U.S. v. Lyons
| Decision Date | 18 December 2007 |
| Docket Number | No. 06-3111.,06-3111. |
| Citation | 510 F.3d 1225 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenneth LYONS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Eric F. Melgren, United States Attorney, and James A. Brown, Assistant United States Attorney, Topeka, KS, for Plaintiff-Appellee.
Michael G. Highland, Bonner Springs, KS, for Defendant-Appellant.
Before O'BRIEN, HOLLOWAY and HOLMES, Circuit Judges.
This case involves a vehicle stop, which led to the discovery of fifty-one pounds of cocaine hidden in the spare tire. Kenneth Lyons appeals from the district court's denial of his motion to dismiss the indictment for want of a speedy trial and denial of his motion to suppress evidence. In his plea agreement, he waived his right to appeal from the resolution of the speedy trial issue and therefore we dismiss that portion of the appeal. His suppression issues (justification for the stop, continued detention after the stop, voluntariness of his consent to search and probable cause to search) are properly presented. We affirm with respect to the suppression issues.
On December 11, 2003, at approximately 10:00 p.m., Kansas Highway Patrol Trooper Jarett Ranieri was parked in the median of Interstate 70 (I-70) in Greary County, Kansas. His vehicle faced Eastbound I-70. Trooper Andrew Dean was parked next to Ranieri. Both troopers had their vehicles' headlights on; there were no other lights on the roadway. Because Eastbound I-70 sits higher than the median, Ranieri and Dean were parked on an incline, causing their vehicles' headlights to illuminate the undercarriages of passing vehicles.
While parked in the median, Ranieri noticed a white Chevy Trailblazer. The body of the vehicle was dirty and salty but the spare tire attached to its undercarriage was clean and "didn't have a spec of road film on it at all." (R. Vol. 3 at 16.) Based on the difference in weather conditions between that day (clear and dry) and the previous one (snowy/rainy), Ranieri suspected the spare tire had been placed on the vehicle that day. He also suspected the tire might contain contraband because in his experience spare tires are frequently used to hide drugs. Ranieri decided to follow the vehicle and run its license plate number.
Once Ranieri caught up with the vehicle, he noticed the license plate was so dirty it was unreadable. Moving closer, he was able to read the plate but not the expiration sticker. Ranieri also noticed the spare tire was hanging lower than normal. Because the dirty plate and tag violated Kansas traffic law (Kan.Stat.Ann. § 8-133) and based on his suspicions regarding the spare tire, Ranieri decided to pull the vehicle over. He activated his emergency lights.
Once the vehicle pulled over, Ranieri walked up to it from behind and wiped away the dirt covering the expiration tag and the name of the issuing state (Virginia) with his fingers. He then approached the driver's side window; Lyons was sitting in the driver's seat. Ranieri told Lyons that he had stopped his vehicle because its expiration tag was covered with dirt and unreadable and that he had cleaned the tag. Lyons and his passenger, Letty Sierra De Maldonado, informed Ranieri they had traveled to Denver, Colorado, for vacation and were heading back to Fort Lauderdale, Florida. Ranieri asked for Lyons' driver's license and the vehicle's registration. Lyons gave him his Florida driver's license and the vehicle's rental agreement. While standing at the driver's side window, Ranieri noticed two cellphones (which in his experience are used by drug traffickers to communicate) and a radar detector; he also smelt air freshener (which in his experience is often used to mask the smell of drugs).
On the way back to his patrol car to verify Lyons' driver's license, Ranieri took a closer look at the spare tire, which was illuminated by his patrol vehicle's headlights. He noticed the rim was salty and dirty but the actual tire was clean. He also observed fingerprints on the tire and tool marks where the rim and tire meet. This raised Ranieri's suspicions that the tire had been placed on the rim that day. Ranieri further noticed the tire was a different brand and larger than the four tires on the vehicle.
Once in his patrol vehicle, Ranieri performed a criminal history check on Lyons and filled out a warning ticket. Ranieri learned Lyons had a criminal history involving drug possession and trafficking. He also noticed the rental agreement was two weeks overdue. While Ranieri was in his patrol vehicle, Trooper Dean approached. Ranieri informed him he believed the spare tire contained contraband and told him to look at the tire. Dean complied and confirmed Ranieri's suspicions that the tire had been removed from the vehicle and there was something in it.
Ranieri returned to the driver's side window and handed Lyons his driver's license, the rental agreement and the warning ticket. Once he returned the paperwork, Ranieri thanked Lyons and De Maldonado for their time and took a step back from the vehicle. De Maldonado then asked Ranieri where the nearest car wash was located; Ranieri took a step toward the vehicle and told them the closest car wash was in Topeka. Ranieri stepped back from the car again. The following discussion ensued:
Ranieri: I was just going to ask you before you take off, I noticed you kind of have a history ... of drugs and stuff, do you ... have anything illegal in here ....
Lyons: No.
Ranieri: No type of illegal drugs or anything?
Lyons: No.
Ranieri: Can I look in, can I look in the back?
Lyons/De Maldonado: [Inaudible]
Ranieri: I was kind of wondering about that rental agreement, is that an old one? Or is it just....
Lyons: I had it extended because . . . .
Ranieri: Oh, did you call and get it extended? Okay, well that makes sense then. But you wouldn't have anything illegal ... in here ... ?
Lyons: No, not at all, sir.
Ranieri: Any type of drugs, cocaine, marijuana, or anything like that?
Lyons: No. Ranieri: Okay, can I look in the back, would you mind if I looked in the back?
Lyons: Go ahead.
Ranieri: Okay.
(R. Supp. Vol. II at 22:08:12-22:08:47.)
Ranieri went to the back of the vehicle to look for the tools to lower the spare tire. As he was searching for the tools, he discovered four cans of Fix-A-Flat Tire, which further raised his suspicions regarding the spare tire because he had never seen Fix-A-Flat Tire in a rental vehicle. That led him to believe Lyons and De Maldonado were concerned about getting a flat tire because the spare tire was inoperable. Unsuccessful in finding the tools to lower the spare tire, Ranieri retrieved a stethoscope from his patrol vehicle. He performed an "echo test" on the tire with the stethoscope, which involves hitting it with an object and noting the sound. (R. Vol. 3 at 34.) A normal tire will project a loud ring when hit whereas a tire with something in it will project a low thud. When Ranieri hit the tire with his ASP1 baton, he heard a low thud.
Ranieri then asked Lyons if he knew where the tools to release the spare tire were located. Lyons stated he did not know. Ranieri eventually discovered the tools under the rear bench seat. Using the tools, Ranieri lowered the spare tire. When he did so the vehicle rose up indicating the tire was very heavy, reinforcing Ranieri's suspicion that drugs were hidden inside. Once the tire was lowered Ranieri pulled it from under the vehicle. It was extraordinarily heavy. Using a knife, Ranieri cut the tire open, discovering fifty-one pounds of cocaine.
The traffic stop was captured by the video camera in Ranieri's patrol vehicle. Although normally the camera begins recording when the vehicle's emergency lights are activated, the camera's videotape was stopped on another recorded traffic stop Ranieri had been watching before pulling over Lyons' vehicle. As a result, to avoid taping over the other traffic stop, the camera automatically fast-forwarded to a clean portion of tape before beginning to record in this case. Because of that delay the camera did not begin recording until after Ranieri was already at the driver's side window—after he had cleaned the license plate and expiration tag. The record is confounded by another problem. Although Ranieri wears a microphone, he forgot to activate it until he approached the vehicle the second time to return Lyons' paperwork. Therefore, the videotape has no audio until this time.
Lyons was indicted for possession with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2 (Count I) and conspiracy to possess with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 and 18 U.S.C. § 2 (Count II). He filed a motion to dismiss the indictment, arguing the allegedly prejudicial delay between the filing of the indictment and the time he made his initial appearance violated his speedy trial rights. He also filed a motion to suppress evidence, claiming the stop of his vehicle, his subsequent detention and the search of his vehicle and its spare tire were all unlawful under the Fourth Amendment.
The district court held a hearing on Lyons' motions; Ranieri was the only witness. The parties also submitted the videotape of the traffic stop and pictures of Lyons' vehicle taken after Lyons' arrest. The court denied both motions. Thereafter, Lyons pled guilty to Count II and was sentenced to 151 months imprisonment.
Lyons complains of the district court's denials of his motions to dismiss the indictment and suppress evidence.
Lyons was arrested after the traffic stop and indicted on December 17, 2003. He posted bond and then absconded. Lyons was re-arrested in Florida on September 18, 2004, transported to Kansas on October 29, 2004, but was not...
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