U.S. v. McSwain

• Decision Date: 11 July 1994
• Docket Number: No. 93-4198,93-4198
• Citation: 29 F.3d 558
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick Nolan McSWAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 558

29 F.3d 558

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Nolan McSWAIN, Defendant-Appellant.

No. 93-4198.

United States Court of Appeals,

Tenth Circuit.

July 11, 1994.

G. Fred Metos, of McCaughey & Metos, Salt Lake City, UT, for defendant-appellant.

Bruce C. Lubeck (Scott M. Matheson, Jr., U.S. Atty., was with him on the brief), Asst. U.S. Atty., Salt Lake City, UT, for plaintiff-appellee.

Before TACHA and McKAY, Circuit Judges, and SHADUR, ^* District Judge.

TACHA, Circuit Judge.

Defendant-appellant Patrick Nolan McSwain entered a conditional guilty plea under Fed.R.Crim.P. 11(a)(2) to possession of a controlled substance with intent to distribute, 21 U.S.C. Sec. 841(a)(1), and to carrying and using a firearm during and in relation to a drug trafficking offense, 18 U.S.C. Sec. 924(c). Mr. McSwain now brings this appeal challenging the district court's denial of his motion to suppress evidence obtained during a warrantless search of his vehicle. Mr. McSwain argues for suppression on the ground that he was unlawfully detained. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and reverse and remand.

I. Background

On the afternoon of June 9, 1993, Utah Highway Patrol Trooper Dennis Avery ("Trooper Avery") was patrolling eastbound Interstate 70 in Sevier County, Utah, when he noticed an approaching vehicle in his rear view mirror. The vehicle did not have a front license plate, and as it passed, Trooper Avery noticed that the vehicle did not have a rear license plate either, though it did have a temporary registration sticker posted in the rear window. Trooper Avery was unable to read the expiration date on the sticker because it appeared to be covered with reflective tape. He stopped the vehicle to verify the validity of the temporary sticker. Trooper Avery's patrol car was equipped with a video camera that recorded the stop and the ensuing conversation between Trooper Avery and the vehicle's driver, Mr. McSwain.

As Trooper Avery approached the vehicle on foot, he noticed that the temporary registration sticker was from Colorado and that the reflective tape merely was a new device used by the State of Colorado to prevent alteration of the sticker's expiration date. Trooper Avery observed that the sticker was valid and had not expired. He then approached Mr. McSwain, made a comment about the sticker, and proceeded to ask whether Mr. McSwain had just bought the vehicle and whether he was taking it for a test drive. Trooper Avery next requested identification and vehicle registration. He testified that he routinely asks for these documents upon stopping a vehicle to ensure that the driver is licensed and is the vehicle's owner. Mr. McSwain produced a Colorado registration in his name and said that he did not have a driver's license, though he provided other identification. Mr. Fisher, a passenger in the vehicle's rear seat, produced a valid driver's license. Trooper Avery then asked them where they had been and Mr. McSwain told Trooper Avery that they had been gambling in Las Vegas, Nevada. Trooper Avery, however, observed on the front seat a receipt dated June 8, 1993 (the prior day) from a Jiffy Lube in Pasadena, California.

Trooper Avery returned to his patrol car to request a computer check. He testified that he routinely runs a criminal history check on persons driving without a license and who otherwise arouse his suspicions. Dispatch informed Trooper Avery that Mr. McSwain had a suspended driver's license and a prior record for drug and gun violations and assaults.

Trooper Avery returned to the vehicle and gave back Mr. Fisher's license, Mr. McSwain's identification and the vehicle registration. Resting his arms on the driver's door, Trooper Avery inquired, "What are you doing over in Denver, is that where you live?" He then asked if they were "packing" any alcohol, firearms or drugs in the vehicle. After Mr. McSwain answered in the negative, Trooper Avery asked, "Do you mind if I look?" Mr. McSwain responded, "Go ahead." Trooper Avery said, "Why don't you step out a sec?" He then explained that, because Mr. McSwain's license had been suspended, Mr. Fisher would have to drive.

Trooper Avery searched the interior of the car, conversing with Mr. McSwain and Mr. Fisher throughout the search. Trooper Avery specifically asked and received Mr. Fisher's permission to look inside a briefcase lying in the back seat. He then retrieved the keys from the ignition and approached the rear of the vehicle. He asked Mr. McSwain and Mr. Fisher if there were just clothes in the trunk and they said, "Yes." After examining several items in the trunk, Trooper Avery found a green duffel bag. He asked who it belonged to, and Mr. McSwain said it belonged to him. Trooper Avery opened the duffel bag and discovered a set of scales, a gun and a plastic bag containing a substance which appeared to be crack cocaine. Trooper Avery asked Mr. McSwain if the substance in the bag was cocaine, and Mr. McSwain indicated that it was. Trooper Avery arrested Mr. McSwain and Mr. Fisher.

II. Discussion

Mr. McSwain argues that the evidence found in the trunk of his vehicle was the fruit of an unlawful detention and that the trial court therefore erred in denying his motion to suppress. In reviewing the denial of a motion to suppress evidence, we must accept the trial court's findings of fact unless they are clearly erroneous. United States v. Nielsen, 9 F.3d 1487, 1489 (10th Cir.1993). Additionally, we must view the evidence on appeal in the light most favorable to the government. United States v. Pena, 920 F.2d 1509, 1513 (10th Cir.1990), cert. denied 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). In examining the district court's findings, we are mindful that the credibility of the witnesses and the weight to be given the evidence together with the inferences, deductions and conclusions to be drawn from the evidence, are to be determined by the trial judge. United States v. Walraven, 892 F.2d 972, 973 (10th Cir.1989). However, the ultimate determination of reasonableness is a conclusion of law that we review de novo. United States v. Horn, 970 F.2d 728, 730 (10th Cir.1992).

A. Lawfulness of Detention

The Fourth Amendment protects against unreasonable searches and seizures. "The stopping of a vehicle and the detention of its occupants constitute a 'seizure' within the meaning of the Fourth Amendment." United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). To determine the reasonableness of such a seizure, we employ a dual inquiry: " whether the officer's action was justified at its inception, and whether [the action] was reasonably related in scope to the circumstances which justified the interference in the first place." United States v. Dewitt, 946 F.2d 1497, 1501 (10th Cir.1991) (quoting Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968)), cert. denied, --- U.S. ----, 112 S.Ct. 1233, 117 L.Ed.2d 467 (1992); see also United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) ("The scope of the detention must be carefully tailored to its underlying justification."). The first prong of this inquiry is not at issue here because Mr. McSwain concedes the propriety of the initial stop. He argues, however, that the initially valid stop evolved into an unreasonable detention. We agree.

Trooper Avery stopped Mr. McSwain for the sole purpose of ensuring the validity of the vehicle's temporary registration sticker. Once Trooper Avery approached the vehicle on foot and observed that the temporary sticker was valid and had not expired, the purpose of the stop was satisfied. Trooper Avery's further detention of the vehicle to question Mr. McSwain about his vehicle and travel itinerary and to request his license and registration exceeded the scope of the stop's underlying justification.

The government nevertheless contends that Tenth Circuit precedent entitles Trooper Avery to engage in such "minimally intrusive" conduct. Though we have held in several cases that an officer conducting a routine traffic stop may inquire about "identity and travel plans," United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.1989), and may "request a driver's license and vehicle registration, run a computer check, and issue a citation," United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988); see also United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993), these cases--cited by the government--are inapposite. They all involve situations in which the officer, at the time he or she asks questions or requests the driver's license and registration, still has some "objectively reasonable articulable suspicion" that a traffic violation "has occurred or is occurring." Soto, 988 F.2d at 1554 (speeding); see also United States v. Trimble, 986 F.2d 394 (10th Cir.1993) (expired license plate), cert. denied, --- U.S. ----, 113 S.Ct. 2943, 124 L.Ed.2d 691 (1993); Rivera, 867 F.2d at 1263 (tailgating); Guzman, 864 F.2d at 1519 (seat belt violation). Such cases stand in sharp contrast to the facts of the instant case: Trooper Avery's reasonable suspicion regarding the validity of Mr. McSwain's temporary registration sticker was completely dispelled prior to the time he questioned Mr. McSwain and requested documentation. Cf. United States v. Millan-Diaz, 975 F.2d 720, 722 (10th Cir.1992) (holding that reasonable suspicion of illegal alien smuggling was dispelled as soon as border patrol agent determined that no illegal aliens were in the vehicle). Having no "objectively reasonable articulable suspicion that illegal activity ha[d] occurred or [was] occurring," Soto, 988 F.2d at 1554, Trooper Avery's actions in questioning Mr. McSwain and requesting his license and registration exceeded the limits of a lawful investigative...