U.S. v. Gregory, 01-3613.

• Decision Date: 09 September 2002
• Docket Number: No. 01-3613.,01-3613.
• Parties: UNITED STATES of America, Appellee, v. Michael Steven GREGORY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

302 F.3d 805

UNITED STATES of America, Appellee, v. Michael Steven GREGORY, Appellant.

No. 01-3613.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2002.

Filed: September 9, 2002.

Rehearing and Rehearing En Banc Denied: October 28, 2002.

COPYRIGHT MATERIAL OMITTED

Jeffrey Marx Rosenweig, argued, Little Rock, Arkansas, for appellant.

Linda Lipe, argued, Asst. U.S. Attorney, Little Rock, Arkansas, for appellee.

Before BOWMAN, LOKEN, and BYE, Circuit Judges.

BOWMAN, Circuit Judge.

Michael Steven Gregory entered a conditional guilty plea to possession of cocaine base with intent to distribute, see 21 U.S.C. § 841(a)(1) (2000), after the District Court¹ denied his motion to suppress all evidence. Gregory and the passenger in the vehicle he was driving were arrested during a post-traffic stop investigation in the course of which an Arkansas State Police officer found cocaine, cocaine base ("crack" cocaine), and a loaded handgun in a suitcase in the vehicle's trunk. Gregory was sentenced to 180 months of imprisonment. He now appeals the District Court's denial of his motion to suppress. For the reasons stated below, we affirm.

I.

On the morning of September 22, 2000, Gregory was driving with his girlfriend in a Toyota sedan on Interstate 40 between Fort Smith and Little Rock, Arkansas. The Toyota passed the parked patrol car of Corporal Bill Glover of the Arkansas State Police not long after sunrise. Although the Toyota's headlights were on, the officer noticed that the rear license plate was not illuminated. The State of Arkansas requires automobile lighting to be wired so that any lamp that serves to illuminate the rear license plate is on whenever the headlights are on.² The officer could not read the Toyota's license plate, and he believed it was violating Arkansas law, so he decided to follow it.

At the suppression hearing before the District Court, the officer testified that when he caught up to the Toyota it was traveling approximately sixty miles an hour but was following just thirty to thirty-five feet behind a pickup truck. Arkansas law forbids a driver from following too closely.³ The officer decided to pull the Toyota over for following too closely and because he believed it was violating Arkansas law governing rear license plate illumination.⁴

The Toyota pulled over to the side of the road, and Glover parked his patrol car behind it. As the officer approached the Toyota's driver's-side window, a pit-bull dog in the rear seat began barking at him. He therefore requested that the driver, Gregory, get out, step to the rear of the vehicle, and provide his driver's license. Gregory complied, but gave the officer a California identification card instead of a driver's license.⁵ In response to the officer's queries, Gregory said the vehicle belonged to him and his wife, that he had left Las Vegas two days earlier, and that he would be visiting with friends in Little Rock for about a week.

The officer then walked around to the other side of the Toyota and asked the passenger in the front seat for her identification. She gave the officer a California identification card listing her name as Tishella Monique Browning. Browning then handed the officer a vehicle registration indicating that the vehicle belonged to Crystal Sexton, a resident of North Las Vegas. Browning told the officer that she and Gregory had departed from Los Angeles, not Las Vegas, and would be returning to California in a few days. The officer testified that Browning told him she did not know where they were going. According to Browning, however, she knew they were headed to Little Rock but could not then recall the city's name, so she told the officer they were headed to "Little" something in Arkansas. The officer questioned Gregory about the vehicle's ownership, and Gregory explained that Sexton was his wife but had not changed her surname when they married. This was true, but the officer did not believe Gregory. He also told the officer that Browning was his girlfriend.

The officer next checked Gregory's criminal history and learned that Gregory had been arrested for drug violations, assault, robbery, and homicide. The officer promptly contacted the Pope County Sheriff's Office to request backup assistance. In the meantime, he asked Gregory for permission to search the vehicle, but Gregory refused orally and in writing.

When backup assistance arrived, Glover asked Gregory and Browning to take their pit-bull dog and move to a spot approximately forty feet away from the Toyota. Glover removed his drug-sniffing dog, Crystal, from his patrol car and began scanning around the Toyota. Although Browning testified to the contrary, the District Court credited Glover's testimony that the dog alerted at both the passenger's door and the trunk. After placing his dog back in his patrol car, Glover retrieved the keys from the Toyota's ignition and opened the trunk. Gregory and Browning became greatly upset and quickly approached the officer with the pit-bull dog on a leash in front of them, stating, "You can't search my vehicle." The officer backed away from the Toyota, and Gregory slammed the trunk shut. He and Browning were then handcuffed, arrested, and transported to the Pope County jail. Glover eventually did search the trunk and found approximately 19.1 ounces of cocaine and cocaine base in zip-lock bags and a loaded .38 caliber pistol.

II.

Gregory's first contention is that the officer lacked probable cause to effect the initial traffic stop, and thus violated the Fourth Amendment, because the Arkansas statute governing following too closely is unconstitutionally vague and because the officer was mistaken in his belief that the Toyota was violating the Arkansas statute governing the illumination of rear license plates. The District Court found that Gregory was following too closely, Gregory does not dispute this finding on appeal, and "a traffic violation — however minor — creates probable cause to stop the driver of a vehicle." United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993); accord United States v. Linkous, 285 F.3d 716, 719-20 (8th Cir.2002); United States v. Beck, 140 F.3d 1129, 1133-34 (8th Cir. 1998) (concluding that an officer's observation of a motor vehicle following too closely behind another vehicle provided probable cause for a traffic stop). But Gregory argues that a violation of subsection 27-51-305(a) of the Arkansas code could not serve as probable cause for the traffic stop because this subsection is unconstitutionally vague. We do not address the constitutionality of the statute, for even if we were to find it unconstitutional, Gregory's argument would not prevail because the following-too-closely subsection was presumptively valid at the time the officer pulled Gregory over to enforce it. See Michigan v. DeFillippo, 443 U.S. 31, 40, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) ("The subsequently determined invalidity of the Detroit ordinance on vagueness grounds does not undermine the validity of the arrest made for violation of that ordinance, and the evidence discovered in the search of respondent should not have been suppressed."); United States v. Inocencio, 40 F.3d 716, 728 (5th Cir.1994) (citing DeFillippo in the course of rejecting a driver's argument that an officer did not have probable cause to stop him because Texas's following-too-closely statute was unconstitutionally vague). Because we conclude that the officer's observation of Gregory following too closely provided probable cause to justify the traffic stop, we need not consider Gregory's argument that the Toyota did not violate Arkansas law on rear license plate illumination.

Gregory further contends that the officer lacked reasonable suspicion to expand his investigation and extend the detention. An officer conducting a traffic stop "may properly expand the scope of his investigation as reasonable suspicion dictates." United States v. Foley, 206 F.3d 802, 806 (8th Cir.2000). Whether an officer had reasonable suspicion is a mixed question of law and fact, which we review de novo. See Ornelas v. United States, 517 U.S. 690, 696, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We review a district court's material findings of historical fact for clear error and "give due weight to inferences drawn from those facts" by the district court. Id. at 699.

The actions Glover took from the time he stopped the Toyota until he checked Gregory's criminal history were indisputably reasonable. The Fourth Amendment grants an officer conducting a routine traffic stop latitude to check the driver's identification and vehicle registration, ask the driver to step out of his vehicle and over to the patrol car, inquire into the driver's destination and purpose for the trip, and "undertake similar questioning of the vehicle's occupants to verify the information provided by the driver." Linkous, 285 F.3d at 719. This is precisely what Glover did.

Glover's next act was to check Gregory's criminal history. "[I]f 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." Barahona, 990 F.2d at 416. Gregory told the officer he and Browning had left from Las Vegas; Browning said they had left from Los Angeles. Browning said they would be returning to Los Angeles in a couple days, while Gregory claimed they would be staying in Little Rock for about a week. Browning was unable to tell the officer exactly where they were headed. Although the Toyota displayed Nevada license plates and was registered to a Nevada resident, both occupants produced identification from California. Gregory offered no explanation why he was authorized to take a cross-country trip with his girlfriend in a vehicle belonging to his wife. The officer had no evidence other than Gregory's own statements to confirm that the vehicle actually belonged to Gregory's wife, and,...