U.S. v. Hunnicutt, No. 97-5087

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before PORFILIO, TACHA, and KELLY; PAUL KELLY, Jr.
• Citation: 135 F.3d 1345
• Parties: 98 CJ C.A.R. 962 UNITED STATES of America, Plaintiff-Appellee, v. Denny Ray HUNNICUTT, Defendant--Appellant.
• Decision Date: 09 February 1998
• Docket Number: No. 97-5087

Page 1345

135 F.3d 1345 98 CJ C.A.R. 962 UNITED STATES of America, Plaintiff-Appellee,
v.
Denny Ray HUNNICUTT, Defendant--Appellant. No. 97-5087. United States Court of Appeals,
Tenth Circuit. Feb. 9, 1998.

Page 1346

C.W. Hack of Hack & Lundy, P.A., Tulsa, OK, for Defendant-Appellant.

Allen J. Litchfield, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff-Appellee.

Before PORFILIO, TACHA, and KELLY, Circuit Judges.

Page 1347

PAUL KELLY, Jr., Circuit Judge.

Defendant-appellant Denny Ray Hunnicutt was convicted of conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and conspiracy to use or carry firearms during and in relation to the commission of a drug trafficking crime, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He now appeals the district court's denial of his motion to suppress all searches and seizures. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Background

After being indicted by a grand jury, Mr. Hunnicutt moved to suppress various evidence, and his motion was denied. He conditionally pleaded guilty to the two counts referred to above and reserved the right to appeal the denial of his suppression motion. The following facts are recounted in the light most favorable to the government. See United States v. Villa-Chaparro, 115 F.3d 797, 800-01 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 326, 139 L.Ed.2d 252 (1997).

While on patrol during the night of January 7, 1996, Officer Raines of the Glenpool, Oklahoma Police Department turned onto Highway 75 behind a silver BMW driven by Mr. Hunnicutt, who was accompanied by two passengers. Over the course of four or five miles, the officer saw the vehicle weave four or five times across the shoulder line and the center line. He suspected the driver might be driving under the influence of alcohol and decided to stop the vehicle. He turned on the video camcorder in his patrol car and the wireless microphone on his body which recorded the subsequent events. He then turned on his overhead emergency lights. The vehicle pulled off to the shoulder but took about ten to twelve seconds over the course of a half of a mile to slow to a stop.

Mr. Hunnicutt produced a driver's license, but had no insurance verification. The officer asked Mr. Hunnicutt to accompany him to his patrol car where he ran a computer check on the vehicle and driver's license. In response to questioning, he told the officer he was taking a passenger to Muskogee. The computer checks showed the person from whom Mr. Hunnicutt claimed to be purchasing the vehicle was not the registered owner, and Mr. Hunnicutt's license was suspended. In response to further questioning, he denied there were any illegal substances or weapons in the car. He was then arrested for driving under suspension.

Mr. Hunnicutt refused to consent to a search of the car, and a canine unit was requested. A backup officer who had arrived on the scene informed Officer Raines that the passengers appeared extremely nervous and that one of the passengers said they were going to Morris, Oklahoma. Approximately fifteen minutes later, the canine unit arrived. The passengers denied possession of any illegal weapons or contraband; however, upon exiting the vehicle, one of the passengers handed the officer a brown bag, in which he found what appeared to be a large quantity of methamphetamine.

The dog did not alert to the interior or exterior of the car, but did alert to the bag. A search of the car revealed a packet of bindle bags underneath the driver's seat, a banana clip of .22 caliber shells on the console, and financial records. Upon viewing its contents, the backup officer decided to search the trunk at the police station. The officer continued searching the passenger compartment and found a knife between the seats and a loaded .44 magnum revolver on the console. At the police station, officers recovered several additional weapons, narcotics, digital scales, ammunition, drug dealing records, a police scanner, and used and unused syringes.

Mr. Hunnicutt appeals the denial of his suppression motion, arguing that (1) the initial stop was unjustified, (2) further questioning about guns and drugs was unsupported by reasonable suspicion, (3) the canine sniff was beyond the scope of the stop, (4) the canine sniff was outside the purposes of a search incident to arrest, (5) his refusal to consent to a search should not have been considered in determining reasonable suspicion or probable cause, (6) impoundment was improper, and (7) any inventory search was not done pursuant to standardized procedures.

Page 1348

Discussion

When reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous. See United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). Judging the credibility of the witnesses, determining the weight to be given to evidence, and drawing reasonable inferences and conclusions from the evidence are within the province of the district court. See Villa-Chaparro, 115 F.3d at 801. On appeal of a denial of a suppression motion, we consider the totality of the circumstances and view the evidence in the light most favorable to the government. Villa-Chaparro, 115 F.3d at 800-01. The ultimate determination of reasonableness under the Fourth Amendment is a question of law which we review de novo. See id.

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A traffic stop is a "seizure" within the meaning of the Fourth Amendment, "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). A routine traffic stop, however, is more analogous to an investigative detention than a custodial arrest. See United States v. Jones, 44 F.3d 860, 871 (10th Cir.1995). We therefore analyze such stops under the principles developed for investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Botero-Ospina, 71 F.3d at 786. To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S.Ct. at 1879.

A. The Initial Stop

Mr. Hunnicutt argues the initial stop violated the Fourth Amendment. He asserts that there was never any traffic violation and that the allegation of improper use of lane was a pretext for searching the vehicle. Our cases make clear that the government need not show a violation actually occurred to justify an initial traffic stop. An initial traffic stop is valid under the Fourth Amendment not only if based on an observed traffic violation, but also if the officer has a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. See Botero-Ospina, 71 F.3d at 787. It is irrelevant that the officer may have had other subjective motives for stopping the vehicle. See id.; accord Whren v. United States, 517 U.S. 806, 810-19, 116 S.Ct. 1769, 1773-77, 135 L.Ed.2d 89 (1996). Our sole inquiry is whether the particular officer had reasonable suspicion that the particular motorist violated "any ... of the multitude of applicable traffic and equipment regulations" of the jurisdiction. Prouse, 440 U.S. at 661, 99 S.Ct. at 1400.

Oklahoma law allows driving in the center lane for certain purposes and under...