U.S. v. Hornbecker

• Decision Date: 09 January 2003
• Docket Number: No. 01-1969.,01-1969.
• Citation: 316 F.3d 40
• Parties: UNITED STATES of America, Appellee, v. Michael HORNBECKER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

316 F.3d 40

UNITED STATES of America, Appellee, v. Michael HORNBECKER, Defendant, Appellant.

No. 01-1969.

United States Court of Appeals, First Circuit.

Heard September 9, 2002.

Decided January 9, 2003.

Sara Rapport, with whom Perkins, Smith & Cohen was on brief, for appellant.

Dickens Mathieu, Assistant U.S. Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

In the course of a lengthy roadside stop, Illinois state troopers discovered more than 400 pounds of marijuana in a 1957 Volkswagen pickup truck that defendant Michael Hornbecker had been towing across the country. Hornbecker subsequently pleaded guilty to conspiring to distribute marijuana, but reserved his right to appeal the district court's earlier denial of his suppression motion. Hornbecker acknowledges that he voluntarily signed a consent-to-search form approximately 23 minutes after he was stopped, but argues that the ensuing search was rendered unlawful by the troopers' prior Fourth Amendment violations. We disagree and accordingly affirm.

I. Background

We take our factual recitation from the record of the proceedings below, which included the introduction into evidence of a videotape of the search made by the Illinois state police. On August 16, 1998, at just prior to 7:58 p.m. (according to the timer on the police videotape), Illinois State Trooper John Rugen stopped Hornbecker as he was heading east on Interstate 80 in LaSalle County, Illinois. Hornbecker was driving a 1987 Chevrolet pickup with California license plates and towing a flatbed trailer on which sat the Volkswagen. Rugen, who was then a member of an Illinois state police drug interdiction unit that used routine traffic stops to further its purposes, told Hornbecker that he had been stopped for driving seven miles per hour over the applicable speed limit and for having a cracked windshield.

As Rugen was asking Hornbecker for his license and registration, he also inquired about Hornbecker's travel itinerary. Hornbecker replied that he was driving from southern California to New Hampshire to sell the Volkswagen. Rugen found this answer fishy because the Volkswagen did not appear sufficiently valuable to warrant a cross-country drive to sell it. He wondered whether Hornbecker might be transporting drugs in the Volkswagen because southern California is a drug source region and because the Volkswagen's unusual body style looked as though it contained a voluminous, difficult-to-access area behind the cab and between the bed and the undercarriage. Despite (or perhaps because of) his suspicion, Rugen's affect was friendly, even gregarious. Rugen informed Hornbecker that he was only going to give him a warning. While returning to the cruiser to write the warning, Rugen stepped up on the flatbed trailer so that he could further survey the Volkswagen's atypical body structure.

Rugen radioed for a check on Hornbecker's license, registration, and criminal history. Seconds later, Rugen radioed for a drug-sniffing dog to be brought to the scene. Almost immediately after requesting the dog, Rugen learned that Hornbecker had a valid driver's license and registration and no outstanding warrants or criminal history. Nevertheless, Rugen did not complete Hornbecker's warning and send him on his way. Instead, at just after 8:02 p.m., Rugen returned to Hornbecker's car to ask whether Hornbecker had papers verifying ownership of the Volkswagen. Hornbecker replied that he did and, because the papers were in the Volkswagen, exited the Chevrolet to retrieve them.

As the two stood next to the old pickup, Rugen amiably and off-handedly questioned Hornbecker about it. Pointing to the enclosed area behind the cab, Rugen asked, "What is this, storage under here?" Hornbecker replied, "That's the way it came, right? ... The motor and gas tank is here." Hornbecker then entered the Volkswagen's cab and began to search for its paperwork. Rugen peered beneath the Volkswagen and noticed that the engine was not just behind the cab, as Hornbecker had indicated, but was all the way to the rear. Rugen returned to his cruiser and took a seat inside, while Hornbecker went back to the Chevrolet to retrieve his briefcase, where he now said he thought the paperwork was.

Between 8:06 and 8:07 p.m., Trooper Craig Graham arrived with a drug-sniffing dog. A few seconds later, Hornbecker walked back to Rugen's cruiser and told Rugen that he had not yet found the requested paperwork, but insisted he had it with him. Hornbecker then returned to his vehicles and resumed his search. Meanwhile, Graham approached Rugen's cruiser. Rugen told Graham that "this thing looks screwed up," explaining that the Volkswagen's engine was not where Hornbecker had said it was and expressing concern about the large, inaccessible space behind the truck's cab. Graham began to examine the Volkswagen, peering into its cab with a flashlight and stepping up on the trailer to look into its bed. He then returned to the driver's side of Rugen's vehicle, signaling that he would walk the dog around the tow trailer. Graham noted that another state trooper had "got one just like that. It was on the back of a Ryder truck."

Apparently now having located the Volkswagen's papers, at shortly after 8:08 p.m. Hornbecker brought them to Rugen, who invited Hornbecker to sit with him in the cruiser as he completed the warning. Rugen informed Hornbecker that Graham would be walking the dog around Hornbecker's vehicles and asked whether Hornbecker was carrying anything illegal. Hornbecker replied that he was not. As Graham conducted the drug sniff, Rugen engaged in friendly banter with Hornbecker, asking him a number of questions about the Volkswagen and the vintage car trade. The dog did not alert. Shortly after 8:11 p.m., Rugen handed Hornbecker a written warning, returned all of his documents, and told him, "You're all set to go, free to leave." Hornbecker responded by asking Rugen about the effect of the warning. Rugen explained that it would show up in the computer if Hornbecker were stopped again in Illinois. Rugen again told Hornbecker that he was "all set to go," but then immediately asked whether he might take a look "at that engine compartment there," quickly explaining "I have never seen a truck like that before.... `Course I'm only 31 years old." Hornbecker replied "You certainly may."

At just prior to 8:12 p.m., Rugen and Graham went to the rear of the Volkswagen (where Rugen understood the engine to be despite Hornbecker's earlier indication that it was behind the cab) and attempted to pry open the engine compartment's access door. Hornbecker said something about a screwdriver, to which Rugen responded, "Oh, it takes a screwdriver? I got a screwdriver." He retrieved one from his cruiser, opened the compartment door, and (with Graham) peered inside.

After completing their examination of the engine compartment, the troopers closed its access door and began to examine the remainder of the Volkswagen's exterior, tapping it, banging on it, and asking Hornbecker questions about it. At all times, the troopers were friendly. Rugen conveyed what was almost certainly a contrived fascination with the "big ole truck," at one point stating he might have "to buy one of these." At around 8:14 p.m., Rugen asked Hornbecker if he could look in the Volkswagen's cab. Although Hornbecker's response is inaudible, the videotape suggests that Hornbecker consented.¹ A couple of minutes later, Rugen asked Hornbecker for the key to the gas port. Hornbecker replied that, like the engine compartment, the port could be accessed with a screwdriver. Rugen pried open the gas port, looked inside, and stated, "[T]his is not right." Rugen explained to Hornbecker, who himself had voluntarily removed some items from the truck's bed, that he was concerned about the unaccounted-for space in the area behind the cab. At just after 8:19 p.m., Rugen returned to his cruiser and radioed a request that another trooper bring him a device that measures the density of inaccessible areas. Rugen then returned to Hornbecker, reiterated his concern about the area behind the cab, and told Hornbecker that he wanted to bring somebody to the scene with a device for measuring spaces. Rugen subsequently asked Hornbecker to sign a form consenting to a search of the Volkswagen. At approximately 8:20 p.m., nearly 23 minutes after being pulled over, Hornbecker voluntarily signed the form. About an hour and a quarter later, the troopers breached the space behind the cab and discovered the marijuana.

Illinois authorities subsequently charged Hornbecker with cannabis trafficking, but Hornbecker prevailed on a pretrial suppression motion which argued that the troopers had violated his Fourth Amendment rights. The state unsuccessfully appealed that ruling and eventually abandoned the prosecution. Meanwhile, as the state's appeal was pending, a federal grand jury sitting in Massachusetts indicted Hornbecker for participating in a multi-participant marijuana distribution conspiracy. Hornbecker subsequently filed a motion to suppress in the federal case, contending that his eventual written consent to the search was vitiated by the fact that Rugen began violating his Fourth Amendment rights at around 8:02 p.m., when Rugen continued to detain him despite learning that Hornbecker's license and registration were valid and that there were no outstanding warrants against him.

Hornbecker presented two arguments in support of this constitutional claim. First, he asserted that his detention from approximately 8:02 p.m. until approximately 8:11 p.m. (when Rugen gave him the warning, returned his documents, and told him that he was free to go) was unreasonable because Rugen lacked justification to continue the traffic stop after learning that Hornbecker was not wanted, had...