U.S. v. McRae

Decision Date19 April 1996
Docket NumberNo. 95-4070,95-4070
Citation81 F.3d 1528
PartiesUNITED STATES of America, Plaintiff--Appellee, v. Franchot Forsythe McRAE, Jr., Defendant--Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the District of Utah (D.C. No. 93-CR-O35-S).

Kenneth R. Brown, Salt Lake City, Utah, for Appellant.

Bruce C. Lubeck, Assistant United States Attorney (Scott M. Matheson, Jr., United States Attorney, with him on the brief), Salt Lake City, Utah, for Appellee.

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Franchot Forsythe McRae appeals his conviction and sentence on one count of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He was convicted by a jury following the denial of his motion to suppress cocaine seized following a traffic stop on Interstate 70 in Grand County, Utah. He was sentenced to 120 months imprisonment. We affirm.

BACKGROUND

On January 12, 1993, at mid-day, Utah Highway Patrol Trooper Ken Colyar observed a vehicle proceeding eastbound on Interstate 70 without a front license plate. The car had a California license plate on the rear. The sole occupant of the vehicle, Mr. McRae, was not wearing a seat belt. Officer Colyar stopped the vehicle, for the stated reason that both California and Utah require vehicles to have a front license plate and Utah requires drivers to wear seat belts.

When the officer stopped the car, he informed Mr. McRae of the reason for the stop. Officer Colyar testified that Mr Q. Okay. What did you ask Mr. McRae about the vehicle?

                McRae "indicated something to the effect that he wasn't sure of that [the front license plate requirement], it wasn't his car."   R. Vol.  II at 12.   When asked where he was going and whose vehicle he was driving, Mr. McRae told the officer that the car was rented and that he was "going to a friend's wedding in New York."   Id. at 13.   Officer Colyar asked for and received a valid California driver's license for Mr. McRae and the rental agreement for the car.   Mr. McRae's name was on the rental agreement, which indicated that he had rented the vehicle in Los Angeles on January 4, and that it was to be returned on January 14.   Officer Colyar testified as follows concerning the encounter
                

A. I asked him about that. I asked him if he was going to be able to turn it in in New York or how he was going to get from New York back to California in two days.

Q. What did he say?

A. I don't really recall exactly what he said. I asked if he was going to be able to turn the car in in New York. He says he wasn't sure. I asked if he would like to be charged a late fee, that sort of thing.

Id. at 15.

After informing Mr. McRae that he was going to issue him a citation, Officer Colyar returned to his patrol car, taking with him Mr. McRae's driver's license and the rental agreement. While sitting in his patrol car, the officer ran a driver's license check, a registration check and wrote out a warning for failing to have a front license plate and a citation for not wearing a seat belt. Officer Colyar testified that, while he was sitting in his patrol car, he observed the following about Mr. McRae:

A. He changed his demeanor in the car. He sat more upright, he adjusted his mirrors to watch me.

Q. You say he sat upright. As you were speaking with him about the document that he was giving you and asking where he was going, how was he seated?

A. He was seated, I call it--he was very relaxed, kind of slouched back. Just looked up at me very calmly, talking to me.

Q. And as you were at your vehicle, preparing to write whatever you were going to write, what did you see him do?

A. Like I say, he sat more upright, he adjusted the rearview mirror.

Q. Inside his vehicle?

A. Yes.

Q. What else did you see him doing?

A. He was watching me.

Q. How was he watching you?

A. He was looking in the mirror at me.

Q. Could you see his eyes?

A. Yes.

Id. at 17. The officer testified that such actions were "unusual." Id. at 45. Specifically, he testified that "[t]he way he did it I considered to be unusual ... [b]ecause sitting up straight and readjusting his mirror, most people don't do that when you pull them over." Id. (emphasis added). Officer Colyar further stated that "[t]he way he was watching me, the intensity with which he was doing it, yes, I consider that to be unusual." Id. (emphasis added). When the officer noticed Mr. McRae "watching" him, Officer Colyar asked for a "Triple I" check to see if Mr. McRae had a criminal record.

Officer Colyar was informed that Mr. McRae's driver's license was valid, but that he had been arrested for "numerous ... drug trafficking charges." Id. at 19. The police dispatcher advised the officer to use "extreme caution." Id. Officer Colyar asked for a back-up officer in the area.

After he finished writing the citation and warning, Officer Colyar walked back up to Mr. McRae's vehicle, leaving behind in his patrol car Mr. McRae's driver's license and rental agreement. The officer asked Mr. McRae if he had ever been arrested before, to which Mr. McRae responded that "he had a traffic citation that went to a warrant one time and that was it." Id. at 21. Officer Colyar proceeded to ask him if he had any firearms in the car, to which Mr. McRae said "no." Id. at 22. The officer asked if he had any alcohol in the car, to which he again said "no," and finally, Officer Colyar asked if Mr. McRae had any narcotics in the car. Mr. McRae again responded negatively. Id.

Officer Colyar then said, "[D]o you mind if I look in the car?" Id. at 22. He testified that Mr. McRae said "no, not really." Id. Officer Colyar then asked Mr. McRae "to step out of the car, advised him that I was going to pat him down for weapons, he said he understood." Id. As he was getting out of the car, Mr. McRae "reached in the backseat and put [a leather jacket] on." Id. at 22-23. While patting him down, the officer felt a "sharp object" in the pocket of the jacket. When he asked Mr. McRae if it was a weapon, Mr. McRae responded negatively. When asked to take it out of his pocket, Mr. McRae did so, thereby revealing a "plastic grommet type fastener." Id. at 24.

At this point, Officer Colyar's back-up, Trooper Haycock, arrived, who identified the fastener as coming from the trunk of the car. Officer Colyar testified that Trooper Haycock asked Mr. McRae if he could search the trunk of the car, and Officer Colyar said "he gave an affirmative, yes, go ahead, or something to that extent," although he couldn't "recall word for word." Id. at 26. Mr. McRae testified that he was never asked whether the officers could specifically search the trunk. Id. at 70-71. When they searched the trunk, they discovered a row of fasteners identical to the fastener found in Mr. McRae's pocket "all along the top edge of the carpet" and one missing fastener, with "crinkled" carpet around it. Officer Colyar pulled back the carpet at that spot, and observed cellophane packages inside, which contained cocaine. Mr. McRae was then arrested. The total length of time between the initial stop of Mr. McRae's car and the discovery of the cocaine was approximately five minutes. When the car was taken to police headquarters and a search warrant obtained, more packages containing cocaine were found.

Mr. McRae was indicted on one count of possession of cocaine with intent to distribute. He filed a motion to suppress the evidence seized from the vehicle. A magistrate judge held a hearing on the motion, and issued a report and recommendation recommending that the motion be denied. The district court adopted the magistrate judge's report, following de novo review of the record, and denied the motion. Following a two-day trial, the jury found Mr. McRae guilty. He now appeals, arguing: (1) the initial stop of his vehicle was an invalid pretextual stop; (2) after issuing the citation and warning, Officer Colyar lacked articulable suspicion to detain Mr. McRae further and question him about contraband; 1 (3) Officer Colyar lacked reasonable suspicion to frisk Mr. McRae; (4) Mr. McRae did not voluntarily consent to a search of his vehicle, including the trunk; (5) the scope of the search exceeded any consent that was given; and (6) there was insufficient attenuation between any voluntary consent and the unlawful stop, detention and frisk.

DISCUSSION

When reviewing the denial of a motion to suppress, "we accept the trial court's factual findings unless clearly erroneous and A routine traffic stop is a seizure under the Fourth Amendment. See United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc), petition for cert. filed, (U.S. March 1, 1996) (No. 95-8121). Such a stop is analyzed as an investigative detention, which must be "supported by a reasonable and articulable suspicion that the person seized is engaged in criminal activity." Alvarez, 68 F.3d at 1244; see also United States v. Lambert, 46 F.3d 1064, 1069 (10th Cir.1995). We employ a two-step inquiry when evaluating such investigative detentions, considering first "whether the officer's action was justified at its inception," and second "whether [the action] was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); see Botero-Ospina, 71 F.3d at 786.

                review de novo the ultimate determination of reasonableness under the Fourth Amendment."  United States v. Alvarez, 68 F.3d 1242, 1244 (10th Cir.1995), cert. denied, --- U.S. ----, --- S.Ct. ----, 134 L.Ed.2d 557 (1996);  United States v. Little, 18 F.3d 1499, 1503 (10th Cir.1994) (en banc).   Determinations of witness credibility we review for clear error.  United States v. Flores, 48 F.3d 467, 468 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 122, 133 L.Ed.2d 72 (1995).   We have stated that "the weight given to the
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