U.S. v. Dunson

• Decision Date: 01 August 1991
• Docket Number: No. 90-6061,90-6061
• Citation: 940 F.2d 989
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Leslie DUNSON and James Edward Marks, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 989

940 F.2d 989

UNITED STATES of America, Plaintiff-Appellee, v. Robert Leslie DUNSON and James Edward Marks, Defendants-Appellants.

No. 90-6061.

United States Court of Appeals Sixth Circuit.

Argued Feb. 14, 1991.

Decided Aug. 1, 1991.

James E. Arehart, Asst. U.S. Atty., Louis DeFalaise, U.S. Atty., Robert F. Trevey, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Lexington, Ky., for plaintiff-appellee.

Aubrey Williams (argued), Louisville, Ky., for defendants-appellants.

Before NELSON and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This is an appeal by two defendants who pleaded guilty to a federal charge of possession of seven kilograms of cocaine with intent to distribute it. The cocaine was discovered during an ostensibly consensual search of an automobile that had been stopped for speeding by a police officer assigned to a drug interdiction unit. The main issue--preserved for appeal by the entry of conditional guilty pleas under Rule 11(a)(2), Fed.R.Crim.P.--is whether the officer's conduct violated the Fourth Amendment's prohibition against unreasonable searches and seizures. One of the defendants, who was sentenced to a statutorily-mandated 20-year prison term, also contends that his sentence constituted cruel and unusual punishment contrary to the Eighth Amendment.

After a brief preliminary examination and a much longer evidentiary hearing on a motion by the defendants to suppress the fruits of the search, a United States magistrate made comprehensive factual findings that were accepted by the district judge. The court found, among other things, that the driver of the automobile committed a traffic violation for which the officer was entitled to stop him; that the stop was made because of the traffic violation; and that the driver voluntarily consented to a search of his car, doing so "intelligently and without duress or coercion." Given these findings, which are not clearly erroneous, we conclude that the convictions must be affirmed. We shall also affirm the challenged sentence.

I

It is not uncommon, as we know, for illegal drugs to enter this country through southern states--Florida and Georgia, e.g.--and then move to markets in northern states such as Ohio and Michigan. One of the routes used in this traffic is Interstate Highway 75, which connects Florida and Georgia with every state in the Sixth Circuit.

The evidence presented in the case at bar showed that the Division of Police of Lexington-Fayette Urban County, Kentucky, maintained a specially-trained criminal patrol unit that "worked" Interstate 75 on a regular basis. Applying techniques taught during in-service training they received from the Institute of Police Training and Management at Jacksonville, Florida, officers assigned to the criminal patrol unit practiced what one of them described as "strict enforcement of traffic laws," stopping as many motorists as possible for speeding and other traffic violations. Once a motorist had been stopped, the officer would examine his license and automobile registration, run a computer check to see if the individual was wanted by law enforcement authorities, and attempt to engage the driver and any passengers in conversation. The officers were trained to watch for discrepancies in what was said, and to keep their eyes (and noses) open to "indicators" of possible drug involvement. Some drugs have noticeable odors, and the officers would be alert to the smell of the cars they stopped and to attempts to mask odors by air fresheners or other means. The officers also looked for signs of exceptionally hard travel, along with a variety of other factors mentioned in the record.

If they found nothing suspicious, the officers would either issue a citation for the traffic violation or let the driver off with a warning. When they suspected that a car might be carrying drugs, however, they would ask for permission to search the vehicle. If he agreed to a search, the driver would be asked to sign a consent form stating, among other things, that he could read, write, and understand the English language; that he understood that anything found in the search might be used against him in a court of law; that the consent was voluntary; and that "I have the right to refuse the search of my vehicle."

It was through the use of these techniques that the defendants in the instant case were caught carrying cocaine. Many of the events that led to their arrest were not disputed at the suppression hearing; where material disputes did exist, however, the magistrate credited the officers' version over the defendants'. The events in question may be summarized as follows.

Shortly before noon on Friday, January 5, 1990, Officer Lindsey Prebble, of the Lexington-Fayette Criminal Patrol Unit, was parked in an unmarked 1985 Plymouth police car observing northbound traffic on Interstate 75 in Fayette County, Kentucky. The posted speed limit was 55 miles per hour. Officer Prebble testified that he saw a black Chevrolet automobile passing other northbound traffic. The officer entered the highway and caught sight of the Chevrolet after it had broken through a group of slower vehicles. The officer then "paced" the Chevrolet from behind. The speedometer of the police car, which had been checked for accuracy the day before, indicated a speed of 62 miles per hour. ¹ The officer activated his flasher and pulled the Chevrolet over.

The car had two occupants, both of whom were African-Americans and both of whom lived in Ohio. Their vehicle had Ohio license plates. Although the defendants suggest that the car would not have been stopped if its occupants had been white or if it had been registered in Kentucky, Officer Prebble testified that the speed of the vehicle was the sole reason for the stop. He stated under oath that neither the race of the occupants nor the out-of-state license plates had anything to do with it. He also testified that he had been taught at the Institute of Police Training and Management that drug couriers can be of any race, age, or sex, and can be driving any vehicle. ²

Once the Chevrolet came to a stop at the edge of the highway, Officer Prebble parked his own vehicle behind it. The officer, who was in uniform, walked up to the driver's side of the Chevrolet. As he approached the car he noticed a blanket and pillow on the back seat. (Such articles can be significant, he testified, because they may indicate hard travel by people who do not wish to stop at hotels.) On the floor behind the driver Officer Prebble saw two travel guides; the guides were for Florida and Georgia.

The officer asked the driver, defendant Marks, for his operator's license. Mr Marks produced it, and at the officer's request he stepped out of his car. The officer explained that the stop was for speeding, and he asked Marks where he had been. Marks did not say Florida or Georgia, as the travel guides might have suggested he would; his answer was "Kentucky." When asked if that was as far south as he had gone, Marks said that he had been in Tennessee for a couple of days. (The truth, as the defendants subsequently testified, was that they had borrowed the car from a friend in Ohio on January 2, 1990, and had driven further south than Tennessee before starting their return trip.)

The officer asked Mr. Marks to return to his seat because he wanted to speak with the passenger. The latter--defendant Dunson--got out of the car and had a brief conversation with the officer. Questioned as to where they had been, Dunson said that he and Marks had been in Tennessee for one day to visit relatives. "I asked him if he'd gone any farther south than Tennessee," according to the officer's testimony, and "he stated no."

Officer Prebble returned to his own car after the conversation with Mr. Dunson, taking Marks' driver's license with him. He radioed a request for a check on the license and a wanted-person check. He also requested backup assistance from Officer Blumenschein. A transcript of the radio traffic has Prebble saying this to Blumenschein: "If you would start down toward the 114 [mile post], I have one on the side[ ] I'm unsure about." Officer Prebble testified that he was unsure about the stories the men had told; he was troubled by the fact that one man said they had been in Tennessee for a couple of days while the other said they had been there one day, and by the fact that despite the presence of Florida and Georgia travel guides, neither man admitted to having been south of Tennessee.

Officer Blumenschein responded promptly to the call for assistance, parking his police cruiser behind Officer Prebble's vehicle. The operator's license and wanted-person checks having disclosed nothing amiss, the two officers approached the driver's side of the Chevrolet. Officer Prebble had Mr. Marks get out of his car again, whereupon the officer returned his driver's license and told him that he would merely issue a warning, instead of a traffic citation, if Marks thought he could keep his speed down. Marks promised to do so. Officer Prebble testified that Mr. Marks would have been free to leave at this point, and the magistrate found that the officers said nothing to suggest to the defendants that they were not free to leave. ³

Before Mr. Marks got back in his car, however, Officer Prebble told him that the police were looking for people running narcotics along the interstate. Mr. Marks denied that he was transporting any narcotics. Officer Prebble then asked if Marks would mind signing a consent to a search of the car, mentioning the Florida and Georgia travel guides as a reason for the request. Mr. Marks testified that Officer Prebble said the car could be towed if consent were withheld; the officer, however, denied making any such statement. The magistrate found as a fact that Officer Prebble did not tell Marks that his car would be towed if the consent form were not signed.

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