U.S. v. Gregoire

• Decision Date: 03 October 2005
• Docket Number: No. 04-4254.,04-4254.
• Citation: 425 F.3d 872
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deandre J. GREGOIRE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

425 F.3d 872

UNITED STATES of America, Plaintiff-Appellee, v. Deandre J. GREGOIRE, Defendant-Appellant.

No. 04-4254.

United States Court of Appeals, Tenth Circuit.

October 3, 2005.

Paul M. Warner, United States Attorney, and Michael Kennedy, Assistant United

States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.

Bryant K. Calloway, Irvine, CA, and Samuel P. Chiara, Price, UT, for Defendant-Appellant.

Before KELLY, O'BRIEN, and TYMKOVICH, Circuit Judges.^*

KELLY, Circuit Judge.

Defendant-Appellant Deandre J. Gregoire appeals from the denial of his motion to suppress evidence obtained from his vehicle during a traffic stop. See United States v. Gregoire, No. 2:02 CR 756 DB, 2003 WL 23355738, Memo. Op. & Order (D.Utah Dec. 2, 2003). Mr. Gregoire pleaded guilty to possession with intent to distribute five kilograms of cocaine, 21 U.S.C. § 841(a)(1) & (b)(1)(A), and was sentenced to ten years imprisonment and five years supervised release. Pursuant to Fed.R.Civ.P. 11(a)(2), he reserved his right to appeal the denial of his suppression motion. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Background

On Sunday, November 17, 2002, at approximately 8:45 a.m., Utah Highway Patrol Officer Steve Salas stopped Mr. Gregoire's vehicle for failing to signal that he was merging onto I-70 from the entrance ramp in violation of Utah Code Ann. § 41-6-69(1) (2004).¹ The trooper observed that the rear seat of the van was folded down and had been made into a sleeping area.

Pursuant to the trooper's request, Mr. Gregoire produced an Ohio driver's license. When Mr. Gregoire was told the reason for the stop, he stated that he had signaled. The trooper then asked Mr. Gregoire where he was headed, and Mr. Gregoire explained that he was returning from Las Vegas after visiting his grandfather who had a minor stroke, but then said that he was returning from visiting friends in Las Vegas where he had lost money. The trooper requested the vehicle's registration and while Mr. Gregoire was looking for it, the trooper asked whether Mr. Gregoire had just purchased the van and what Mr. Gregoire did for a living. Mr. Gregoire told the trooper that he had, and was a student. The two then had a conversation about Mr. Gregoire's fear of law enforcement troopers. Trooper Salas noticed a strong odor of air freshener. The trooper asked Mr. Gregoire about it, and Mr. Gregoire became a little bit flustered. Mr. Gregoire explained that he did not know the brand, and did not have it with him because the air freshener had been sprayed in the vehicle.

After Mr. Gregoire's operator's license and registration were verified, they were returned. The trooper then issued Mr. Gregoire a warning, explaining that Mr. Gregoire had no further obligation to contact a court or pay a fine, but he should be sure to signal when coming on or off the freeway. The district court found that at this point, Mr. Gregoire was free to leave but instead engaged the trooper in further conversation about the violation.

After explaining that he signals every time he turns, Mr. Gregoire exited the vehicle and confirmed that his turn signal was working. The trooper explained to Mr. Gregoire that he was stopped for failing to signal that he was entering the highway, not for failing to signal a turn and that he was not given a ticket, just a reminder to use his signal. The trooper then asked if he could ask Mr. Gregoire a few questions about his trip and Mr. Gregoire responded "Go ahead." Aplt.App. 17. The trooper then asked Mr. Gregoire when he went out to Nevada. Mr. Gregoire stated that he left Friday, and that he received a ticket during his trip for going 90, and that he couldn't have been going that fast. The trooper requested a copy of the citation and noticed it was from Barstow, California. When asked about this part of his trip, Mr. Gregoire explained that he went to Barstow, which he insisted is in Nevada, to shop at certain outlet stores but did not purchase anything because he lacked enough money.

The trooper next inquired about whom he stayed with on Friday night, but Mr. Gregoire could provide only a first name of a friend. In the course of inquiring, the trooper asked where Mr. Gregoire worked, what he was studying, and why his girlfriend didn't accompany him. Concerning the friend he stayed with, the trooper asked where the friend lived, whether in a house or apartment, whether he was married, and what casinos he frequented. Mr. Gregoire then told the trooper that he lost it all in Las Vegas and had to go to his credit card and there was a $300 limit. The trooper asked what Mr. Gregoire played and when he had to be back at work.

The trooper testified that he was suspicious of the many discrepancies in Mr. Gregoire's account of his travels, and this led him next to ask a series of questions about whether there was anything illegal in the vehicle. During the questioning, Mr. Gregoire indicated that the trooper could search the vehicle. See Aplt.App. 22 (Q: "Do you have anything illegal in your van today, guy"? A: "No, you can empty it if you want to."). Later in the questioning, the trooper sought and obtained Mr. Gregoire's consent to search the vehicle.

The trooper noticed that the bolts fastening the rear seat appeared to have been removed several times, the carpet had been installed loosely and was buckled, and had pulled away from molding that normally covers it. From his training and experience, the trooper testified that he was aware that the vehicle had a gap between the floor and bottom of the vehicle. At this point, he advised Mr. Gregoire that the search was going to take longer. Thereafter, the trooper drilled two small holes in the floor, but did not discover the contraband until he chipped away some undercoat that covered the bottom of the compartment. He then found a non-factory weld that held a piece of sheet metal from the vehicle's outside running board to the inner frame rail of the van. After prying the sheet metal, the trooper found a black square package containing the contraband.

Discussion

When reviewing a district court's denial of a motion to suppress, we view the evidence in the light most favorable to the government, accepting the district court's factual findings unless clearly erroneous. United States v. Cantu, 405 F.3d 1173, 1176 (10th Cir.2005). Fourth amendment reasonableness is reviewed de novo. Id. On appeal, Mr. Gregoire argues that (1) the trooper's stop of his vehicle and resultant seizure of his person was not justified at its inception because Utah law does not require a driver to signal in these circumstances, (2) the trooper's detention of Mr. Gregoire was not reasonably related to the circumstances which may have justified the detention initially because (a) the trooper prolonged the detention in the absence of reasonable suspicion, (b) Mr. Gregoire did not voluntarily consent to additional questioning or a prolonged detention, and (c) the trooper lacked an objectively reasonable belief that Mr. Gregoire committed a traffic violation, and (d) the stop cannot be justified under the good faith exception to the exclusionary rule. He further argues that (3) the warrantless search of his vehicle required suppression of the evidence obtained because (a) his consent to search the vehicle was not voluntary in fact, (b) there was an insufficient break between the illegal stop and his consent to search such that suppression is required, (c) the trooper's search of the vehicle exceeded the scope of his consent, and (d) the discovery of the contraband occurred after Mr. Gregoire had withdrawn his consent to search.

1. Was the Trooper's Stop Justified at Its Inception?

Under the Fourth Amendment, the constitutionality of a traffic stop is analyzed in the same manner as investigative detentions. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc). The stop must be justified at its inception and reasonably related in scope to the circumstances justifying it. Id. An observed traffic violation or a reasonable suspicion of such a violation under state law plainly justifies a stop. Id. at 787; see also United States v. Parker, 72 F.3d 1444, 1449 (10th Cir.1995) (drifting out of travel lane into emergency lane and failing to signal provided reasonable suspicion). Here, the issue is whether Utah law requires a driver merging to signal in these circumstances.

Mr. Gregoire was stopped for not signaling upon entering from the on ramp onto the travel lane. Aplt.App. 86; 123-124. He was not stopped for attempting to change lanes; he merely merged from the on-ramp onto the right travel lane of I-70. Id. at 41, 86. The district court observed that the on-ramp and the travel lane are separated by a solid line until a move to the left is required at which point the solid line becomes a dotted line. Id. at 124.

The district court determined that the statute required a signal in three instances: when turning, when moving right or left on a roadway, and when changing lanes. Aplt.App. 130; see also State v. Lopez, 873 P.2d 1127, 1134 n. 1 (Utah 1994) (turning without signaling violates statute). It concluded that the merging in these circumstances constituted moving left onto a roadway, thereby requiring a signal. Aplt.App. 130. The merge in this case did not constitute changing lanes because the two lanes become one and the statute's reference to right or left movement more specifically described this situation. Id. at 131. "One cannot merge onto a roadway without moving to the left or the right." Id. It rejected Mr. Gregoire's position as inconsistent with the plain meaning of the statute and without support in the law.

While the former may be true, the latter is not. In United States v. Powell, 929 F.2d 1190 (7th Cir.1991), a Seventh Circuit panel determined that a Utah stop predicated on a failure to signal when merging was invalid and could not constitute probable cause for a stop. Id. at 1194...