933 F.2d 812 (10th Cir. 1991), 90-4067, United States v. Walker

Docket Nº:90-4067.
Citation:933 F.2d 812
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Ralph Joseph WALKER, Defendant-Appellee.
Case Date:May 07, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 812

933 F.2d 812 (10th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellant,

v.

Ralph Joseph WALKER, Defendant-Appellee.

No. 90-4067.

United States Court of Appeals, Tenth Circuit

May 7, 1991

Rehearing Denied Aug. 13, 1991.

Page 813

Dee Benson, U.S. Atty. (Wayne Dance, Asst. U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellant.

James Esparza, Salt Lake City, Utah, for defendant-appellee.

Before SEYMOUR and EBEL, Circuit Judges, and BROWN, Senior District Judge. [*]

WESLEY E. BROWN, Senior District Judge.*

In this appeal, the Government challenges the district court's order suppressing cocaine found in the defendant's car. 751 F.Supp. 199. The district court granted the defendant's motion to suppress the evidence upon finding that the defendant had been illegally detained and questioned after he was stopped for speeding on a Utah highway. For the reasons set forth herein, we remand the case to the district court for further proceedings.

The pertinent facts as found by the district court are as follows. On January 10, 1990, the defendant was traveling west on Interstate 70 in Emery County, Utah, in a 1988 Cadillac. Officer Richard Graham of the Emery County Sheriff's Department was traveling east on the interstate. Officer Graham clocked the defendant's car going 67 miles per hour in a 55 mile per hour speed zone. Graham made a "u-turn" and pulled the defendant over.

Before getting out of his car, Graham ran an NCIC (National Crime Information Center) check on the defendant's car and was informed that it had not been reported stolen. Graham approached the defendant's car and told the defendant that he had been clocked speeding. Graham asked the defendant for a driver's license and

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vehicle registration and also asked the defendant where he was coming from and his destination. The defendant stated that he was coming from Kansas City and was on his way home. The defendant asked permission to get out of his car so he could get his license out of his back pocket. As the defendant stepped out of his car, he gave Graham the vehicle registration. The defendant was nervous. His hands shook. It was difficult for him to retrieve his license from the small compartment in his wallet. He retrieved the license and gave it to Officer Graham.

The license was issued in the defendant's name. It identified him and established his right to operate a motor vehicle. The car was registered in the name of Marian Smith. Officer Graham questioned the defendant about the registration. The defendant told Graham that Marian Smith was his sister and that he was driving the car with her permission. It was later established that the defendant had subleased the vehicle from Ms. Smith. A copy of the sublease agreement was in the glove compartment of the vehicle at the time the defendant was stopped.

While retaining the defendant's license and registration, Officer Graham asked the defendant a number of specific questions unrelated to the traffic stop. He asked if there were any weapons in the vehicle, if there were any open containers of alcohol in the vehicle, and if there was any controlled substance or paraphernalia of any kind in the vehicle. Graham also asked if the defendant were carrying any large quantities of cash. The defendant answered "no" to each question except for stating that he had about $1600.00 in cash in the glove compartment and about $150.00 cash in his pocket. While still holding the defendant's license and registration, and without discussing the speeding violation or writing a citation or informing the defendant that he was free to go, Officer Graham asked the defendant if he could search the vehicle for the items about which he had inquired. The defendant responded, "Sure, go ahead." Officer Graham asked the defendant to stand by the front fender of the car, which he did. Graham patted the defendant down, checking under his sweater, the top of his slacks, and down his legs. Graham then searched the passenger compartment of the car. He found two rolls of cash in the glove compartment. Graham asked for and received the key to the trunk. Upon opening the trunk, he noticed two packages wrapped in clear plastic tape near the back seat. They appeared to be kilogram packages of cocaine. Graham then arrested the defendant. A search warrant was later obtained which led to the discovery of 86 kilogram packages of cocaine in the car.

Relying on United States v. Guzman, 864 F.2d 1512 (10th Cir.1988), the district court determined that Officer Graham's continued detention of the defendant in order to ask him intrusive questions unrelated to the traffic stop was a violation of the defendant's Fourth Amendment rights. The district court found that the defendant's nervousness did not create an objectively reasonable suspicion of criminal activity that would justify the detention. The court further indicated that the defendant had produced sufficient proof showing he was entitled to operate...

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