U.S. v. Bates

• Decision Date: 23 March 1988
• Docket Number: No. 86-8916,86-8916
• Citation: 840 F.2d 858,1988 WL 18
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Horace Edward BATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 858

840 F.2d 858

UNITED STATES of America, Plaintiff-Appellee, v. Horace Edward BATES, Defendant-Appellant.

No. 86-8916.

United States Court of Appeals Eleventh Circuit.

March 23, 1988.

Steve McCusker, Savannah, Ga., (court-appointed), for defendant-appellant.

William E. McAbee, II, Asst. U.S. Atty., Savannah, Ga., for plaintiff-appellee.

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

Before HILL and EDMONDSON, Circuit Judges, and ARONOVITZ ^*, District Judge.

HILL, Circuit Judge:

In November, 1986, Horace Bates was convicted of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1), and interstate travel in aid of racketeering, in violation of 18 U.S.C. Sec. 1952(a) (hereinafter the "Travel Act"). Bates was sentenced to five years for each conviction, with the terms to run concurrently. The court placed a special parole term of three years on Count I, possession with intent to distribute cocaine, and assessed Bates $50.00 per count.

Bates challenges both convictions. He argues first that the court should have granted his motion to suppress various pieces of evidence. Secondly, Bates maintains that the evidence presented was insufficient to support his conviction under Count II for a violation of the Travel Act. We disagree with Bates' first contention, but agree with his second one.

FACTS

On July 19, 1986, Bates was driving north on a section of U.S. Interstate 95 in Georgia. Georgia Bureau of Investigation Narcotics Enforcement Agent Nathan Katzif spotted Bates' vehicle, and was suspicious of it. Katzif radioed to Georgia State Patrol Trooper T.D. Bentley, with whom he was working, and recommended that Bentley stop Bates' car if he could. Although Bates was slightly exceeding 55 miles per hour, the speed limit at that stretch of road, Bentley did not stop Bates for that violation. After following Bates for approximately one mile, Bentley observed Bates reading a map and driving too closely behind the car in front of him.

Bentley stopped Bates and gave him a citation for following too closely. Bentley asked Bates if he would consent to a search of his vehicle, and Bates nodded yes. Katzif arrived on the scene and produced a consent form and a form waiving the constitutional right to a search warrant. After both forms were fully explained, Bates signed both.

Bates pointed out to the officers that a loaded gun was concealed in the front seat of his car. Bentley discovered $1400.00 in the glove compartment, and cocaine wrapped in a piece of aluminum foil inside a towel covering the gun. Inside a briefcase in the back seat Katzif found six plastic bags containing cocaine. Traces of cocaine were found in a hidden compartment inside the glove box of the car.

After Bates received Miranda warnings, he gave a full statement to Katzif, and then corrected the statement himself. Bates explained that he had agreed to deliver some "packages" for a friend named Jocko, but that he did not realize the packages contained cocaine.

COUNT I--THE MOTION TO SUPPRESS

Bates first maintains that the district court should have granted his motion to suppress the introduction of the cocaine and confession into evidence. Bates claims that Bentley's traffic stop was pretextual and cites a series of other taints along the path from stop to consent to confession.

Defendant Bates first suggests that his arrest was without probable cause, arguing that the testimony of the police officers is inherently unbelievable. We uphold the finding of probable cause.

The district court found as a matter of fact that Bates "was stopped because he was violating a traffic statute of the state of Georgia." R3-75. Ample evidence supported this conclusion. Officer Bentley testified that Bates' car followed another too closely, in violation of O.C.G.A. 40-6-49(a). We cannot hold that the district court's finding of fact was in any way "clearly erroneous."

Accepting the facts as the district court declared them to be, we must assess the probable cause determination. "Probable cause exists where the facts and circumstances within the collective knowledge of the law enforcement officials, of which they had reasonably trustworthy information, are sufficient to cause a person of reasonable caution to believe an offense has been or is being committed." United States v. Blasco, 702 F.2d 1315, 1324 (11th Cir.), cert. denied sub nom., Galvan v. United States, 464 U.S. 914, 104 S.Ct. 775, 78 L.Ed.2d 256 (1983). When Bates' car moved to within one car length of the automobile preceding it, Bates violated the Georgia statute, and Officer Bentley had probable cause to stop him.

Bates next claims that his arrest was pretextual, arguing that the officers' desire to stop him invalidated any probable cause derived from his traffic violation. In assessing a claim of pretextual arrest, "the proper inquiry is whether a reasonable officer would have made the seizure in the absence of illegitimate motivation." United States v. Smith, 799 F.2d 704, 708 (11th Cir.1986) (emphasis in original).

The district court specifically determined that Bates was arrested because of his traffic violation and not because of the officers' suspicions. R3-75. Officer Bentley testified at trial that it was his practice to stop cars for following too closely. R4-70. Based on this testimony and finding, we must conclude that the arrest of Bates was not pretextual: the patrol officers of Georgia are charged with enforcing Georgia's traffic laws, and this court can presume no less than that a patrol officer would obey this mandate.

Bates extends his claim of pretextual arrest by maintaining that Officer Bentley, in his eagerness to stop Bates, "created" the traffic violation by locating himself in the right lane so that Bates could not pass the car in front of him. Allowing this argument to succeed would undermine Georgia traffic regulation by judicially granting drivers special permission to follow too closely whenever they cannot pass the car in front of them. The district court observed that Bates could have slowed down to avoid the traffic violation, and we agree.

Alternatively, appellant Bates argues that even if probable cause did exist the stop should be declared pretextual. Bates asks this court to interpret the Smith rule as differentiating a stop based solely on a traffic violation and one based on both a violation and a hunch of other illicit activity. That interpretation would directly controvert the Smith holding. In Smith this court articulated the standard for pretextual stops in terms of " 'an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' and not on the officer's actual state of mind at the time the challenged action was taken." Smith, 799 F.2d at 709, citing Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985), quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). Here, Bates clearly violated a traffic regulation of Georgia; consequently, Officer Bentley's actions were objectively justifiable. Whether Officer Bentley hoped such a violation would arise is irrelevant to our inquiry: "an objectively reasonable stop ... is not invalid solely because the officer acted out of improper motivation." Smith, 799 F.2d at 708.

Officer Bentley stopped Bates based on Bates' objective violation of a statute for which the patrol regularly made stops, with or without suspicion of drug-related activity. In this particular case the government presented additional evidence that Bentley had an objective rationale for the stop, since Bentley could have made the stop earlier for a minimal violation of the speed limit, but chose to wait. According to the evidence, at the time and place of Bates' stop the patrol was not making stops for minimally excessive speed. Such evidence, while not mandatory, is persuasive.

Fourthly, should this court find that officer Bentley had probable cause to stop Bates, Bates requests that this court determine that the search of his car was unreasonable and beyond the scope appropriate given his traffic violation. Bates correctly notes that probable cause for a stop does not justify an unrelated search.

We need not determine whether the search was related to the arrest in this case, since the question misses the government's contention: the search was authorized not by the probable cause for the traffic stop but by the written and oral consent given by Bates. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973).

Finally, Bates attacks the consent on which the officers based the search, arguing that the United States failed to demonstrate that Bates gave the consent freely and voluntarily. Bates claims he was not told he was free to leave [citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ], was not told he could refuse to consent to the search [citing United States v. Fike, 449 F.2d 191 (5th Cir.1971) ], and was not read his Miranda rights [citing United States v. Ballard, 573 F.2d 913 (5th Cir.1978) ].

As to Bates' first two points, the Supreme Court has held that the "voluntariness" of a consent is "not in and of [itself] determinative." Schneckloth, 93 S.Ct. at 2047. Furthermore, in this case the consent seems clear. The defendant, an educated man, signed a form stating that he had "been informed of [his] right to refuse to consent to such a search." R1-21-24. Moreover, the district court found that defendant "was advised that he did not have to consent to a search of his automobile, but that nevertheless he did." R4-76.

As his third ground for attacking the consent, Bates suggests that we extend the holding of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to require warnings prior to consent searches. We first note that the trial court found...