U.S. v. Mason
| Decision Date | 08 December 2010 |
| Docket Number | No. 07-4900,07-4900 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Victor Eugene MASON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Jeffrey Michael Brandt, Robinson & Brandt, PSC, Covington, Kentucky, for Appellant. Jeffrey Mikell Johnson, Office of the United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: W. Walter Wilkins, United States Attorney, J.D. Rowell, Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee.
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge NIEMEYER wrote the majority opinion, in which Judge SHEDD joined. Judge GREGORY wrote a dissenting opinion.
After completing a traffic stop of Victor Mason on Interstate 20, between Atlanta and South Carolina, with the issuance of a warning ticket, the Georgia state trooper making the stop extended it for several minutes, based on the trooper's suspicion of criminal activity, to allow a drug-detection dog to sniff Mason's vehicle. The dog alerted multiple times to the presence of a narcotics odor and then jumped into the car through an open window and sat on the back seat of Mason's vehicle, again alerting to the presence of a narcotics odor. A search of the vehicle thereafter uncovered approximately 10 kilograms of cocaine, for which Mason was convicted of conspiracy to violate 21 U.S.C. § 841(a) and sentenced to a mandatory term of life imprisonment, under 21 U.S.C. § 841(b)(1)(A).
Mason's appeal challenges the constitutionality of the search on the ground that the trooper impermissibly extended the traffic stop to obtain probable cause to search the vehicle, as well as the enhancement of his sentence by reliance on two allegedly invalid previous drug-traffickingconvictions. For the reasons that follow, we affirm.
At approximately 11:40 a.m. on August 12, 2005, Georgia State Patrol Trooper Blake Swicord observed Mason driving eastbound on Interstate 20 in Morgan County, Georgia, in a vehicle that had, in Trooper Swicord's opinion, excessively tinted windows. Swicord activated his patrol car's blue lights to pull Mason over, which automatically activated audio and video recording equipment, capturing the traffic stop on tape.
Trooper Swicord testified that after he turned on his blue lights, it took Mason "a while to pull over," which "was not normal," and that he observed Mason having a conversation with his passenger, which "raised [his] suspicion." After Mason pulled over and lowered his window, Trooper Swicord noticed, as he approached the vehicle, that Mason was nervous and sweating. He also immediately smelled an "extreme odor" of air freshener coming from the vehicle. Officer Swicord testified at the suppression hearing that the odor was "absolutely abnormal" and strong enough to give an occupant of the car a headache. Swicord also observed that there was only one key on the key ring and that there was no luggage in the interior of the vehicle. He saw on the back seat the newspaper for that day (recognizing Tiger Woods' picture) with a label on it that said "Radisson Hotel." Swicord testified that these factors led him to believe that Mason and his passenger, Nathaniel Govan, were on a "turn-around" trip to Atlanta, a known source city for drugs. Swicord also testified that Inter state 20 was common route for drug traffickers.
After Mason provided his driver's license and the vehicle's registration, Trooper Swicord asked him to step out of the vehicle. When he asked Mason who owned the car, Mason replied that his daughter did. Swicord then asked Mason his daughter's name and the name of his passenger, as well as the purpose for their journey. Mason told Swicord that he had driven to Atlanta to see his uncle about getting a deed. Swicord then walked to the passenger-side window and asked Govan, who had remained in the vehicle, the reason for their trip. Govan told a different story, stating that they had driven to see a friend, giving two different names. Swicord's questioning of Mason lasted just over two minutes (11:41:20 a.m. to 11:43:34 a.m.) and his questioning of Govan lasted just over one minute (11:43:40 a.m. to 11:44:50 a.m.). Because the two stories conflicted and the newspaper indicated that Mason and Govan had stayed in a motel, Trooper Swicord concluded that both were "lying about their itinerary and were involved in criminal activity."
Trooper Swicord returned to his patrol car, where he radioed Sergeant Michael Kitchens, a member of the K-9 unit, requesting that Kitchens come to the scene with a drug-detection dog. He then exited to test the tint of the windows of Mason's vehicle and determined that they were in fact illegally tinted. Swicord returned to the patrol car to write a warning ticket regarding the illegal tint and to relay to his dispatcher Mason's and Govan's names, as well as insurance and registration information. This practice was routinely followed as a part of a traffic stop to verify information about the vehicle and to check for any outstanding warrants.
Swicord again exited his patrol car and handed the warning ticket to Mason regarding the illegal tint. This occurred at 11:50:45 a.m., less than 11 minutes after Swicord first activated his blue lights. At this point, Swicord had finished all thesteps necessary to complete the traffic stop.
Trooper Swicord then asked Mason for consent to search his vehicle, and Mason refused. Swicord informed Mason that he believed that there were drugs in the car and that he was going to have a dog sniff the car to determine whether drugs were inside. Swicord ordered Govan out of the car, by which point in time Sergeant Kitchens had arrived. Sergeant Kitchens took his drug-detection dog on a leash around the outside of Mason's vehicle, and on the first lap around the vehicle (at 11:55:02 a.m.), the dog alerted at both the passenger-side and driver-side doors. On a second lap around the vehicle, the dog jumped into the vehicle through the open driver-side window and gave a positive indication of the presence of drugs by pointing her nose next to the speaker in the back seat and sitting down on the seat.
After Sergeant Kitchens coaxed the dog out of the car, Trooper Swicord searched the vehicle. In the trunk, he found approximately 10 kilograms of cocaine powder in a black gym bag.
Following Mason's indictment for conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1),* Mason filed a motion to suppress the evidence found in the vehicle, contending that his Fourth Amendment rights were violated because (1) Trooper Swicord lacked reasonable suspicion to detain him beyond completion of the traffic stop and (2) the dog's entry into his vehicle was not supported by probable cause.
The district court denied Mason's motion to suppress after a suppression hearing, at which Trooper Swicord and Sergeant Kitchens testified. The court found that Swicord had reasonable suspicion of drug activity when he had finished processing the warning ticket for the tint violation, justifying his extending the traffic stop. The court also found that the dog alerted to drugs on the outside of the car before jumping into the vehicle on its own, without any command from the officers. The court ruled that the dog's positive indication by entry into the car provided probable cause to justify the search. The court also ruled that when an officer handling a dog does not prompt the dog's entrance into the vehicle, the dog's entrance in response to the "plain smell" of narcotics does not violate the Fourth Amendment.
Following Mason's conviction by a jury, the district court sentenced him to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A), based on the verdict finding him guilty of trafficking in five kilograms or more of cocaine and on his prior felony drug convictions. To satisfy the statutory requirement of at least two prior convictions, the government relied on (1) a conviction in the U.S. District Court for the District of South Carolina on January 25, 1993, for possession of cocaine base with intent to distribute it; (2) a conviction in a Richland County, South Carolina court on February 9, 1988, for possession of cocaine with intent to distribute it; and (3) a conviction in an Orangeburg, South Carolina court on July 22, 1988, for possession of cocaine with intent to distribute it. Mason objected to the use of the two prior state convictions, contending that he did not have an attorney when he pleaded guilty to those charges, and he submitted documents purportedly demonstrating his lack of representation. At the sentencinghearing, the district court found that the documentation did not demonstrate that Mason's prior convictions were uncounseled. Rather, the court found that the evidence indicated beyond a reasonable doubt that on both occasions Mason had the assistance of counsel. Accordingly, the court imposed the mandatory life sentence under § 841(b)(1)(A).
From the court's judgment, Mason filed this appeal, challenging the denial of his suppression motion and the enhancement of his sentence.
Mason contends principally that the district court erred in denying his motion to suppress. He argues (1) that "the police lacked reasonable articulable suspicion to detain him beyond the time necessary to issue him a warning for his window tint," and (2) that even if his continued detention was lawful due to reasonable suspicion, his Fourth Amendment rights were violated when the dog entered the car, either because Sergeant Kitchens opened the door to let the dog in or because probable cause to justify the entry was lacking.
With respect to Mason's contention that reasonable suspicion was lacking to detain him after he was issued a warning ticket for the illegal tint, the government acknowledges that...
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