902 F.2d 937 (11th Cir. 1990), 89-8856, United States v. Strickland

Docket Nº:89-8856
Citation:902 F.2d 937
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Walter George STRICKLAND, Jr., Defendant-Appellant.
Case Date:June 05, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 937

902 F.2d 937 (11th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Walter George STRICKLAND, Jr., Defendant-Appellant.

No. 89-8856

United States Court of Appeals, Eleventh Circuit

June 5, 1990

Page 938

        Edward T.M. Garland, Atlanta, Ga., for defendant-appellant.

        Deborah A. Griffin, Asst. U.S. Atty., Macon, Ga., for plaintiff-appellee.

        Appeal from the United States District Court for the Middle District of Georgia.

        Before KRAVITCH and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.

        KRAVITCH, Circuit Judge:

        Appellant, Walter G. Strickland, entered a conditional guilty plea to possession with the intent to distribute approximately ten kilograms of cocaine in violation of 21 U.S.C. Secs. 846 & 841(a)(1), and possession of an unregistered firearm in violation of 26 U.S.C. Secs. 5861(d) & 5871. Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, Strickland reserved the right to appeal the district court's denial of his motion to suppress evidence discovered during a search of his automobile. Because we find that information gained by the officer during a valid consensual search of the vehicle provided probable cause to sustain the validity of a continuation of that search beyond the scope of consent, we affirm the district court.

        FACTS

        On February 23, 1989, at approximately 1:10 a.m. on Interstate 75, Georgia State Trooper David Brack observed a 1989 Mercury

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Marquis LS driven by appellant travelling over the dotted white markers between the two lanes of travel. According to Officer Brack's uncontroverted testimony at the suppression hearing, he began to follow the vehicle and observed that the driver was "continually over or straddled the divider lane and then went back into his lane and came back over the divider lane once more...." Brack testified that he routinely stopped every vehicle being driven in this manner. When he stopped the Mercury he told appellant "the reason I stopped you, you were weaving. I was concerned that you might have been tired or sleepy or the possibility you might have been drinking. I wanted to stop and check and make sure you're all right." Strickland produced the necessary documentation for the vehicle and satisfied Brack that he was not intoxicated. Officer Brack testified that at that point, Strickland was free to leave.

        Nevertheless, Officer Brack then told Strickland: "We have a lot of trouble with people couriering narcotics, weapons, unusually large amounts of money, other types of contraband." According to the officer's undisputed testimony, when the subject of a search was mentioned, Strickland responded "I don't have any objections at all ... let me get the key and open the trunk." Strickland opened the trunk to the vehicle and then asked the officer whether he could sit in the police vehicle because it was cold outside. Before proceeding with the search Brack explained to Strickland, "I want you to understand that I would like to search the entire contents of your automobile ... if you want to sit down, that's fine with me, to get out of the cold but I want you to understand that I would like to search the entire contents of your car." Strickland responded "That's fine." 1

        Officer Brack testified at the suppression hearing that he immediately directed his search to the spare tire in the trunk of the Mercury. Brack explained that the spare tire seemed uncharacteristically large for that type of automobile, that the placement of the tire seemed unusual, and that its cover did not seem to fit properly over it. After removing the cover, he discovered further suspicious discrepancies with respect to the tire:

OFFICER BRACK: [I] noticed that it was a Sears tire and I thought that initially to be kind of unusual. I noticed the rim and it was rusted on the tire and bent somewhat and I knew that was definitely out of place. I looked at the tires on the car and they were Firestone tires and I undid the bolt that holds the tire down and as I pulled the tire out, I knew that it was very obvious that something was inside the tire.

MR. SOLIS [Asst. U.S. Atty.]: Why was it so obvious?

OFFICER BRACK: The tire was extremely heavy, weighted with something and when the tire was removed from the trunk and it was rolled, you could hear what was inside just flumping, you know, as it would roll, it would flmp, flmp.

        Officer Brack then instructed a deputy who had arrived at the scene to cut open the tire. Inside the tire was an automatic weapon, a silencer, a thirty round ammunition clip, and ten kilograms of cocaine.

        ISSUES

        Appellant contends that the district court erred in refusing to suppress the evidence found during Officer Brack's search. Appellant first argues that the search of his vehicle was impermissible because it was conducted after an improper pretextual stop. Second, appellant urges that even if the stop was appropriate, the cutting open of the tire was impermissible because it exceeded the scope of consent.

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PRETEXTUAL STOP

        A search of an individual or a vehicle is improper if the initial seizure of the person or vehicle was unlawful. See United States v. Miller, 821 F.2d 546, 547 (11th Cir.1987). An officer may conduct a brief investigative stop of a vehicle, analogous to a Terry -stop, if the seizure is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); United States v. Smith, 799 F.2d 704, 707 (11th Cir.1986); see Delaware v. Prouse, 440 U.S. 648, 655-56, 661, 663, 99 S.Ct. 1391, 1397, 1400-01, 59 L.Ed.2d 660 (1979); Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968); see, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975) (permitting border patrol officers to stop vehicles upon reasonable suspicion that they contain illegal aliens). Investigatory stops are invalid if they are solely based on "unparticularized suspicion" or "inarticulate hunches." Terry, 392 U.S. at 22, 27, 88 S.Ct. at 1880, 1883; Smith, 799 F.2d at 707; see Prouse, 440 U.S. at 661, 99 S.Ct. at 1400. Likewise, investigatory stops are invalid as pretextual unless "a reasonable officer would have made the seizure in the absence of illegitimate motivation." Smith, 799 F.2d at 708 (emphasis original). The government does not suggest, nor could we find, a reasonable suspicion of criminal activity sufficient to justify an investigatory stop in this case. Cf. Sharpe, 470 U.S. at 682 & n. 3, 105 S.Ct. at 1573 & n. 3 (delineating facts supporting reasonable suspicion of narcotics trafficking that justified investigative stop of vehicle).

        Alternatively, a police officer may stop a vehicle "[w]hen there is ... probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations" relating to the operation of motor vehicles. Prouse, 440 U.S. at 661, 99 S.Ct. at 1400; see United States v. Bates, 840 F.2d 858, 860 (11th Cir.1988); Smith, 799 F.2d at 709; see, e.g., United States v. Hollman, 541 F.2d 196, 198 (8th Cir.1976) (police had probable cause to stop vehicle because its taillights were defective). It remains an open question whether a stop for probable cause might nevertheless be invalid as pretextual if a reasonable officer would not have made the seizure in the absence of an illegitimate...

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