U.S. v. Hardy

• Decision Date: 19 September 1988
• Docket Number: No. 87-8855,87-8855
• Citation: 855 F.2d 753
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Gilbert HARDY and Buddy Huffman, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 753

855 F.2d 753

57 USLW 2279

UNITED STATES of America, Plaintiff-Appellee, v. Charles Gilbert HARDY and Buddy Huffman, Jr., Defendants-Appellants.

No. 87-8855.

United States Court of Appeals Eleventh Circuit.

Sept. 19, 1988.

Rehearing and Rehearing En Banc Denied Nov. 4, 1988.

John Nuckolls, Atlanta, Ga., for defendants-appellants.

Nicolette S. Templer, Julie E. Carnes, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Appellants Charles Gilbert Hardy and Buddy Huffman were each indicted on one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841, one count of possession with intent to distribute marijuana, also in violation of 21 U.S.C. Sec. 841, and one count of conspiracy to possess cocaine and marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 846. After holding an evidentiary hearing on the circumstances of appellants' detention by a Georgia state trooper, a magistrate concluded that the seizure of contraband in appellant's possession did not violate the fourth amendment and recommended that the narcotics found as a result of that seizure not be suppressed. The district court adopted the magistrate's report and recommendation. Pursuant to Fed.R.Crim.P. 11(a)(2), appellants, with the consent of the district court and the government, entered conditional pleas of guilty and preserved their rights to appeal the suppression order. They now appeal that ruling, and we affirm.

I.

On the evening of January 30, 1987, Trooper Michael Ralston of the Georgia State Patrol was investigating an accident on Interstate Highway 75 in northwestern Georgia when he observed a speeding northbound automobile. After completing his investigation of the accident, Ralston pursued the speeding car and eventually overtook a Lincoln Town Car that was passing several other vehicles. Ralston determined by use of radar that the Town Car was traveling at 67 miles per hour in a zone with a speed limit of 55 miles per hour. At approximately 8:57 p.m., Ralston turned on the blue light of his patrol car and pulled the Town Car to the side of the road.

Ralston asked the driver of the Town Car (Huffman) to produce a driver's license and vehicle registration. Huffman was unable to provide a driver's license or any other form of identification. Huffman told Ralston that he had lost his wallet and driver's license while on vacation in Florida. Huffman further said that he and the passenger of the car (Hardy) had spent a couple of weeks in Fort Myers, Florida, that they had been fishing, and that they had stayed with friends in Fort Myers. Huffman advised Ralston that the car belonged to the passenger, whom Huffman knew only as "Charles" or "Charlie" and whose surname Huffman did not know.

Ralston then approached Hardy for the vehicle registration, which Hardy provided. The car was registered and titled to Hardy's wife Karen, of Elkhart, Indiana. In response to Ralston's questions, Hardy stated that the two had been to Fort Myers for four days and that they had stayed in a trailer owned by Hardy. ¹ Hardy also told Ralston that he knew Huffman only as "Buddy" and did not know Huffman's surname.

The initial questioning of Huffman and Hardy lasted approximately fifteen minutes. Ralston returned to his patrol car and ran a computer check to determine whether Huffman's driver's license was valid and whether Huffman was wanted for any crimes. After approximately ten minutes, Ralston learned that Huffman possessed a valid license and was not wanted. Ralston nonetheless remained suspicious about the men, due to their inability to identify each other's surnames, the inconsistencies between their accounts of the fishing vacation, and Huffman's lack of identification. As he exited his patrol car, Ralston activated a video camera mounted on his dashboard.

Ralston gave Huffman a warning for the speeding offense and returned the vehicle registration to Hardy. Ralston asked Hardy whether he would consent to a search of the automobile. Hardy initially acceded to this request but withdrew his permission after reading a printed consent form provided by Ralston. Ralston next approached Huffman for consent to search the vehicle. Huffman seemed willing to give his permission to search the car, or at least his own suitcase in the trunk. ² After further discussion, however, Ralston concluded that Huffman lacked authority to grant consent to search over Hardy's objection. His suspicions not dispelled, Ralston informed the men that he was detaining them on the highway until he could obtain a narcotics dog to "sniff" the car and run a more extensive computer check on persons wanted for drug offenses through a Drug Enforcement Administration clearinghouse.

Ralston radioed the Sheriff's Department of Murray County, Georgia, to request a narcotics dog. Sergeant Peggy Cloer, the dispatcher, punched a time card indicating that the call was received at 9:34 p.m. Cloer called Leroy Green, the handler of the narcotics dog, who was attending a high school basketball game 20 to 30 miles from where Huffman and Hardy were being detained. Green left immediately and, after retrieving the most accessible trained dog, drove to the site of the stop. He radioed the Sheriff's Department upon his arrival at 10:11 p.m. Cloer again acknowledged the communication by punching a time card.

Green's dog alerted to the presence of narcotics in the car's trunk. Concluding that he now had the right to search the car without Hardy's consent, Ralston opened the trunk by pushing the electronic release button in the dashboard. In the trunk Ralston found a small suitcase and a small blue travel bag; inside the blue bag were three plastic bags containing a substance that Ralston believed to be marijuana. Ralston formally arrested Huffman and Hardy and placed them in the patrol car. A further search of the car revealed a brown paper bag containing three kilograms of a substance resembling cocaine, another paper bag containing $2,000.00 in cash, and a long butcher knife.

II.

We first consider whether Ralston was justified in stopping the Town Car for speeding. ³ Appellants argue that Ralston's traffic stop was a mere pretext for the investigation, without reasonable suspicion, of narcotics offenses. As we have stated numerous times, the proper inquiry for determining whether a stop is pretextual is "whether a reasonable officer would have made the seizure in the absence of illegitimate motivation." United States v. Smith, 799 F.2d 704, 708 (11th Cir.1986); accord United States v. Bates, 840 F.2d 858, 860, 1988 WL 18,329 (11th Cir.1988); United States v. Miller, 821 F.2d 546, 549 (11th Cir.1987). ⁴

There is no doubt that when Ralston pulled the Town Car to the side of the road, he had probable cause to believe that the driver of the vehicle had violated a Georgia traffic law. To support their claim that the stop was nonetheless pretextual, appellants place chief reliance on Trooper Ralston's participation in "Operation Nighthawk," a program involving the deployment of Georgia state troopers along interstate highways to interdict persons transporting narcotics from Florida to northeastern metropolitan areas. At the suppression hearing, appellants introduced a memorandum by the Commissioner of the Georgia State Patrol stating that state troopers involved in Operation Nighthawk would be used for "specifically targeting narcotics 'mules' traveling through Georgia to and from Florida," would be deployed "during peak drug traffic hours," and would "concentrate on northbound traffic, [remaining] on the interstate as much as possible." According to appellants, this memorandum proves that the Georgia State Patrol largely abandoned its role of enforcing traffic laws and converted to a drug investigation force. The memorandum states, for example, that " 'Nighthawk' patrols will not investigate accidents, unless a major collision on an interstate highway requires their assistance." ⁵

The crucial defect in appellants' argument is that Operation Nighthawk expired before the date of their arrest. Ralston testified that the special deployment of Nighthawk patrols on the interstate highways ended in October or November of 1986, and this testimony was not rebutted. Ralston admitted on cross-examination that "the philosophy" of Operation Nighthawk remained, but according to Ralston's testimony, this "philosophy" meant no more than troopers being "aware of what was occurring [i.e., drug trafficking]." R3-83. There is no constitutional violation in peace officers simply having an increased understanding of circumstances suggesting criminal activity; like other professionals, state troopers must be trained. ⁶ As our predecessor court stated, "if the initial stop was legal, the [officer] had the duty to investigate suspicious circumstances that then came to his attention." United States v. Cruz, 581 F.2d 535, 539 (5th Cir.1978) (en banc).

Ralston's testimony established that his decision to stop the Town Car was made as part of a routine traffic investigation. Ralston had not spent the day lying in wait for northbound cars from Florida. Cf. United States v. Miller, 821 F.2d at 547 (state trooper parked perpendicular to northbound lanes, with headlights illuminating occupants of passing vehicles). Ralston left the State Patrol post at 8:00 p.m. to investigate a traffic incident--a duty that, indeed, was incompatible with the provisions of Operation Nighthawk. He decided to pursue the Town Car only after he observed it speeding. He engaged his blue light after he saw the Town Car pass numerous other vehicles and after he determined, by reference to his radar unit, that the Town Car was exceeding the speed limit. A "drug courier profile" played no role in this...