U.S. v. Cannon, 92-10266

• Citation: 29 F.3d 472
• Decision Date: 08 August 1994
• Docket Number: No. 92-10266,92-10266
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Bruce CANNON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 472

29 F.3d 472

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Bruce CANNON, Defendant-Appellant.

No. 92-10266.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 13, 1994.

Decided Feb. 4, 1994.

Rehearing and Rehearing En Banc Denied Aug. 8, 1994.

Estelle A. Schleicher, Kimball J.P. Sargeant, Schleicher & Sargeant, Sacramento, California, for the defendant-appellant.

Benjamin B. Wagner, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: GOODWIN, WIGGINS and BRUNETTI, Circuit Judges.

GOODWIN, Circuit Judge:

Anthony Bruce Cannon appeals his conviction for drug trafficking and money laundering in violation of 21 U.S.C. Secs. 841(a)(1), 856, and 18 U.S.C. Sec. 1956(a)(1)(B)(i). He argues that the district court erred in denying his motion to suppress evidence. We affirm.

On March 30, 1990, Judge Gary Ransom of the Sacramento County Superior Court issued a search warrant authorizing police to search Cannon, two residences, a certain white Nissan Sentra, and other property, for evidence relating to drug trafficking. Later that evening, a confidential informant told police that Cannon was in Oak Park with cocaine and that Cannon's white Nissan Sentra was parked at a certain intersection near the park. This information was consistent with previous reports about Cannon's drug trafficking recounted in the search warrant affidavit. Police proceeded to the intersection and located the car.

In order to confirm that Cannon was in fact driving the car, the investigating officers asked a uniformed officer, Glenn Walters, to effect a traffic stop. Because the officers had learned that Cannon did not have a valid driver's license, Walters stopped Cannon pursuant to Cal.Veh.Code Sec. 14601.1, 40000.11, under which driving with a suspended license is a misdemeanor. He did not rely on the search warrant, which was not authorized for nighttime service.

After Walters pulled him over, Cannon admitted that he did not have a driver's license, but provided a California ID card. Walters asked Cannon to exit the car and performed a pat search, discovering a pager in Cannon's pocket. He then asked Cannon to sit in his patrol car while he ran a computer check on the ID card. The computer check confirmed that Cannon's license was suspended.

After receiving this information, Walters asked Cannon's permission to search the car. Cannon replied "sure, go ahead" and did not protest when Walters searched under the hood, in the passenger compartment and inside the trunk. Walters found a mobile phone in the glove compartment and more than $16,000 in large bills in the trunk. After finding the cash, Walters radioed the investigating officers waiting some thirty feet away. They arrived, found cocaine residue, and formally arrested Cannon.

Police then obtained an endorsement for nighttime service and executed the search warrant, finding additional incriminating evidence at each of the residences listed in the warrant. In addition, Michele Tillmon, who lived with Cannon at one of the residences, led them to a third apartment where they saw rock cocaine in plain view. After obtaining a second warrant, police seized more than ten kilograms of cocaine, cocaine base and materials consistent with the manufacture of cocaine from this apartment. Cannon was thereafter indicted for drug trafficking and various money laundering offenses.

Before trial, Cannon timely moved to suppress the evidence found in his car, residences and other locations, arguing that Walters' stop was illegal, that Walters did not ask permission to search the car, that any consent Cannon gave did not include the trunk of the car, and that the warrant was not supported by probable cause. At a suppression hearing, Cannon testified that he had not given Officer Walters permission to search his car. Walters testified that Cannon had told him to "go ahead." The court found that Cannon had freely and voluntarily given his consent and ultimately rejected all of Cannon's Fourth Amendment claims.

I. VALIDITY OF THE TRAFFIC STOP

Cannon first contends that Officer Walters's initial stop was illegal because Walters used the driving violation as a pretext to investigate Cannon's drug trafficking. United States v. Gutierrez-Mederos, 965 F.2d 800, 802 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993). He contends that all of the evidence found during the stop, as well as the evidence later found in his residences and storage locker, should have been suppressed as fruit of an illegal stop. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We disagree.

"A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop." United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988). ¹ In the absence of some limit on police power to make such stops, "thousands of everyday citizens who violate minor traffic regulations will be subject to unfettered police discretion as to whom to stop." Id. at 1516. Given the pervasiveness of minor regulations, who police actually stop may depend on arbitrary or discriminatory characteristics. Id. Courts have long recognized that such arbitrariness is unreasonable within the meaning of the Fourth Amendment. Id. at 1516-17 (citations omitted).

However, recognizing this problem has proved easier than solving it. Devising appropriate and workable formulas for limiting police discretion has proved difficult, and circuit courts now conflict on the proper standard for evaluating "pretextual stop" claims. Cummins v. United States, --- U.S. ----, ----, 112 S.Ct. 428, 429, 116 L.Ed.2d 448, 449 (1991) (White, J., dissenting from denial of certiorari). In some circuits, evidence discovered following a traffic stop is admissible as long as a reasonable officer could have made the stop. Id. ² These circuits simply ask (1) whether the arresting officer had probable cause to believe the defendant was committing a traffic offense and (2) whether municipal law authorizes a stop for such an offense. Trigg, 878 F.2d at 1041.

Other circuits have adopted a more stringent "would have" test, asking not whether a reasonable officer could have made the stop, but whether a reasonable officer would have made the stop, absent his unrelated suspicions. Guzman, 864 F.2d at 1517; United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986). These courts inquire not only into the technical legality of the stop, but also into its conformity with regular police practices. Guzman, 864 F.2d at 1515; Smith, 799 F.2d at 710 (discussing whether a reasonable officer would stop a car to investigate drunk driving based on the defendant's driving).

Cannon argues that, in Ninth Circuit, the validity of a so-called pretext stop depends on the state of mind of the stopping officer. He contends that his stop was illegal because Walters would not have made the stop had he not been concerned about Cannon's drug trafficking.

Some of our language has implied that this subjective inquiry is required. See, e.g., United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986) ("[w]hether an arrest is a mere pretext to search turns on the motivation or primary purpose of the arresting officers"). ³ However, in none of these cases have we held a search invalid based solely on the officer's subjective state of mind. ⁴

Most commentators and circuit courts, both those adopting the "would have" and those adopting the "could have" standards, agree that the validity of a so-called pretext stop should depend on the objective facts and circumstances of the stop, rather than on the subjective intent of the officer. Guzman, 864 F.2d at 1515 (citing Smith, 802 F.2d at 1124 as the lone exception) (other citations omitted); see also United States v. Arra, 630 F.2d 836, 845 n. 12 (1st Cir.1980) (emphasizing the futility of inquiring into an officer's subjective state of mind); A. Amsterdam, "Perspectives on the Fourth Amendment," 58 Minn.L.Rev. 349, 437 (1974) (same). The "would have" circuits ask whether a reasonable police officer would have stopped the defendant for the traffic violation, absent his unrelated suspicions, not whether the particular officer who made the stop was motivated by his suspicions or the traffic violation. Guzman, 864 F.2d at 1516-17 (emphasizing that this standard is nonetheless more stringent than the "could have" test because it requires courts to inquire not only into the technical legality of the stop but also into police practices).

The Supreme Court has also emphasized that, in general, "[w]hether a Fourth Amendment violation has occurred 'turns on 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." 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, 137, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)). ⁵

We have recently said that an inventory search is valid, even if the searching officer had an investigatory motive, as long as the officer would have conducted the search in question anyway pursuant to police inventory practices. United States v. Bowhay, 992 F.2d 229, 231 (9th Cir.1993) (noting that "[w]hen the police conduct would have been the same regardless of the officer's subjective state of mind, no purpose is served by attempting to tease out the officer's 'true' motivation.") (citations omitted); see also United States v. Lillard, 929 F.2d 500, 502 (9th Cir.1991) (stop valid regardless of officer's motivation where officer testified he ...