U.S. v. Brown, 03-1128.

• Decision Date: 06 October 2003
• Docket Number: No. 03-1128.,03-1128.
• Citation: 345 F.3d 574
• Parties: UNITED STATES of America, Appellee, v. Charles B. Brown, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

345 F.3d 574

UNITED STATES of America, Appellee, v. Charles B. Brown, Appellant.

No. 03-1128.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2003.

Filed: October 6, 2003.

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Jennifer Gilg, argued, Federal Public Defender, Omaha, NE, for appellant.

Kimberly C. Bunjer, argued, Asst. U.S. Atty., Omaha, NE, for appellee.

Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Charles Brown (Brown) was charged with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1) (2000). Brown moved to suppress cocaine found in a search of his vehicle during a traffic stop. After the district court¹ denied Brown's motion, Brown entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion. Brown now exercises that right. We affirm.

I. BACKGROUND

While observing traffic on Interstate 80, Sergeant Leroy Jones (Sergeant Jones) of the Nebraska State Patrol clocked a speeding green van with no front license plate. As the van passed, Sergeant Jones believed it had a rear California license plate. Sergeant Jones pursued the van, and noticed the rear license plate was from Indiana, a state requiring only a rear license plate. Sergeant Jones also observed a National Car Rental license plate holder and sticker. A license plate check came back as "not on file in Indiana." Sergeant Jones initiated a traffic stop, and the van pulled over to the shoulder. When Sergeant Jones approached the van's passenger side to contact the driver, Sergeant Jones saw a man reclining in the front passenger seat. When asked for his license and rental agreement, Brown handed Sergeant Jones a Minnesota driver's license and an Indiana registration in the name of Candace Wilson (Wilson). Sergeant Jones asked Brown to accompany him to the patrol car, and Brown complied. Sergeant Jones informed Brown the license plate was not on file in Indiana. When Sergeant Jones asked Brown who owned the vehicle, Brown gave conflicting accounts. Brown also gave conflicting accounts of his trip. Sergeant Jones informed Brown the detention had become an investigatory stop.

Sergeant Jones also approached the passenger, who identified himself as Larry Walden, Sr. (Walden). Walden's account of the trip differed from Brown's. Faced with conflicting stories, Sergeant Jones called for backup and had dispatch run Triple I background checks on Brown and Walden. After Trooper Naber arrived, Sergeant Jones received the Triple I results, which showed prior drug offenses for Brown and Walden.

Sergeant Jones gave Brown a warning for speeding and returned Brown's license and papers. Sergeant Jones then asked Brown for consent to search the van. Brown verbally consented and signed a "Permission for Search" form. Sergeant Jones and Trooper Naber searched the van for about a half hour. Brown complained to Trooper Naber about the duration of the search, but never withdrew his permission for the search. After Sergeant Jones and Trooper Naber detected a false ceiling, Sergeant Jones requested a drug detection dog. The dog alerted immediately to the false ceiling. Once the officers gained access to the compartment above the false ceiling, they found fifty-three pounds of cocaine.

The government charged Brown with possession with intent to distribute cocaine. Brown moved to suppress the cocaine recovered during the search. The district court denied Brown's motion to suppress, finding (1) the detention was lawful, (2) Brown consented to the search, and (3) Brown never withdrew his permission to search. Brown entered a conditional guilty plea, and now appeals, claiming his detention was unconstitutional, the search was performed without his voluntary consent, and the search exceeded the scope of his consent.

II. DISCUSSION

We review the district court's conclusions of law de novo and its factual findings for clear error. United States v. Tirado, 313 F.3d 437, 439 (8th Cir.2002). We review the district court's finding of consent to search for clear error. Id.

A. Initial Stop and Detention

An officer who observes a traffic violation, even a minor one, has probable cause to initiate a traffic stop. United States v. Linkous, 285 F.3d 716, 719 (8th Cir.2002). Once the officer makes the traffic stop, the officer may lawfully check the driver's license and registration, ask the driver about his destination and purpose, and request that the driver sit inside the patrol car. United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir.1994) (en banc). The officer may also ask the passenger similar questions to verify the information the driver provided. Linkous, 285 F.3d at 719.

Sergeant Jones stopped Brown because he was speeding and the van's license plate was not on file in Indiana. When Sergeant Jones asked Brown for his license and rental agreement, Brown gave Sergeant Jones a Minnesota driver's license and an Indiana vehicle registration in Wilson's name. Sergeant Jones then requested Brown step over to the patrol car, where Sergeant Jones asked about Brown's trip and the van's owner. Brown gave inconsistent accounts of his trip and who owned the van. Sergeant Jones then asked Walden about the trip. Walden gave an entirely different story. Sergeant Jones had probable cause to initiate the stop, and his routine questioning of Brown and Walden was well within constitutional bounds.

In addition to having the authority to ask routine questions, Sergeant Jones had reasonable suspicion to expand the scope of the traffic stop further to detain and question Brown and Walden. See id. at 720 (stating "[a]n officer's suspicion of criminal activity may reasonably grow over the course of a traffic stop as the circumstances unfold and more suspicious facts are uncovered."); United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993) (declaring, "if the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions."). As the district court recognized, Brown's conflicting accounts of his trip and who owned the van authorized Sergeant Jones to ask Walden about the trip. Walden's differing story reasonably permitted Sergeant Jones to expand the scope of the stop and request background checks, which disclosed prior drug offenses for both Brown and Walden. None of these evolving actions constituted an unlawful detention.

B. Search of Van

1. Initial Consent

After Sergeant Jones received the results of the background checks, returned Brown's license and other papers, and issued a warning citation, Sergeant Jones asked Brown for permission to search the van. Brown verbally consented and signed a "Permission for Search" form. Brown claims he did not voluntarily consent to the search of the van because Sergeant Jones engaged in a belittling interrogation and presented the "Permission for Search" form without informing Brown he could refuse to consent.

The Constitution guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; see United States v. Ameling, 328 F.3d 443, 447 (8th Cir.2003), petition for cert. filed, (U.S. Aug. 29, 2003) (No. 03-6198) (Fourth Amendment applies to the states through the Fourteenth Amendment). "A consensual search does not violate the Fourth Amendment if the consent was voluntarily given without coercion." United States v. White, 42 F.3d 457, 459 (8th Cir.1994). In deciding whether a district court's consent determination was clearly erroneous, we must consider the following factors:

personal characteristics of the defendant, such as age, education, intelligence, sobriety, and experience with the law; and features of the context in which the consent was given, such as the length of detention or questioning, the substance of any discussion between the defendant and police preceding the consent, whether the defendant was free to leave or was subject to restraint, and whether the defendant's contemporaneous reaction to the search was consistent with consent.

United States v. Jones, 254 F.3d 692, 696 (8th Cir.2001).

The district court found Brown was an adult, "appeared sober and answered questions appropriately yet in a somewhat rambling manner," "was not threatened or pressured, and promises of leniency were not made," and Sergeant "Jones' tone was not unacceptably `accusatory, aggressive, and interrupting.'" We note Brown served 5½ years in the United States Air Force and holds a bachelor of science degree in engineering. Brown's assertion that he was subjected to a belittling interrogation belies our holding that Sergeant Jones's questioning was authorized and the district court's finding that Sergeant "Jones' tone was not unacceptably `accusatory, aggressive, and interrupting.'" The district court's finding that Brown voluntarily consented to the search was not clearly erroneous.

We also reject Brown's argument that Sergeant Jones's failure to inform Brown of his right to refuse to consent rendered his consent involuntary. See United States v. Drayton, 536 U.S. 194, 206, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (acknowledging the "[Supreme] Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search"); Schneckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (holding "knowledge of a right to refuse is not a prerequisite of a voluntary consent"). The...