U.S. v. Klinginsmith, 93-3218

• Decision Date: 17 June 1994
• Docket Number: No. 93-3218,93-3218
• Citation: 25 F.3d 1507
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Bradley KLINGINSMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1507

25 F.3d 1507

UNITED STATES of America, Plaintiff-Appellee, v. Mark Bradley KLINGINSMITH, Defendant-Appellant.

No. 93-3218.

United States Court of Appeals Tenth Circuit.

June 17, 1994.

David Lind (Randall K. Rathbun, U.S. Atty., and Thomas G. Luedke, Asst. U.S Atty., with him on the brief), Topeka, KS, for plaintiff-appellee.

Steven L. Davis of Patton, Davis & Putnam, Emporia, KS, for defendant-appellant.

Before BALDOCK, Circuit Judge, and McWILLIAMS, Senior Circuit Judge, and SHADUR, Senior District Judge. ^*

McWILLIAMS, Senior Circuit Judge.

Mark Bradley Klinginsmith and Fredrick Aldon Magee were jointly charged in the first count of a two-count indictment with unlawfully conspiring on November 12, 1992, to possess with an intent to distribute approximately 182 pounds of marijuana, a Schedule I Controlled Substance, in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(C). In the second count, both were charged with unlawfully possessing on November 12, 1992, with an intent to distribute approximately 182 pounds of marijuana, in violation of 21 U.S.C. Secs. 841(a)(1), (b)(1)(C) and 18 U.S.C. Sec. 2.

Prior to trial, Magee, pursuant to a plea agreement, pled guilty to one count and agreed to testify against Klinginsmith and later did so.

A jury convicted Klinginsmith on both counts, and he was sentenced to imprisonment for 78 months. On appeal, Klinginsmith raises three matters: (1) the district court erred in denying his pretrial motion to suppress the use at trial of the 182 pounds of marijuana found by the police in the vehicle which Magee was driving and in which Klinginsmith was a passenger; (2) the district court erred in denying his motion for a mistrial based on an alleged violation of the district court's sequestration order; and (3) the district court erred in determining that the amount of marijuana taken from his automobile was at least 80 kilograms, resulting in a base offense level of 24, whereas if the amount was less than 80 kilograms his base offense level would have been 22. We find no reversible error and affirm.

I. Motion to Suppress

Klinginsmith's first ground for reversal is the district court's failure to grant his motion to suppress the use at trial of the 182 pounds of marijuana seized in a search of his vehicle. In this regard, Klinginsmith claims that his Fourth Amendment rights were violated. The district court held an evidentiary hearing on this motion and denied the same, except as to some rather minor matters. More about that later. Some background facts as developed at the hearing on the motion to suppress will place this issue in focus.

The Kansas Highway Patrol ("KHP") developed a rather novel, to us at least, investigative technique for detecting drug couriers using Kansas highways. Interstate I-35, a four-lane highway, runs in a northeasterly direction from Wichita, Kansas, going through Emporia, Kansas and on to Kansas City, Kansas. We are here concerned with a light blue 1992 Buick LeSabre, bearing Nebraska license plates, which was proceeding from Wichita to Kansas City on November 12, 1992. The vehicle was driven by Magee, and Klinginsmith was a passenger therein.

Exit 160 from I-35 leads to Melvern, Kansas, a small hamlet located in Osage County, Kansas. Just south of Exit 160, the KHP placed a large sign, visible to all driving northeasterly on I-35, which read as follows: "NARCOTIC CHECK LANE AHEAD." This sign was but a ruse, as there was no NARCOTIC CHECK LANE AHEAD. Exit 160 indicates that Melvern is to the north, and that a frontage road is to the south. The reason for the sign reading NARCOTIC CHECK LANE AHEAD was the belief of the KHP that if after reading the sign a driver, particularly an out-of-state driver, turned off at Exit 160, such would possibly indicate that the driver did not want to go through a narcotics check, and would therefore suggest that he or she might be carrying drugs.

In any event, traffic turning off I-35 at Exit 160 was monitored by the KHP. At approximately 10:50 a.m. on November 12 1992, Troopers Simone and Heady, who were driving separate cars, were advised that a blue vehicle bearing Nebraska license plates had left I-35 at the Melvern Exit and was proceeding south on a gravel frontage road at a high rate of speed. Both troopers began pursuing the car, Trooper Simone driving 80 miles per hour in order to catch up and make visual contact with the vehicle. After traveling some three and one-half miles, Trooper Simone spotted the vehicle. The car, a light blue Buick LeSabre, was just coming to a stop at a stop sign where the gravel frontage road meets "old" Highway 50. Trooper Simone observed the car turn left, travel a short distance and then pull into a gas station where the driver stopped near the diesel pumps.

At this point, Trooper Simone drove his car into the gas station and stopped several feet behind the Buick. The driver of the Buick, Magee, left his vehicle and began walking toward Trooper Simone's car. The passenger, Klinginsmith, remained in the Buick. Trooper Simone left his car and asked Magee if he could ask some questions. Magee agreed. Magee said he had exited I-35 to look for a gas station, and that he was traveling from Oklahoma City, Oklahoma to Lincoln, Nebraska. Upon request, Magee produced a driver's license. Magee indicated that the vehicle had been rented by Klinginsmith. The conversation between Trooper Simone and Magee lasted some 30 seconds.

By this time, Trooper Heady had arrived at the scene and parked behind Trooper Simone's car. His car had a video camera mounted on the dashboard and a wireless microphone, which he used when operating the video camera. Trooper Heady activated the video camera and the microphone, and the events that thereafter occurred at the gas station within view of the camera were tape recorded. The district judge viewed, and heard, the tape at the suppression hearing.

Trooper Simone then proceeded to the passenger's side of the Buick and asked Klinginsmith if he would mind answering a few questions. Klinginsmith consented and said they were coming from Mississippi and that he didn't know just where they were going. He produced a driver's license and the rental papers for the car. Magee, in the meantime, told Trooper Heady that though they were coming from Oklahoma City, the trip had originated in Mississippi where they had been building parking lots.

Jumping ahead, Trooper Heady asked Klinginsmith if there were any weapons or drugs in the car, and Klinginsmith said there were not. And in response to an inquiry as to whether the car could be searched, Klinginsmith said he had no objection. Magee, in response to inquiry said he, too, had no objection to a search of the Buick.

By this time, a dog had been brought to the scene and it "alerted" to the Buick automobile. At this point, the officers handcuffed Magee and Klinginsmith. The "alerting" and handcuffing occurred about 15 minutes after Trooper Simone had pulled in behind the Buick at the gas station. The key for the trunk was not immediately forthcoming, but eventually Klinginsmith showed the troopers where the key to the trunk had been hidden. The trunk was then opened and a number of packages of marijuana were discovered under a green tarp. We will consider the amount of marijuana found in the Buick in part III of this opinion. About 38 minutes after the dialogue started between Trooper Simone and Magee, the defendants were arrested and both given a Miranda warning.

Based on the record before him, the district judge denied the motion to suppress, though he did order that the government could not use any statements made by the defendants after they were handcuffed and before they were given the Miranda warning.

In denying, in the main, the motion, the district court reasoned that Troopers Heady and Simone did not violate any of Klinginsmith's Fourth Amendment rights when they followed the Buick vehicle as it exited I-35 and proceeded south on the frontage road. The district court held that the troopers did not themselves "stop" the other vehicle which was stopped alongside a pump by Magee. The district court concluded that the preliminary questioning concerning driver's license, car registration, where they were coming from, and where they were going, was a consensual encounter, and that even if it was an investigative detention, it was supported by reasonable, articulable suspicion under the Terry-stop doctrine. Further, the district court concluded that within about 15 minutes after the initial dialogue, both Klinginsmith and Magee consented to the car being searched. And when the canine "alerted" to the vehicle, the district court held that the officers had probable cause to arrest the defendants and effect an immediate search under the automobile exception to the search warrant requirement.

We agree completely with the district court's analysis of this matter. The fact that Troopers Simone and Heady "followed" Magee and Klinginsmith down the frontage road does not constitute a "seizure." See United States v. Langston, 970 F.2d 692, 697-98 n. 3 (10th Cir.1992) (consensual encounter when driver pulled over after an officer drove up alongside him and made eye contact), cert. denied, --- U.S. ----, 113 S.Ct. 439, 121 L.Ed.2d 358 (1992), 113 S.Ct. 479 (1992), --- U.S. ----, 113 S.Ct. 495, 121 L.Ed.2d 433 (1992), --- U.S. ----, 113 S.Ct. 1872, 123 L.Ed.2d 491 (1993). The troopers did not stop the Buick. Magee did. The questioning of each regarding license, car registration, and the like is permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny, where there is, as in the instant case, reasonable suspicion of criminal activity. ¹ Both Magee and Klinginsmith consented to a search of the car, which would have justified the police in searching the Buick without the intervening fact that a dog "alerted" to the vehicle. And when the dog "alerted," there was probable...