U.S. v. Gregory

• Decision Date: 18 March 1996
• Docket Number: No. 95-4005,95-4005
• Citation: 79 F.3d 973
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Charleston GREGORY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 973

79 F.3d 973

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.

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 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 furniture, appliances and other items which were put carelessly in the truck without being secured. The officer, still curious about the contents of the truck, then stepped onto the bed and leaned inside for a closer look. The officer testified that at that point he thought he could faintly detect the smell of marijuana, although "the other stench was more powerful." The officer stepped out of the truck, patted down the defendant and asked the defendant to again produce his driver's license. Without explanation, the officer returned to the patrol vehicle to run a license check and to request assistance from a back-up unit. Officer Barney estimated that one minute and twenty seconds had lapsed from the moment he pulled the defendant over to the side of the road until the time he requested the defendant to open the rear door of the U-haul truck.

While waiting for back-up assistance, Officer Barney stepped back into the truck, and moved two cardboard boxes which were dusty and "didn't appear to had been opened in a long, long time." The officer asked if he could look inside, and the defendant indicated that he could. Finding nothing unusual, Officer Barney waited for the arrival of another officer before continuing his search. When the second officer arrived, Officer Barney asked him to watch the defendant, and he climbed back into the truck and searched its contents. The defendant remained under the supervision of the second officer and was silent and calm during the search of the truck. Officer Barney found marijuana and approximately 10 kilograms of cocaine concealed in various plastic garbage bags, wrapped in clothing. The defendant was then handcuffed and placed under arrest.

The defendant's version of the facts slightly vary from that of the officer. Defendant testified that upon approaching him, the officer requested that he produce his license and rental agreement. Defendant stated that while examining the documents, the officer continued to question the defendant regarding his place of origin, destination, purpose of travel and the truck's contents. After defendant responded that he was hauling furniture, the officer asked the defendant if he could take a look in the truck and motioned him to get out of the cab. The defendant contends that the officer did not return his license and rental agreement to him until after he was out of the truck and had agreed to show the officer the truck's contents.

II.

In reviewing the denial of a motion to suppress evidence, we accept the factual findings of the district court and determination of credibility unless they are clearly erroneous. United States v. Flores, 48 F.3d 467 (10th Cir.) cert. denied, --- U.S. ----, 116 S.Ct. 122, 133 L.Ed.2d 72 (1995). We view the evidence in the light most favorable to the district court's finding and review de novo the ultimate determination of reasonableness under the Fourth Amendment. United States v. Little, 18 F.3d 1499, 1503 (10th Cir.1994) (en banc).

III.

Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). The reasonableness of the stop is evaluated under a two prong test set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), by asking first, "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 20, 88 S.Ct. at 1879.

Under Terry, a law enforcement officer is permitted to make a limited "seizure" of an individual suspected of criminal activity if the officer has "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Id. at 21, 88 S.Ct. at 1880. ³ This determination is controlled by our recent decision in United States v. Botero-Ospina. Under Botero-Ospina, "[o]ur sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated 'any one of the multitude of applicable traffic and equipment regulations' of the jurisdiction." Id. at 787.

The magistrate, whose report was subsequently adopted by the district court, found that when the defendant's truck...