

Page 974

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Utah (D.C. No. 93-CR-179S).

Larry E. Reed of Hassan & Reed, Minneapolis, Minnesota (Hakeem Ishola of Yengich, Rich & Xaiz, Salt Lake City, Utah, with him on the brief) for Defendant-Appellant.

David J. Schwendiman, Assistant United States Attorney, Salt Lake City, Utah (Scott Matheson, Jr., United States Attorney, and Bruce C. Lubeck, Assistant United States Attorney, on the brief) for Plaintiff-Appellee.

Before EBEL, Circuit Judge, McKAY, Senior Circuit Judge, and COOK, Senior District Judge. [*]

H. DALE COOK, Senior District Judge.

I.

The defendant, Paul Charleston Gregory, brings this appeal seeking review of the district court's order denying the defendant's motion to suppress evidence seized during a traffic stop. Our review concerns whether the stop and search of the defendant and his vehicle was illegal in view of our recent decision in United States v. Botero-Ospina, 71 F.3d 783 (10th Cir.1995) (en banc). We have jurisdiction pursuant to 28 U.S.C. § 1294(1), and reverse.

On July 21, 1993, at approximately 6:00 p.m., Officer Phil Barney of the Sevier County Sheriff's Office was patrolling Interstate 70 between Salina and Green River, Utah. 1 At this location, the terrain is mountainous and high desert. The roadway is winding. The weather conditions on that date were clear and windy. While in pursuit of a van going seven miles over the speed limit, Officer Barney passed a U-haul rental truck headed in the same direction which was being driven by the defendant, a black male. As the officer passed, he looked in his rear view mirror and saw defendant's U-haul truck cross two feet into the right shoulder

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emergency lane of the interstate. The incident was a single occurrence. The emergency lane measures approximately fourteen feet wide. The officer testified that crossing into the emergency lane of a roadway is a violation of Utah law. 2 The officer testified that such conduct could also be indicative of a sleepy or intoxicated driver. The officer said he decided to stop the vehicle because of the traffic violation and to see if the driver was awake but that he did not intend to conduct a DUI investigation. The officer immediately abandoned his pursuit of the speeding van, pulled over and waited for the U-haul truck to pass, then pulled out and pursued defendant's vehicle. Officer Barney turned on his overhead lights which activated a video camera. He did not indicate that he observed any further driving irregularities as he pursued and pulled over the driver of the U-haul truck.

Officer Barney approached the driver's side of the vehicle and asked the driver, defendant Paul Charleston Gregory, for his driver's license and rental agreement. The items were produced. The license was issued by the State of Minnesota and the U-haul rental agreement was in defendant's name. The rental agreement showed that the defendant had paid $1,700 cash to rent the truck. The officer inquired where the defendant was going and the defendant said St. Paul, and referred to it as his home. After initially obtaining defendant's driver's license, Officer Barney did nothing to determine whether the defendant was impaired, except to ask the defendant if he was "awake." The defendant responded that he was and inquired why he had been pulled over. The officer indicated through gesturing that the defendant had crossed over into the emergency lane. The defendant explained that the weave probably occurred when he was pouring a cup of coffee. On cross examination the officer admitted that there was no indication that the defendant was impaired from alcohol, and he appeared alert. The officer also admitted observing that the defendant was holding a cup, which he assumed contained coffee, and responded, "Good enough." The defendant was not cited for a traffic violation and no road sobriety test was conducted by the officer.

At this point the evidence is conflicting. Officer Barney testified that he returned the license and rental agreement to the defendant prior to casually inquiring as to the origin and the purpose of defendant's travels. The defendant said that he was coming from the Los Angeles area and was moving his sister's furniture to St. Paul. He stated that his sister and brother-in-law were traveling to St. Paul by bus.

Officer Barney testified that he became suspicious that the defendant was hauling something illegal. The officer testified that he arrived at this conclusion because every time he asked the defendant a question, the defendant "would swallow before he answered." He was also suspicious because of "the amount of the rental" and because the owners of the furniture "had taken another way of transportation" rather than joining the defendant in the truck. Based on these concerns, Officer Barney testified that he asked the defendant if he was carrying any illegal substances in the truck. The defendant said no. The officer asked if he could take a look in the truck. The defendant indicated that he could and got out of his truck, walked to the back and raised the sliding rear door as far as defendant could reach. The officer testified that he had a clear view of the contents which consisted of an assortment of old "junky" furniture that had a "stench of dirty, musty, unkempt, trash." The view revealed...

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