U.S. v. Elliott, 96-8061

• Citation: 107 F.3d 810
• Decision Date: 24 February 1997
• Docket Number: No. 96-8061,96-8061
• Parties: , 97 CJ C.A.R. 304 UNITED STATES of America, Plaintiff-Appellee, v. Asta M. ELLIOTT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 810

107 F.3d 810

65 USLW 2616, 97 CJ C.A.R. 304

UNITED STATES of America, Plaintiff-Appellee, v. Asta M. ELLIOTT, Defendant-Appellant.

No. 96-8061.

United States Court of Appeals, Tenth Circuit.

Feb. 24, 1997.

William M. Hatchett, Pontiac, MI, for defendant-appellant.

John R. Green, Assistant United States Attorney, Cheyenne, WY (David D. Freudenthal, United States Attorney for the District of Wyoming, with him on the brief), for plaintiff-appellee.

Before ANDERSON, McWILLIAMS and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Asta M. Elliott, convicted and sentenced for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), appeals the denial of her motion to suppress evidence. We reverse and remand.

I.

On the morning of December 14, 1995, Wyoming Highway Patrolman Dan Dyer was sitting in his patrol car in the median of Interstate 80 near Laramie, Wyoming, monitoring eastbound traffic. At approximately 7:40 a.m., he saw a Mercury Marquis traveling east on the interstate and became suspicious for several reasons. First, the Mercury was traveling 55-60 mph in a 75-mph zone, but was "not smoking or belching or jerking down the road." Append. at 8. Second, the two occupants of the Mercury looked straight ahead instead of at Dyer as they passed. Finally, he noticed there was no front license plate and he thought it might be an out-of-state car. Based on these suspicions, Dyer drove his car onto the interstate and followed the Mercury. As the two cars traveled through winding sections of the interstate, Dyer noticed the Mercury came close to, but did not enter, the emergency lane. When the interstate straightened, the Mercury speeded up to approximately 77-78 mph. Dyer locked in his radar at 77 mph, turned on his patrol car's overhead lights, and stopped the Mercury.

Dyer approached the Mercury on foot and informed Elliott, the driver, that the Mercury had been traveling 77-78 mph. She responded that her speedometer might be slightly off because she had just purchased new tires. Dyer told Elliott he would give her a warning ticket. Dyer asked Elliott and her female passenger, Shirley Thom, where they had been and for how long. After a pause, Thom replied they had been in Las Vegas for four or five days. Dryer asked Elliott for her driver's license, car registration, and proof of insurance. Elliott promptly produced the documents and Dyer went to his car and confirmed everything was proper. Dyer returned Elliott's license, registration, and proof of insurance. Before handing her the warning ticket, he told Elliott he could have written her a $65 ticket. Elliott replied, "Thanks a lot. We'll try to watch our speed." Append. at 15. According to Dyer, he thought Elliott "had been polite, quite polite, maybe a little more than normal." Id.

After handing the warning ticket to Elliott, Dyer asked her, "Say, there's nothing illegal in the vehicle, in the trunk by chance?" Id. Elliott responded in the negative. Dryer asked Elliott if he could "look through the trunk there and see what you got in there? I don't want to look through each item." Id. at 19. Dyer told Elliott he just wanted to see how things were "packed" or "packaged." Id. at 51, 63. Elliott pushed a button in the glove box and opened the trunk. Dyer observed the trunk was full of luggage. He pushed and felt the outside of a black nylon bag on the left side of the trunk and noticed there was "the same rigidity throughout the whole [bag]." Append. at 20. Dyer then unzipped the bag approximately 5-7 inches and observed a package inside wrapped in paper or other material with little red dots on it. According to Dyer, he had previously seen similar packaging in a drug case.

Dyer walked back to the driver's door of the Mercury and asked Elliott if she would accompany him to the trunk while he looked in the bags. More specifically, Dyer asked: "Would you mind coming out? Get your coat and hat, if you wouldn't mind, please, and come on back. And I don't want to be accused of taking anything back here." Append. at 22. Elliott complied with Dyer's request. Dyer pointed to the partially-opened black bag in the trunk and asked whose it was. He initially received no response, but eventually Elliott acknowledged it was hers. Dyer asked Elliott, "What's in it?" Append. at 23. Elliott replied that she did not know. Dyer completely unzipped the bag and asked Elliott, "Well, do you mind if I get a pocketknife and make a little cut there in that bag [i.e., the package]?" Id. After Elliott agreed, Dyer retrieved his pocketknife from his patrol car and made a small incision in the package, revealing a green leafy substance that looked and smelled like marijuana.

Dyer told Elliott to stand by the front of the patrol car while he radioed for assistance. Dyer then returned to the Mercury, removed the keys, and asked Thom for identification. Dyer subsequently placed Elliott under arrest and Mirandized her. The Mercury was towed to patrol headquarters in Laramie and its contents were inventoried. Approximately 174.5 pounds of marijuana were found in the bags in the trunk.

Elliott was charged with one count of possession of marijuana with intent to distribute on December 20, 1995. She waived her right to indictment and was charged by information on January 17, 1996, with the same count. On February 12, 1996, she filed a motion to suppress evidence, and the motion was denied on March 22, 1996. Elliott entered a plea of guilty on April 15, 1996, conditioned on her right to appeal the denial of her motion to suppress. She was sentenced to thirty months' imprisonment, three years' supervised release, and a special assessment of $50. Elliott filed her notice of appeal on July 1, 1996.

II.

Elliott contends the district court erred in denying her motion to suppress, arguing she did not voluntarily consent to Dyer looking in the trunk of her car because he did not tell her she was free to go after he returned her driver's license and other papers. Further, Elliott argues, even if her consent was voluntary, Dyer exceeded the scope of her consent by touching and feeling the bag and by unzipping it to view the package contained therein.

When reviewing an order granting or denying a motion to suppress, we accept the district court's factual findings unless clearly erroneous, and view the evidence in the light most favorable to the district court's findings. United States v. Foster, 100 F.3d 846, 849 (10th Cir.1996); United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.1996). "Evaluation of the credibility of witnesses, the weight to be given the evidence, and inferences to be drawn from the evidence are for the district court." Hernandez, 93 F.3d at 1498. However, we review de novo the ultimate determination of the reasonableness of a search under the Fourth Amendment. Foster, 100 F.3d at 849; Hernandez, 93 F.3d at 1498.

Voluntariness of Consent

A law enforcement officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof of entitlement to operate the car, the driver must be allowed to proceed without further delay for additional questioning. United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied 511 U.S. 1095, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994). Further questioning is permissible, however, if (1) "during the course of the traffic stop the officer acquires an objectively reasonable and articulable suspicion that the driver is engaged in illegal activity"; or (2) "the driver voluntarily consents to the officer's additional questioning." United States v. Sandoval, 29 F.3d 537, 540 (10th Cir.1994). Under the first set of circumstances, "a Fourth Amendment seizure has taken place, but it is reasonable and consequently constitutional." Id. Under the second set of circumstances, "there is no seizure, and hence the Fourth Amendment's strictures are not implicated." Id. However, if the officer continues to question the driver in the absence of either set of circumstances, any evidence derived from that questioning (or a resulting search) "is impermissibly tainted in Fourth Amendment terms." Id.

Here, the government has not argued that Dyer had an objectively reasonable and articulable suspicion that Elliott was engaged in criminal activity. Although Dyer's testimony at the suppression hearing certainly suggests he had a "hunch" that Elliott might be involved in illegal activity, an officer's "inchoate and unparticularized suspicion or 'hunch' " is insufficient to give rise to reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). Accordingly, the legality of Dyer's questioning (about illegal items in the car) and the voluntariness of Elliott's consent to allow Dyer to look in the trunk hinge on whether and when the detention associated with the traffic stop ended.

In determining whether a driver and police officer are engaged in a consensual encounter in the context of a traffic stop, there are few, if any, bright-line rules. Ohio v. Robinette, --- U.S. ----, ----, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996). Instead the court must focus on the totality of the circumstances in a particular case. Id. (emphasizing "fact-specific nature of the reasonableness inquiry"). In particular, "a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Sandoval, 29 F.3d at 540 (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389 (1991)).

The facts in United States v. Werking, 915 F.2d 1404 (10th Cir.1990), are strikingly similar to those here. In Werking, Patrolman Dyer (the same...