U.S.A v. Mccarty

• Decision Date: 21 July 2010
• Docket Number: No. 09-2977.,09-2977.
• Citation: 612 F.3d 1020
• Parties: UNITED STATES of America, Appellee,v.Jonathan McCARTY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

612 F.3d 1020

UNITED STATES of America, Appellee,v.Jonathan McCARTY, Appellant.

No. 09-2977.

United States Court of Appeals Eighth Circuit.

Submitted: May 14, 2010.

Filed: July 21, 2010.

COPYRIGHT MATERIAL OMITTED

Hunter MacDonald, Seattle, WA, for appellant.

Eric D. Kelderman, AUSA, argued, Pierre, SD, Mark Alexander Vargo, I, AUSA, on the brief, Rapid City, SD, for appellee.

Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.

WOLLMAN, Circuit Judge.

Jonathan McCarty entered a conditional plea of guilty to possession of a controlled substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c). On appeal, McCarty contends that the district court ¹ erred in failing to grant his motion to suppress evidence. We affirm.

I.

At approximately 5:30 p.m. on March 7, 2008, Trooper Matt Oxner of the South Dakota Highway Patrol stopped McCarty for speeding as he was driving on Interstate 90 near Rapid City, South Dakota. After asking McCarty for his driver's license and the vehicle's registration, Oxner asked McCarty to sit in the front passenger's seat of the patrol car during the remainder of the stop.

While McCarty sat in the patrol car, Oxner explained the reason for the stop and engaged McCarty in a discussion about his travel itinerary. Oxner said that he was going to issue McCarty a warning and then, while waiting for verification of McCarty's documents, asked McCarty if he had any drugs in the car. This line of questioning made McCarty very nervous, whereupon Oxner encouraged him to be honest about what was in the car. McCarty admitted that there was a small quantity of marijuana-the butt of a marijuana cigarette-in the center console. Oxner handcuffed McCarty and found the cigarette where McCarty said it would be. Oxner then searched the entire vehicle and noticed markings on the underside of the gas tank, suggesting to him that the tank had been removed.

Oxner transported McCarty and his vehicle to a Highway Patrol garage. The gas tank was removed and fourteen vacuum-sealed packages containing 5.489 kilograms of methylenedioxymethamphetamine (a.k.a. “ecstasy”) were found inside. At approximately 8:40 p.m., Agent Jeff Goble of the South Dakota Division of Criminal Investigation arrived at the garage to assist the investigation. Goble read McCarty his Miranda rights and proceeded to question him. McCarty admitted to smoking marijuana shortly before he began his trip.

McCarty was indicted on one count of possession of a controlled substance with intent to distribute. He moved to suppress his statements to Oxner during the traffic stop and afterwards, as well as his statements to Goble at the Highway Patrol garage. He also moved to suppress the physical evidence derived from the traffic stop, contending that there was not probable cause to search the vehicle, that the stop was improperly extended, and that the search was unduly invasive.

At the suppression hearing, Oxner and Goble testified as to the circumstances of McCarty's arrest, as sketched above. Oxner explained why he expanded his investigation beyond the initial traffic stop: McCarty stated that he was driving one-way from Seattle to Atlanta, a known drug route; McCarty had driven non-stop from Seattle and planned to maintain a very fast pace, having rented the car for only three days; McCarty was driving a rental car with out-of-state plates; the cost of the one-way car rental exceeded Oxner's estimate of round-trip airfare; and remnants of fast-food and a small duffel bag were visible in the vehicle. McCarty testified that these factors, in light of his experiences as a highway patrolman who had interdicted numerous drug couriers traveling the same route, gave rise to a suspicion that McCarty was transporting drugs.

Seeking to dispel or verify this suspicion, Oxner asked McCarty about the presence of drugs in the vehicle. In response, McCarty became increasingly nervous, averred that he was a “good guy,” laughed, and said that there were no drugs in the vehicle. Oxner stated that a canine unit could be used to detect drugs and then asked about the presence of specific types of drugs in the vehicle. In response to Oxner's questions about marijuana, McCarty broke eye contact and lowered his voice, whereupon Oxner asked McCarty if he was positive about there being no marijuana in the vehicle. McCarty's nervousness escalated rapidly, with his heart rate increasing to the point at which his pulse was visible beneath his shirt. Oxner commented on McCarty's visible pulse and increasing signs of nervousness and encouraged him to be “honest” about whether there were drugs in the vehicle. Oxner said that if McCarty was forthright, Oxner would be as lenient with him as possible. At that point, McCarty admitted to the presence of a “roach,” that is, a used marijuana cigarette, in the vehicle. Oxner handcuffed McCarty and, as stated above, found the marijuana cigarette at the place specified by McCarty.

Based upon this discovery, Oxner believed that he had probable cause to search the entire vehicle for additional contraband. Upon inspection of the underside of the vehicle, Oxner became suspicious that the gas tank had been “messed with” and contained contraband, testifying that:

With this vehicle, the gas tank had scratch marks on it.... [T]here was mud underneath the undercarriage of the Durango. On the gas tank it was fairly clean. You could see scratch marks all the way across the gas tank. You could see the two gas tank straps that hold the tank up itself were clean; you could see smudge marks on them. On the two sides of the straps are where the bolts secure the straps to the gas tank; they [we]re very, very tooled.

Suppression Hr'g Tr. at 35-36.

The magistrate judge recommended that the statements made to Trooper Oxner and Agent Goble be admitted. The magistrate judge also recommended that the physical evidence seized from the vehicle be admitted, because the pre-arrest detention did not constitute a custodial interrogation, Oxner was justified in expanding the traffic stop, McCarty's admission of having some marijuana in the vehicle established probable cause to search the entire vehicle, and the search of the gas tank was not unduly invasive. The district court adopted the magistrate judge's report and recommendation in full and denied the motion to suppress.

Pursuant to a conditional plea agreement, McCarty pleaded guilty. McCarty's plea agreement included a waiver of his right to appeal, which provided as follows:

The Defendant hereby waives all defenses and his right to appeal any non-jurisdictional issues. The parties agree that excluded from this waiver is the Defendant's right to appeal: (1) any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or an upward variance pursuant to 18 U.S.C. § 3553(a); and (2) the adverse determinations of the following pretrial motions: (a) the District Court's denial of the defendant's motion to suppress dated October 7, 2008.

R. 51-52. During McCarty's plea colloquy, the district court asked him if he understood that he was waiving his right to appeal, except for the two issues reserved by the plea agreement. McCarty responded affirmatively. The district court sentenced McCarty to 121 months' imprisonment, following which McCarty filed this appeal.

II.

We review de novo the district court's conclusions of law regarding a denial of a motion to suppress evidence. United States v. Marquez, 605 F.3d 604, 609 (8th Cir.2010). We review for clear error the district court's findings of fact. Id.

A. Expansion of the Traffic Stop

McCarty argues that Oxner lacked an objectively reasonable basis for expanding the traffic stop into a drug trafficking investigation. During a lawful traffic stop, an officer may conduct a reasonable investigation. United States v. Ward, 484 F.3d 1059, 1061 (8th Cir.2007). A reasonable investigation includes asking the driver for his license and registration, requesting the driver to sit in the patrol car to answer questions, verifying the driver's identification and related documents, and asking questions about the driver's itinerary. Id. at 1061-62; United States v. Jones, 269 F.3d 919, 924-25 (8th Cir.2001). The scope of a traffic stop can be expanded if the driver's answers and behavior “support suspicions unrelated to the traffic offense.” Ward, 484 F.3d at 1062. “To continue to detain a vehicle's occupants after the initial stop is completed, the officer must have been aware of particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.” United States v. Shafer, 608 F.3d 1056, 1062 (8th Cir.2010) (internal punctuation omitted). “Whether an officer has reasonable suspicion to expand the scope of a traffic stop is determined by looking at the totality of the circumstances, in light of the officer's experience.” Id. (quoting United States v. Gill, 513 F.3d 836, 844 (8th Cir.2008)).

Oxner's expansion of the traffic stop was justified. As recounted above, Oxner initially asked McCarty basic background questions about his itinerary. Based upon a number of factors and in light of his experience, Oxner became suspicious that McCarty was transporting contraband. Oxner was aware of particularized, objective facts that gave rise to his suspicion that a crime was...