81 F.3d 775 (8th Cir. 1996), 95-2269, United States v. White

Docket Nº:95-2269.
Citation:81 F.3d 775
Party Name:UNITED STATES of America, Appellee, v. Christopher G. WHITE, Appellant.
Case Date:April 18, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 775

81 F.3d 775 (8th Cir. 1996)

UNITED STATES of America, Appellee,

v.

Christopher G. WHITE, Appellant.

No. 95-2269.

United States Court of Appeals, Eighth Circuit

April 18, 1996

Submitted Nov. 14, 1995.

Page 776

Appeal from the United States District Court for the District of Nebraska; Thomas M. Shanahan, Judge.

Dennis J. Moynihan, Oakland, NE, argued (Clarence E. Mock, on the brief), for appellant.

Michael P. Norris, Asst. U.S. Atty., Omaha, NE, for appellee.

Page 777

Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BEAM, Circuit Judge.

Christopher G. White (White) entered a conditional plea of guilty to conspiracy to distribute cocaine and possession with intent to distribute cocaine in violation of 21 U.S.C. § 846. White's plea was conditioned on his right to appeal the district court's 1 denial of his motion to suppress evidence discovered during a search of his vehicle. We affirm.

I. BACKGROUND

Shortly after 12:00 noon on June 16, 1993, White was driving his Lincoln Town Car eastbound on Interstate Highway 80 (I-80) when he overtook Lieutenant Steven Evans (Evans) of the Nebraska State Patrol. Evans, traveling in his unmarked cruiser at approximately sixty-five miles per hour, estimated that White was traveling seventy-five miles per hour, thereby exceeding the posted speed limit.

After passing Evans' cruiser, White returned to the right lane of eastbound I-80 without signaling his lane change. He then began weaving on the interstate, alternately driving on the right shoulder of the road and crossing the center line separating the two eastbound lanes of traffic. White's erratic driving pattern continued for several miles. Observing this behavior, Evans radioed Trooper Daniel Wilson (Wilson), another patrolman in the area. Evans described White's driving to Wilson, who caught up to White and began to follow White in his marked patrol car. Wilson also observed White's erratic driving. Concerned that White might be driving under the influence of alcohol or drugs, Wilson stopped the Town Car at about 12:20 p.m.

Wilson exited his patrol car and approached the driver's side of White's vehicle. Sergeant Roger Schmidt, who had been traveling with Wilson that day as an observer, stationed himself near the passenger side of White's car. Evans, who had pulled in behind Wilson's cruiser, remained in his own vehicle. Upon reaching White, Wilson requested White's driver's license and vehicle registration. White promptly produced his Virginia operator's license and a New York temporary registration. Because White's car bore Virginia license plates, Wilson asked White if he possessed a Virginia registration. White produced the Virginia registration, explaining that he had purchased the car in New York a few weeks earlier and had retained the in-transit registration.

While Wilson inspected White's license and registration, he asked White about his employment and destination. White told Wilson he was employed by a construction company in Virginia and was returning from a vacation in Las Vegas. Wilson advised White that he had stopped White for an improper lane change and for driving on the shoulder, and added that he was concerned White was driving under the influence of alcohol or drugs. White replied that he was merely tired, and explained that he was expected back at work in Richmond, Virginia, the following Monday and had had only five hours of sleep since he had left Las Vegas the previous day. Wilson found White's comments unusual, believing White should have no trouble making it back to Richmond since it was only Wednesday. Although Wilson did not notice any signs of drug or alcohol impairment as he questioned White, Wilson found White's manner unusually nervous, noting White's shaking hands and rapid breathing. Wilson also noticed that the interior of White's vehicle smelled strongly of deodorizer, although he could see only one small deodorizer in the rear view mirror.

At the end of this exchange, Wilson decided to issue White a written warning for the traffic violations he had observed. Wilson told White to remain in his car and returned to his cruiser to fill out the warning card and run a "wants and warrants" computer check on White. The computer check revealed no irregularities, so Wilson returned to White, handed him his license and registration, and explained the warning ticket. White thanked Wilson and said he would get some rest.

Page 778

Wilson then asked to search the Town Car for drugs, weapons, large amounts of cash, alcohol, and illegal fireworks.

At this point, the parties offer different versions of the facts. Wilson testified at the hearing on White's motion to suppress that White consented to a search of his vehicle. White testified that he advised Wilson the car did not contain contraband but did not consent to the search. In any event, the parties agree that Wilson asked White to get out of the vehicle. White exited and Wilson conducted a pat-down search of White, discovering a pager. Wilson then introduced White to Sergeant Schmidt, who stood with White while Wilson and Trooper Evans, who had joined them, began to search the vehicle. Trooper Wilson asked to gain access to the trunk of the car, and White walked to the front driver's side door and entered a numeric code which opened the trunk. The search of the trunk revealed that the trunk carpeting was glued down unevenly and that a freshly-painted metal compartment was lodged directly underneath the trunk, indicating recent alterations to the vehicle. The trunk also contained several deodorizers. After discussing these observations, the troopers radioed for a police dog. The dog arrived at approximately 12:50 p.m. and promptly alerted to the odor of narcotics. White's car was then taken to a State Patrol office, where a warrant was obtained and a more thorough search revealed 112 pounds of cocaine.

White filed a motion to suppress the evidence seized pursuant to the search of his vehicle. Following an evidentiary hearing, a federal magistrate judge issued a Report and Recommendation to deny the motion. The district court adopted the magistrate judge's recommendations, and White now appeals. White argues that Trooper Wilson unjustifiably escalated the traffic stop into an investigative stop in violation of the Fourth Amendment to the United States Constitution.

II. DISCUSSION

The district court held, and White concedes, that the initial stop of White's vehicle for traffic violations was lawful. White contends, however, that Wilson's questions during the stop were not, as our cases require, reasonably confined to the circumstances which justified the detention in the first instance. See United States v. Cummins, 920 F.2d 498, 502 (8th Cir.1990), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991) (detention during lawful traffic stop must be reasonably related in scope to the circumstances which justified the interference in the first place). When Wilson asked White for permission to search for contraband, White argues, he escalated the traffic stop into an investigative stop which was unsupported by the requisite level of reasonable suspicion as defined in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). White further asserts that, assuming his consent was given, it was not sufficiently voluntary to purge the taint of the...

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