974 F.2d 687 (6th Cir. 1992), 90-6222, United States v. French

Docket Nº:Robert B. FRENCH (90-6222); Jay C. Emerson (90-6407);
Citation:974 F.2d 687
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:August 20, 1992
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 687

974 F.2d 687 (6th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert B. FRENCH (90-6222); Jay C. Emerson (90-6407);

James W. Caldwell (90-6408); Kenneth L. Foster

(90-6477), Defendants-Appellants.

Nos. 90-6222, 90-6407, 90-6408 and 90-6477.

United States Court of Appeals, Sixth Circuit

August 20, 1992

Argued Feb. 20, 1992.

Rehearing and Rehearing En Banc Denied Sept. 25, 1992.

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Ed Bryant, U.S. Atty., Timothy R. DiScenza, Asst. U.S. Atty. (argued and briefed), Memphis, Tenn., for U.S.

Nancy Hollander, Freedman, Boyd & Daniels, Albuquerque, N.M. (argued and briefed), for Robert Bernal French.

David W. Coody, Law Office of David W. Coody, Dallas, Tex. (argued and briefed), for Jay Caldwell Emerson.

J. Stephen Cooper, Cooper & Rogers, Dallas, Tex. (argued and briefed), for James William Caldwell.

John R. Smith, Center, Tex. (argued and briefed), for Kenneth Lee Foster.

Before: KEITH and SILER, Circuit Judges; and WELLFORD, Senior Circuit Judge.

AMENDED OPINION

WELLFORD, Senior Circuit Judge.

Detective R.G. Coleman, an off-duty Memphis Police officer, observed a Ryder Rental truck with Indiana license plates and a white Mercedes-Benz automobile with Texas license plates entering Interstate I-40 approaching an interchange at Canada Road near Memphis. Coleman became suspicious that the cars were riding "in tandem" and, therefore, followed the vehicles on the interstate. As he followed, Coleman noticed that a Chrysler automobile, also with a Texas license plate, appeared to be riding in "convoy" with the other two vehicles. While Coleman observed them, he called his office at the

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Memphis Police Department for back-up assistance. He saw all three of the vehicles pull off of the interstate highway at the Canada Road exit, and noticed the occupants of all the vehicles talking together. He was joined by Lt. Larry Clemmer, also a Memphis police officer. In the meantime, one of Coleman's supervisors notified the Tennessee Highway Patrol about Coleman's suspicions. The supervisor made no mention of speeding or improper operation of any of the three vehicles being observed.

As the three vehicles prepared to head back onto the interstate, heading eastwardly from Memphis, Clemmer took a position ahead of them, and Coleman took his position in back. Clemmer soon thereafter clocked both the Mercedes-Benz and the truck going 72 m.p.h. in a 65 m.p.h. zone. Clemmer notified the Tennessee Highway Patrol dispatcher that three vehicles were being followed by officers of the Memphis Police Department, and that the two of them were speeding. Officers of the Highway Patrol eventually reached the vehicles, and the Mercedes (driven by defendant Robert Bernal French and occupied by defendant Kenneth Lee Foster) was stopped by patrolman Ross. Coleman and Ross prepared a speeding ticket that was eventually issued to the Mercedes, although Ross did not personally witness the speeding.

At about this same time, patrolman Cathy of the Highway Patrol stopped the truck (driven by defendant Jay Caldwell Emerson) because he noticed its erratic operation. When defendant Emerson got out of the truck, he was observed to be intoxicated, and Cathy arrested Emerson for driving while intoxicated. It was only later that Cathy learned that this truck was involved in the speeding incident reported by Coleman.

Shortly after the stop of the truck, officer Clemmer noticed a strong scent of marijuana emanating from it. Other officers also detected the suspected marijuana smell. Clemmer called for a drug sniffing dog which was 50 miles away in Memphis. It took some time for the dog to arrive. The dog indicated the presence of drugs, and a search warrant was promptly obtained for the truck. The officers found about 4,457.5 pounds of marijuana in the truck, along with a lease agreement in the passenger compartment.

After Ross stopped the Mercedes, but before he issued the speeding ticket, he moved the Mercedes off of the road closer to the truck for claimed safety reasons since it was raining. There was apparently no objection to the officer moving the Mercedes. Ross then issued defendant French a speeding ticket based on the observations and charge of Coleman. Eventually, the Chrysler (driven by defendant James William Caldwell) was also stopped. After the officers at the scene had smelled marijuana in the truck, defendant French, the owner of the Mercedes, gave the officers his written consent to search this car. Before he signed the consent form, French had been detained for some time, and the officers informed him that they were conducting a drug investigation. Marijuana and other incriminating evidence were found in the search of the Mercedes and French was thereafter arrested. Other material evidence was found in the Chrysler as a result of a search, which evidence was suppressed by the trial court.

On January 17, 1989, shortly after the episode described, all four of the defendants were indicted for: (1) possession with intent to distribute approximately 4,457 pounds of marijuana, and (2) conspiracy to commit that crime. A magistrate judge held an evidentiary hearing on referral from the district court on the defendants' motions to suppress the aforementioned evidence, and recommended overruling those motions. The district court heard oral arguments on the exceptions to the magistrate judge's proposed findings, and generally approved the proposed order overruling the motions to suppress with some modifications.

Defendants French and Emerson changed their plea to "guilty" on both counts. French, however, reserved the right to challenge the denial of his motion to suppress on appeal. French was sentenced to 120 months imprisonment to be

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followed by a five year term of supervised release and a fine of $25,000. Emerson was sentenced to 292 months imprisonment to be followed by ten years supervised release and a fine of $25,000.

After trial, the defendants Caldwell and Foster were found guilty on both counts. Caldwell was sentenced to life imprisonment under 21 U.S.C. § 841(b)(1)(A). Foster was sentenced to a term of 121 months imprisonment to be followed by five years of supervised release and a $25,000 fine. All of the defendants have appealed different aspects of this case.

I. SUPPRESSION

We must accept the findings of fact upon which the district court relied in dealing with suppression of evidence unless those findings are clearly erroneous. United States v. Duncan, 918 F.2d 647, 650 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991); United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988); United States v. Pino, 855 F.2d 357, 361 (6th Cir.1988), cert. denied, 493 U.S. 1090, 110 S.Ct. 1160, 107 L.Ed.2d 1063 (1990). Defendants French 1 and Foster now appeal the district court's order denying suppression of the marijuana found in the truck and the evidence found in the Mercedes-Benz. 2

  1. Standing

    The first question is whether either of these defendants, neither of which were drivers or passengers in the truck, have standing to challenge the searches. French and Foster claim to have standing to object to both the searches of the truck and the Mercedes, because they were illegally stopped and detained. They argue that the vehicles were stopped without probable cause to believe that any illegal acts were taking place, and that the stops were made as a pretext to investigating a mere "hunch" about drug activity. We find no merit in this contention with regard to the stop of the truck; we consider this argument seriously with regard to the stop of the Mercedes. 3 The officers must have had a reasonable "objective assessment of [their] actions in light of the facts and circumstances confronting [them] at the time." Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1978) (quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)).

    The truck was stopped, not because of any reports from Coleman or Clemmer, but because Sgt. Cathy witnessed the truck weaving on the road. He clearly had a legitimate basis on which to stop the truck. When Cathy stopped the truck, Emerson's intoxicated condition confirmed Cathy's suspicions about the driver. Also, Cathy's observations were corroborated by Clemmer's similar earlier statements regarding the vehicle's weaving. This stop was objectively reasonable. See Pino, 855 F.2d at 361 (district court's finding that weaving of a vehicle gave the officer probable cause to make a stop was not clearly erroneous).

    Similarly, because the Mercedes was speeding, it could have been objectively reasonable for an officer to stop the vehicle to issue a ticket to the operator. See United States v. Crotinger, 928 F.2d 203 (6th Cir.1991); United States v. Dunson, 940 F.2d 989 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992). In Crotinger and Dunson, we found that a legitimate stop for a speeding violation was not pretextual so that the officers could also search for drugs. The officers in this case, however, admitted that the stop of the Mercedes was

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    partially motivated by suspicions of drug activities.

    The district court found that although the surveillance of the defendants may have been motivated by suspicions of drug transportation, the stop was valid because the defendants were speeding. Foster maintains that at the time the Mercedes was stopped "there was no reasonable suspicion that the Mercedes-Benz contained contraband or other evidence." We believe this assertion to be a true statement of affairs. We find, however, that the officers had a reasonable...

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