U.S. v. Johnson

• Decision Date: 02 November 2010
• Docket Number: No. 10–6066.,10–6066.
• Citation: 630 F.3d 970
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Rodney Bynard JOHNSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

630 F.3d 970

UNITED STATES of America, Plaintiff–Appellee,

v.Rodney Bynard JOHNSON, Defendant–Appellant.

No. 10–6066.

United States Court of Appeals, Tenth Circuit.

Nov. 2, 2010.

Ashley L. Altshuler, Special Assistant United States Attorney (Sanford C. Coats, United States Attorney and Jonathon E. Boatman, Assistant United States Attorney, with him on the Brief), Oklahoma City, OK, for the Plaintiff–Appellee.William P. Earley, Assistant Federal Public Defender, Oklahoma City, OK, for the Defendant–Appellant.Before MURPHY, HOLLOWAY and O'BRIEN, Circuit Judges.HOLLOWAY, Circuit Judge.

Defendant-appellant Johnson was charged with possession of a firearm after former conviction of a felony. After his motion to suppress was denied, the parties agreed to a non-jury trial on stipulated evidence. The district judge found the defendant guilty. At sentencing the judge found that defendant had three qualifying prior felonies under the Armed Career Criminal Act (ACCA) and imposed a fifteen-year sentence, which was the mandatory minimum under the ACCA, and ordered payment of a special assessment of $100.00 and four years of supervised release on release from imprisonment.

Mr. Johnson now appeals the denial of his motion to suppress evidence and the sentence imposed by the district court. We have jurisdiction under 28 U.S.C. § 1291.

I. Background

We view the record in the light most favorable to the prevailing party—here the government. See United States v. Salazar, 609 F.3d 1059, 1061 (10th Cir.2010).

This case grew out of a routine traffic stop. The only witness to testify at the suppression hearing was the arresting officer, Trooper Kimmons of the Oklahoma Highway Patrol. The only other evidence admitted at the hearing was the videotape of the traffic stop. The trooper's written report was discussed in testimony but not admitted in evidence.

The following summary is from the district court's order denying the motion to suppress. This summary was relied on in the Principal Brief of the Appellant, which states at page 3 that: “The facts developed at the evidentiary hearing on the motion to suppress were comprised of the testimony of Oklahoma Highway Patrol Trooper Joe Kimmons and a videotape of the stop from a camera located in Trooper Kimmons' patrol unit.”

Defendant Johnson was driving a car on one of the interstate highways in Oklahoma City at about 3:30 in the morning when the trooper saw him swerve suddenly into another lane. The trooper testified that the driver had committed a violation at that point, an unsafe lane change. The trooper, however, followed the defendant for about one mile before pulling him over. During the time that he was following the car, the trooper saw the three occupants “shuffling frantically inside” the car and called for backup before pulling the car over. Because of the time of night, the movements in the car, and the fact that the car had a bar code on it that suggested it was rented, the trooper suspected the occupants might be involved in something criminal. More specifically, he testified that he suspected because of the unusual movements that the occupants of the car had a gun and that he was accordingly concerned for his safety when he activated his emergency lights and pulled the car over.

Because he was concerned for his safety, the trooper did not approach the car after pulling it over but asked the driver to come back to the patrol car. He had defendant lift his shirt before getting in the patrol car so that he could see that there was no weapon in his waistband. Once the defendant entered the car, the trooper immediately noticed a strong odor of burnt marijuana. In response to routine questions, defendant said that he was from Oklahoma City and had an identification card, but not a driver's license. Defendant said that the passenger in the front, Zach Walker, had rented the car. When asked to identify the other passenger, defendant only knew his “street name.” Defendant told the trooper that he and his companions had just dropped his cousin off on the northwest side of town and were going to the south side to get a motel room.

The trooper then approached the stopped car to get the rental contract, leaving defendant in the patrol car. As soon as the front seat passenger rolled down his window, the trooper smelled burnt marijuana. He also saw open beer cans. (Apparently none of the three men appeared intoxicated, however.) The passengers both said that they were from Missouri and that the car either belonged to or had been rented by the girlfriend of one of them. (The district judge said that he could not tell from the audio which response had been given.) Neither passenger had a driver's license with them; Walker had no identification at all but did provide his social security number.

The trooper ran a records check on the occupants and asked the defendant about drugs, saying that he asked because he smelled marijuana. Defendant either denied smoking it or said that he had been around it earlier in the night. Based on the odor he had detected and other facts mentioned above, the trooper decided he had grounds to search the car. With the help of other officers who had arrived at his request, the trooper removed all the car's occupants and searched the entire car. A gun was found on the driver's seat, under a blanket. Defendant admitted the gun was his. At some point afterward, the trooper got a report back on the occupants and learned that defendant was a convicted felon.

II. The District Court's Ruling

In his motion to suppress, the defendant did not challenge the initial stop but only the search of the car. The district judge first rejected one of the government's two justifications for the search—that it was a valid inventory search. The judge found the evidence insufficient to show that the officers had decided to impound the car before they searched it. The judge said that it was “unclear whether impoundment was the reason for the search or an afterthought to justify it.”

The judge concluded, however, that the search was supported by probable cause. His review of the evidence yielded several factors supporting probable cause, of which the smell of marijuana weighed the heaviest. The court said that the defendant's challenge was basically an attack on the trooper's credibility. Defendant had pointed out that the officer's report did not mention that he had smelled marijuana in the car, only on the defendant's person. But the court found the trooper's testimony on that point to be credible. Moreover, the judge rejected the defendant's legal argument that the search of the car would not have been justified if the smell had only been detected on the defendant himself.

The additional factors listed by the court were that the vehicle was from out of state; the lessee or owner of the car was not present; the defendant did not know the actual name of one of his companions (the trooper had testified that criminals sometimes only know each other by nicknames); it was very late at night; the passengers had made unusual movements while the officer had been following the car; and the occupants' plans were vague. The court found that these facts cumulatively amounted to probable cause.

III. Analysis

A. Reasonableness of the search.

In reviewing the denial of a motion to suppress evidence, we accept the findings of fact made by the district court unless they are clearly erroneous, but the ultimate question of reasonableness under the Fourth Amendment presents a question of law for our plenary review. See, e.g., United States v. Manjarrez, 348 F.3d 881, 884 (10th Cir.2003).

As the district court observed, the defendant's argument is basically an attack on the credibility of the trooper. The defendant supports the attack primarily by focusing on discrepancies between the officer's testimony and the videotape of the encounter.

In his brief, defendant enumerates discrepancies between the videotape and the trooper's testimony or between the tape and the district court's findings. First, the trooper testified that he smelled marijuana immediately upon defendant's entering the patrol car, but the videotape shows that nine minutes passed before the trooper asked defendant about marijuana. Two, the trooper testified that defendant had said that the backseat passenger did not have a driver's license, but the tape shows that defendant said that he thought the man did have one.

Three, the trooper testified that defendant told him that he had come into town from St. Louis for a birthday party; the tape shows defendant said he was from Oklahoma City and had just dropped his cousin off. Four, the court found that defendant did not know the names of his two passengers; the tape shows defendant identified the front seat passenger as Zach Walker. Five, the district court found that the occupants' plans were vague, but defendant advised the trooper that they were going to get a motel room on the south side of town.

Without further analysis, defendant concludes that the district court erred in concluding that probable cause supported the search of the automobile. We are not persuaded.

First we note that the odor of marijuana by itself is sufficient to establish probable cause. United States v. Downs, 151 F.3d 1301, 1301 (10th Cir.1998). Because the district court specifically found the trooper to be credible when he testified that there was a strong odor of burnt marijuana emanating from the car when he approached to question the passengers, we can find no error in the conclusion that probable cause was established to justify the search of the car. Moreover, as recited supra, in this case the district judge also found other factors that supported probable cause, although the judge apparently did not regard any of them individually as being particularly weighty.

For the most part, defendant's argument rests on inconsistencies in the evidence on some of these lesser factors. We will...