U.S. v. Lyons, 93-4079

Citation7 F.3d 973
Decision Date02 November 1993
Docket NumberNo. 93-4079,93-4079
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael LYONS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Ronald J. Yengich of Yengich, Rich & Xaiz, Salt Lake City, UT, for defendant-appellant.

Kevin L. Sundwall, Sp. Asst. U.S. Atty. (Richard D. Parry, U.S. Atty., and David J. Schwendiman, Asst. U.S. Atty., with him on the briefs), Salt Lake City, UT, for plaintiff-appellee.

Before LOGAN, SEYMOUR, and MOORE, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

Michael Lyons entered a conditional plea of guilty to a charge of possession of marijuana with intent to distribute. He appeals on issues related to the seizure of the substance which led to the conviction. The only matter we consider is whether the finding of the magistrate judge, subsequently adopted by the district court, that the stop of defendant's truck was not pretextual is erroneous. Concluding that it is, we reverse and remand.

While on routine patrol with another officer on I-15 in Juab County, Utah, Sergeant Paul Mangelson of the Utah Highway Patrol was attracted to a pickup truck "by the way this vehicle was being operated on the road." Following the truck for approximately two miles, Sergeant Mangelson saw it "weave" three to four times within its lane of the divided highway. The two lanes in the truck's direction of travel were sixteen to eighteen feet wide, and during the period of Mangelson's observation the truck remained within its own lane.

Recalling that some drivers on this stretch of road came from gambling in Las Vegas or Mesquite, Nevada, where they had been drinking or had gone without sleep, Mangelson decided to investigate further. Pulling alongside the truck, he looked at the driver, who was later identified as defendant Michael Lyons. Mangelson noted Mr. Lyons "had a look about him that appeared to me to be a person that was impaired. He had a withdrawn look to him." The officer arrived at this conclusion because "he would not make eye contact with us." To Mangelson this failure "substantiated what we already suspected that the driver may be impaired." Mangelson added, "[i]t is hard to describe a person that is under the influence, but a police officer that has been a police officer for a number of years can look at a person and he can basically tell a person that is impaired or under the influence." Because he thought Mr. Lyons "might be impaired," he turned on his emergency signal and pulled the truck to the side of the road.

Mangelson walked to the driver's window and asked defendant for his license and the registration of the vehicle. Mr. Lyons produced his license but told Mangelson the truck belonged to defendant's passenger, Robert Langworthy. In response to Mangelson's inquiry, Mr. Langworthy said the registration was in the back of the truck. While following Mr. Langworthy to the back of the truck, Mangelson noticed the "odor of marijuana was about the vehicle." When Langworthy dropped the tailgate to retrieve the vehicle registration, Mangelson saw a "plywood partition" behind which he eventually found about forty-three pounds of marijuana.

After initially obtaining defendant's driver's license, however, Mangelson did nothing to determine whether Mr. Lyons was impaired. He asked no questions about drinking or lack of sleep; administered no roadside sobriety tests; did not request the defendant submit to blood, breath, or urine tests; and issued no citation for driving while impaired. Moreover, he noticed no smell of alcohol on defendant's breath and observed nothing about his person indicating he was impaired in any way. Mangelson explained he did none of these things because the situation "went from a suspected DUI to a second degree felony. So there was no need to pursue that."

During a hearing to suppress the marijuana, Mangelson made several pertinent admissions on cross-examination. He acknowledged in his experience "entirely innocent" drivers would react to the presence of a police car by "keeping their eyes on the road." He recognized that doing so was not unusual. He agreed "very few" people drive on the interstate without "some weaving" in their lane of traffic and admitted that defendant's "weaving" violated no Utah law. He also conceded that he was unable to articulate any specific reason for believing defendant was impaired and merely relied upon his "sixth sense as an experienced highway patrolman." When pressed, however, Mangelson contended the fact that persuaded him was the defendant's refusal to "make eye contact with us."

Mangelson said this unwillingness to look at the officers was "like a kid that has, for example, stolen a cookie out of the cookie jar and you come home and you know the cookies are gone and you know he took them but he won't look at you." Nonetheless, Mangelson admitted Mr. Lyons' demeanor would have been no different had he been "in deep thought."

On the basis of this evidence, the magistrate judge recommended the district court conclude the stop was not pretextual. In making this recommendation, the magistrate judge relied heavily upon Mangelson's twenty-six years' experience which, the magistrate judge concluded, enabled Mangelson to determine the weaving and defendant's failure to make eye contact meant he was impaired. The district court adopted the recommendation, and this appeal was taken...

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