U.S. v. Finke

• Decision Date: 06 June 1996
• Docket Number: No. 95-1586,95-1586
• Citation: 85 F.3d 1275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry Allen FINKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1275

85 F.3d 1275

UNITED STATES of America, Plaintiff-Appellee, v. Terry Allen FINKE, Defendant-Appellant.

No. 95-1586.

United States Court of Appeals Seventh Circuit.

Argued Jan. 17, 1996.

Decided June 6, 1996.

Suzanne M. Wissmann (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

James W. Ackerman, Springfield, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, CUDAHY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

A jury convicted Terry Allen Finke of conspiracy to distribute and to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Prior to trial, Finke moved to suppress the two-and-one-half pounds of drugs found in the trunk of his rental car, claiming the search that uncovered the evidence was the result of an unreasonable detention and was without consent. Following a hearing, the district court denied Finke's motion to suppress. He appeals his conviction based on this decision; we affirm.

I.

On May 7, 1994 at 10:51 in the evening, Sergeant Edward Delmore of the Collinsville, Illinois Police Department pulled over a vehicle for speeding. He learned that the car was a rental car when he called in the license plate. John Walton was driving the car; Finke and Jennifer Cardinal were passengers. Before stepping out of his unmarked police car, Officer Delmore activated his audio and video equipment, thus creating a minute by minute record of the encounter.

At 10:52 John Walton exited the car and handed his license and the rental car agreement to Delmore. The agreement listed Finke as the lessor of the car and Walton as an authorized driver. The papers also indicated that the car had been rented in Evansville, Indiana on May 2, 1994. Delmore noticed that Walton's license was issued in California, and upon inquiry Walton stated that he had just gone to California with Finke and was returning for a two-week vacation. Delmore testified at the suppression hearing that he quickly became suspicious that the occupants of the vehicle were narcotics couriers. Officer Delmore had ten years of experience on the Collinsville Police Department and one year of undercover narcotics work experience with the Metropolitan Enforcement Group. The rental car concerned Delmore, as he explained that drug couriers often used rental cars to avoid asset forfeiture laws. According to Delmore, the quick, five-day round-trip across the country was also consistent with drug trafficking. In addition, Walton appeared extremely nervous.

Delmore then approached the car at 10:55 and asked Finke and Cardinal for identification. He wanted to make sure that the lessor of the car, Finke, was present and he also wanted to verify Walton's story. Delmore noted that Finke appeared to be feigning grogginess in an attempt to avoid answering questions. In addition, when Delmore flashed his light into the passenger compartment of the car, he became more suspicious that drugs were involved, as the area was cluttered with fast food wrappers and looked "like they [had] been living in [it] for the last few days." Delmore knew from his training that drug couriers frequently make straight trips because they do not want to stop anywhere with a load of drugs in their vehicle. Upon returning to his car, Delmore radioed to dispatch and requested a back-up unit for a search. He testified that he was intending to ask for consent to search the car because of his suspicions. Additionally, Delmore testified that he called for back-up for safety reasons--he had noticed that Walton was wearing a knife in a sheath. Delmore also ordered a warrant, driving status, and criminal history check on Walton, Finke, and Cardinal.

Three to four minutes later, at 10:59-11:00, Delmore was advised that all three subjects were "clear," i.e., that they possessed valid drivers licenses and were not wanted on any outstanding arrest warrants. Delmore did not return the defendants' papers and release them at this point, however, because he was still waiting for his back-up to arrive and for the criminal history check to finish. Officer Wasser arrived and was briefed by Delmore at 11:04. At 11:05 the criminal history check came through, revealing that Walton had one prior conviction for embezzlement and Finke had two prior drug convictions, one for cocaine distribution and one for a marihuana offense.

Officers Delmore and Wasser then approached Walton again, who was standing near the rear of the car. Delmore returned the rental agreement and the drivers licenses of Walton, Finke, and Cardinal to Walton. This occurred at 11:07. Delmore then told Walton that he was not going to issue him a ticket and that he was free to go. As Walton started to walk back to the car, Delmore asked him if he "had a minute." Delmore inquired whether he had any drugs or guns or anything illegal in the car, and Walton replied in the negative. Delmore then asked for permission to search the car. Walton replied, "I don't care," but after a moment said, "ask Terry." At 11:09 when Delmore asked Finke for permission to search the car, Finke responded, "No, I don't see any reason." Delmore responded by telling Finke that he was going to call a canine unit to do a walk around the car. He then radioed for the canine unit and asked the officer to "expedite" reporting to the scene.

Delmore then resumed talking with Walton, informing him that Finke had not consented to a search so he had called a canine unit. He told Walton: "the dog is trained in narcotics and is very good. You're not under arrest or anything, but if you want the opportunity to help yourself out now is probably the time." Walton then volunteered that Finke had some pot in the car. This was at 11:10. Walton consented to a pat down search, and Delmore found a "roach clip," which is used for smoking marihuana cigarettes. At 11:12 Officer Pyles and Blitz, a german shepherd trained in drug detection, arrived on the scene.

Before Blitz began his inspection, Delmore requested that Finke and Cardinal step out of the car. This took several minutes, as they gathered their things and put on their shoes and jackets. At 11:17 Officer Pyles began walking Blitz around the exterior of the car. When Blitz reached the trunk of the car he jumped up and scratched and pawed the lid of the trunk, which indicated to Officer Pyles that Blitz smelled marihuana, cocaine, heroin, or a derivative of such. Upon a search of the trunk, the officers found a butane torch, which is frequently used to smoke crack cocaine, butane fuel, a crack pipe, an electric scale, a quantity of marihuana, and the two-and-one-half pounds of methamphetamine at issue on appeal. The officers also recovered a quantity of marihuana, a pipe, and a razor blade from Cardinal's purse. All three occupants of the car were placed under arrest.

In a motion to suppress made prior to trial, Finke argued that Delmore's extended detention of the defendants, beyond the length of time necessary for issuing a traffic citation, was an unreasonable seizure under the Fourth Amendment. The government claimed that Delmore had a reasonable suspicion at the outset of the stop that drugs were being transported and that this suspicion quickly ripened into probable cause when Walton stated that there was pot in the car. In addition, the government argued that, regardless of probable cause, Delmore had valid consent from Walton, the driver of the car, to search the car. Finke responded that Walton's consent was not binding on Finke, since Finke was the lessor of the vehicle and had specifically objected to any search. The district court denied Finke's motion, finding that Delmore's suspicions justified the detention until Delmore returned the defendants' identifications and papers and told them they were free to go, at which time the encounter became consensual. The court further found that probable cause to search was established when Walton told Delmore that there was pot in the car. Alternatively, the court found that probable cause developed when Blitz indicated that there were drugs in the trunk.

II.

On appeal Finke challenges the denial of his motion to suppress, arguing again that the methamphetamine should have been excluded because the search that uncovered it was the result of an unreasonable detention and was non-consensual. We review district court determinations of reasonable suspicion and probable cause de novo. Ornelas v. United States, --- U.S ----, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). If Officer Delmore's continued detention of the defendant was reasonable under the Fourth Amendment, and the search was supported by probable cause, then we need not reach the issue of whether Walton's consent was valid and binding on Finke. Therefore, we begin by addressing the constitutionality of the detention and search apart from any possible consent.

A traffic stop is similar to an investigative detention and is thus governed by the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3149-50, 82 L.Ed.2d 317 (1984); United States v. Rivera, 906 F.2d 319, 322 (7th Cir.1990); United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, 502 U.S. 1093, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992); United States v Pino, 855 F.2d 357, 362 (6th Cir.1988), cert. denied, 493 U.S. 1090, 110 S.Ct. 1160, 107 L.Ed.2d 1063 (1990). Under Terry the stop must be justified at its inception and be reasonably related in scope to the circumstances which justified the interference in the first place. Terry, 392 U.S. at 19, 88 S.Ct. at 1878-79; United States v. Crain, 33 F.3d 480, 485 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1142, 130 L.Ed.2d 1102 (1995); Walker, 933 F.2d at 815. The detention must be "temporary and last no longer than is necessary to effectuate the purpose of the stop." ...