U.S. v. Jensen

• Decision Date: 06 October 2005
• Docket Number: No. 04-30094.,04-30094.
• Citation: 425 F.3d 698
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas JENSEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.3d 698

UNITED STATES of America, Plaintiff-Appellee, v. Douglas JENSEN, Defendant-Appellant.

No. 04-30094.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2005.

Filed October 6, 2005.

COPYRIGHT MATERIAL OMITTED

Bryan Charles Tipp, Tipp & Buley, Missoula, MT, for the defendant-appellant.

Joseph E. Thaggard, Assistant United States Attorney, Great Falls, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-03-27-M-DWM.

Before O'SCANNLAIN, McKEOWN, and BEA, Circuit Judges.

BEA, Circuit Judge.

It was an excess of speed that initially brought him to the attention of authorities, but bad news eventually caught up with Defendant-Appellant Douglas Jensen ("Jensen"). Jensen was convicted for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and sentenced to life imprisonment without parole under 21 U.S.C. § 841(b)(1)(A) and 21 U.S.C. § 851(a)(1). On appeal, Jensen contends that the district court erred in denying his motion under Fed.R.Crim.P. 12(b)(3) to suppress the evidence seized from his vehicle and residence on the grounds that his arrest and the seizure of his vehicle were executed without probable cause and, accordingly, all of the evidence in the case was seized in violation of the Fourth Amendment.

Jensen also appeals his sentence on the ground that the sentencing scheme under which he was sentenced, 21 U.S.C. § 841(b)(1)(A) and 21 U.S.C. § 851(a)(1), is unconstitutional insofar as it violates: (1) the constitutional separation of powers and non-delegation doctrines; (2) Jensen's due process rights; and (3) the Eighth Amendment's prohibition on cruel and unusual punishment.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm Jensen's conviction and sentence.

I. BACKGROUND

A. Report of Jensen's Reckless Driving

At approximately 8:00 a.m. on February 19, 2003, a private citizen saw a black 1987 Ford Taurus station wagon traveling in excess of 75 miles per hour driving northbound on Highway 93 in Flathead County, Montana. The speed limit in the area was 25 miles per hour. The citizen called 911 and reported that the vehicle was traveling at a high rate of speed and "weaving in and out of traffic" in a reckless manner. He provided the dispatcher with a description of the car and the license number of the vehicle.

Thereafter, the Flathead County Sheriff's Department issued an "attempt to locate" dispatch for a reckless, possibly drunk driver, reported by a concerned citizen, and that dispatch was received by the police department in Kalispell. An "additional attempt to locate" was later issued and broadcast, which described the car more specifically as a black 1987 Ford Taurus and provided the license plate number.

At approximately 8:30 a.m., Sergeant Lonnie Eugene Cook of the Whitefish Police Department driving south on Highway 93, heard both the original "attempt to locate" dispatch and the additional "attempt to locate" dispatch.

B. Arresting Officer's Information Regarding Jensen's Drug Activities

Sergeant Cook had served on the Northwest Drug Task Force ("Task Force") from September 2000 to January 2003. During that time, he was also cross-deputized as a Flathead County Deputy Sheriff. In January 2003, Cook returned to service as a sergeant on the Whitefish Police Department, and was replaced on the Task Force by another Whitefish police officer, Detective Michael Meehan. While on the Task Force, Cook had received intelligence on Jensen's drug-running activities which included a description of Jensen's car: A black Ford Taurus station wagon.

On the basis of knowledge obtained during his time on the Task Force, Cook suspected that Jensen was the driver of the vehicle. Cook then called the Flathead County Sheriff's Department to confirm his suspicion that Jensen was the driver of the vehicle. After receiving confirmation from the Sheriff's Department that the car was Jensen's, Cook continued driving south on Highway 93 with the intention of intercepting the speeding vehicle. At that point, Cook heard on his police radio Flathead County Deputy Tykachk say that the vehicle was going north at a "high rate of speed" and that Tykachk "could not get in behind it" or catch up due to the vehicle's speed. Cook continued south along Highway 93.

C. Traffic Stop

At approximately 9:00 a.m., Cook caught up with Jensen as Jensen's vehicle made a westbound turn onto Blanchard Lake Road. Sergeant Cook stopped Jensen's car, asked to see Jensen's driver's license, and proceeded to question Jensen. A short time later, Deputy Tykachk and Flathead County Corporal Phil Meredith arrived.

Corporal Meredith began to conduct an investigation and field sobriety test. Based on the information he obtained, Corporal Meredith concluded that Jensen was not intoxicated but indicated he would cite Jensen for careless driving.

D. Arrest and Impoundment of Jensen's Vehicle

From his three years of experience as a member of the Task Force, Cook knew that the Task Force had been interested in Jensen. Cook called Task Force Detective Michael Meehan and informed Meehan that Jensen was the subject of a traffic stop. Cook then asked whether the Task Force "ha[d] any ongoing investigations" or was "looking at[Jensen] for anything" to which Detective Meehan responded, "Oh, I didn't know he was back from Mexico." Shortly thereafter, Meehan arrived at the scene of the traffic stop.

Cook called Officer Zimmerman, a senior officer on duty at the Kalispell Police Department, and inquired whether the Kalispell Police Department wished to cite Jensen for careless driving or take him into custody. Officer Zimmerman gave Cook clearance to arrest Jensen. Cook arrested Jensen and ordered Jensen's vehicle impounded. Cook then took Jensen to the impound lot, where they met Detective Meehan. After Jensen refused to consent to a search of his automobile, a police department K-9 unit drug-sniffing dog was used to check the vehicle. The dog alerted police to the presence of narcotics. Cook then transferred Jensen to the custody of the Kalispell Police Department.

As a result of the dog's indicating the presence of narcotics in Jensen's vehicle, Detective Meehan applied to a district court judge for a search warrant to search Jensen's vehicle for evidence related to the criminal possession of illegal drugs. In addition to describing the results of the canine alert, the sworn application included the statement that Jensen "is known to Meehan and other members of the [Northwest Drug Task Force] of being involved in the sale and trafficking of methamphetamine." The application also stated:

Meehan has received recent information on or about January 21, 2003 from an informant who has been proven reliable by the NWDTF. The informant advised that Jensen was currently making a trip to the Nevada California [sic] area to pick up a large quantity of methamphetamine. The informant advised that Jensen was using his black Ford station wagon to haul methamphetamine back to Montana. The same informant advised that he knew Jensen to package methamphetamine in coffee to mask the odor. The packages were hidden inside and under the station wagon and on one occasion, the informant helped Jensen unpack a large load of methamphetamine.

In the application, Meehan also reported on information received by another member of the Task Force, Detective McCarvel. According to the application, Detective McCarvel was told in December 2002 by a citizen source "very familiar with Jensen and Jensen's drug activity" that Jensen distributed methamphetamine, and regularly traveled to California to acquire methamphetamine, on one occasion in the company of the citizen source. The citizen source told McCarvel that "Jensen had previously been arrested in another state, when he was transporting drugs on one of these trips," "frequently concealed large quantities of methamphetamine in ... a tool box in the bed of a pickup or a lockbox underneath the seat of the vehicle," and "commonly stored the methamphetamine in plastic containers and used cayenne pepper to help mask the odor of methamphetamine."

The search warrant application also contained information regarding McCarvel's work with another confidential informant in January of 2003. The confidential informant was reliable, according to the application, because the informant had "provided accurate, reliable information that was corroborated ... made statements against their [sic] self interest and performed two successful controlled drug transactions." The confidential informant also claimed familiarity with Jensen's drug activities, had purchased methamphetamine from Jensen, and knew Jensen was traveling to southern California to purchase large quantities of methamphetamine for sale in Montana's Flathead Valley.

The confidential informant reportedly told McCarvel that "Jensen frequently concealed the methamphetamine in body panels or in hidden compartments, on the vehicle that he drove to California... frequently attempted to mask the methamphetamine with either coffee or pepper ... [and] usually made these trips to California approximately once every four weeks." According to McCarvel's informant, "Jensen was getting ready to leave to California (approximately the second week of January 2003), and that Jensen would be taking a 1987 Ford Taurus station wagon, black in color."

Later that same day, the county court issued a search warrant authorizing the search of the vehicle.

Detective Meehan searched the vehicle and found three Tupperware containers wrapped in black tape inside the frame under the vehicle. The containers had magnets glued to the inside and contained a crystalline substance mixed with pepper. In one container was 156.5 grams of a mixture of methamphetamine and cayenne pepper. In the second container was 206.1...