U.S.A v. Pack, No. 08-41063.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGARWOOD, Circuit
Citation612 F.3d 341
PartiesUNITED STATES of America, Plaintiff-Appellee,v.Kevin Andrew PACK, II, Defendant-Appellant.
Docket NumberNo. 08-41063.
Decision Date15 July 2010

612 F.3d 341

UNITED STATES of America, Plaintiff-Appellee,
v.
Kevin Andrew PACK, II, Defendant-Appellant.

No. 08-41063.

United States Court of Appeals,
Fifth Circuit.

July 15, 2010.


612 F.3d 342

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612 F.3d 343

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612 F.3d 344
Laurel Franklin Coan, Jr., Asst. U.S. Atty. (argued), Tyler, TX, for Plaintiff-Appellee.

Denise S. Benson, Asst. Fed. Public Def. (argued), Sherman, TX, Amy R. Blalock, Tyler, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas.
Before GARWOOD, DAVIS and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant, Kevin Andrew Pack II (Pack), was charged with possession with intent to distribute 17.91 pounds of marihuana in violation of 21 U.S.C. § 841(a)(1) and using, possessing, and carrying a Luger pistol during, in relation to, and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Pack filed a motion to suppress the marihuana and the pistol, arguing that this evidence was tainted by an unconstitutional detention of his person that occurred during the traffic stop and subsequent search of the vehicle in which he had been a passenger. The district court denied his motion to suppress, finding that he lacked standing to challenge the evidence. Pack entered a conditional guilty plea in which he pleaded guilty to the charge of possessing the pistol in violation of section 924(c)(1), but reserved the right to appeal the denial of his motion to suppress. Under the terms of his plea agreement, the charge of possession with intent to distribute marihuana was dismissed.

On appeal, Pack argues that he has standing to challenge the discovery of the drugs and the gun, because he has standing to contest the seizure of his person. He further argues that his motion to suppress should have been granted, because the challenged evidence was the fruit of an illegal detention that violated his Fourth Amendment rights. The Government concedes

612 F.3d 345
that he had standing to challenge the evidence, but argues that the undisputed factual record supports the denial of his motion to suppress.

For the following reasons, we affirm.

FACTS AND PROCEEDINGS BELOW

On February 26, 2006, Trooper Brian Worley (Worley) of the Texas Department of Public Safety (DPS)-a some seventeen year law enforcement officer-stopped an easterly bound vehicle bearing Indiana license plates in Hopkins County, Texas, for traveling at seventy-eight miles per hour on a portion of Interstate 30 (I-30) with a speed limit of seventy miles per hour. The driver and owner of the vehicle was Courtney Williamson (Williamson). Pack was her only passenger. The stop occurred at 8:45 a.m.1

Worley approached the passenger side of the vehicle and asked both occupants for their driver's licenses. He also requested the vehicle's registration. He noticed that Pack appeared to be extremely nervous. Pack was breathing heavily, his hands were shaking, and his carotid artery was visibly pulsing. Worley asked Williamson to accompany him back to the patrol car.

Once they were in the patrol car, Worley informed Williamson that she had been speeding and that he planned to issue her a warning. He then asked her about her travel history. She replied that she and Pack, her boyfriend, had been visiting her aunt in Houston for the last two days, because her aunt was ill.

At 8:48 a.m., Worley radioed dispatch and requested computer checks on Williamson's and Pack's licenses and criminal histories. Dispatch informed Worley that the Texas Crime Information Center's (TCIC) computer was down, so he would only be able to obtain driver's license information at that time. One minute later, dispatch informed him that Williamson's license was clear, but that Pack's had been suspended.

Leaving Williamson with the patrol car, Worley returned to Williamson's vehicle and informed Pack that his license had been suspended. Pack said that he knew about the suspension. Worley then asked Pack about the couple's travel history. Pack told Worley that he and Williamson were coming from Dallas, where they had visited friends. Pack also said that, before going to Dallas, he and Williamson had stayed with some of his relatives in San Antonio for a few days. In response to questioning by Worley, Pack said that he was not aware of any family Williamson might have had in Texas. He also said that he did not know if Williamson had any family members in Texas who were ill.

Worley later testified that he knew I-30 served as a drug trafficking corridor and that Houston and Dallas were major drug distribution centers. Worley had been in law enforcement for seventeen years. The conflicting stories told by Pack and Williamson, the fact that they were traveling along a drug trafficking corridor, and Pack's extreme nervousness led Worley to believe, based on his experience, that Pack and Williamson were involved in criminal drug activity.

At 8:51 a.m., Worley returned to the patrol car, confronted Williamson with the differences between her story and Pack's, and asked her if she had any illegal items in her vehicle. She said that she did not, but she refused to grant Worley permission to search the vehicle.

612 F.3d 346
Worley responded by calling in a canine unit. Afterwards, he continued to question Williamson, who changed her story, claiming that Pack had stayed in San Antonio while she visited her aunt in Houston. However, she could not name any of Pack's relatives in San Antonio, and she did not know her aunt's current last name, though she claimed it previously had been “Pierson.”2

Several minutes later, dispatch informed Worley that the DPS canine unit would take forty-five minutes to arrive. Worley cancelled the request and instead called in the canine unit of Hopkins County (where the stop occurred). He then returned to Williamson's vehicle and questioned Pack, who changed his story, denying that he had stayed in San Antonio and adding that he had visited someone in Houston with Williamson, though he said he did not know if the person they had visited was her aunt.

At 8:57 a.m., Worley told Pack to join Williamson in the back of the patrol car. In response to questioning about his criminal history, Pack admitted that he had been arrested in the past for theft and for fighting at school. Further questioning of the couple revealed that Williamson did not know her aunt's telephone number or home address.

At 9:02 a.m., dispatch informed Worley that the TCIC system was working again. Both records initially came back clean, but at 9:05 a.m., dispatch reported that Pack had four prior arrests for theft. At 9:09 a.m., Worley called in the license plate number of Williams's vehicle, and at 9:10 a.m. dispatch confirmed that it was registered to Williams. The canine unit arrived at 9:18 a.m., and the dog alerted to the vehicle's trunk. Worley searched the trunk and found two duffel bags containing 17.91 pounds of marijuana and a Luger pistol.

The magistrate judge's report and recommendation, and modified report and recommendation, each summarize the above stated undisputed facts in the “background” section of those respective reports.

On November 8, 2006, a grand jury indicted Pack on two counts, possession with intent to distribute 17.91 pounds of marihuana in violation of 21 U.S.C. § 841(a)(1) and using, possessing, and carrying the Luger during, in relation to, and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Pack filed a motion to suppress the marijuana and the pistol on February 19, 2008, arguing that both were the fruit of an unconstitutional seizure of his person.

A hearing on the motion to suppress was held before a magistrate judge on February 27, 2008. The only evidence presented at the hearing was the testimony of Worley and the video of the traffic stop. The magistrate judge issued a report recommending that the motion be denied on March 5, 2008. This report was withdrawn in response to objections made by Pack, and a modified report dated April 10, 2008 was issued recommending again that the motion be denied (all without any further evidentiary hearing or request for same). The magistrate judge reached this recommendation based on its conclusion that Pack lacked standing to challenge the discovery of the evidence found in the search of Williamson's vehicle. He further held that, even if Pack had standing to challenge the discovery of the evidence, Pack had not demonstrated a factual nexus between his detention and the discovery of the challenged evidence. Pack filed additional

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objections, but the district court accepted the modified report and recommendation on May 2, 2008, and denied Pack's motion to suppress.

On June 3, 2008, Pack entered a conditional guilty plea in which he reserved the right to appeal the district court's denial of his motion to suppress. On September 15, 2008, he was sentenced to sixty months of imprisonment, three years of supervised release, and a $100.00 special assessment. Pack now prosecutes his appeal.

DISCUSSION

Pack argues that the district court erred in adopting the magistrate court's modified report and recommendation, which found that Pack's motion to suppress should be denied because he lacked standing to challenge the search of Williamson's vehicle and because there was no factual nexus between his allegedly unconstitutional detention and the discovery of the challenged evidence. The Government, although it argued lack of standing below, concedes in this court that Pack had standing to challenge the evidence, asserting that Pack's standing to challenge the seizure of his person allowed him to challenge all evidentiary fruits of his seizure. However, the Government argues that we should affirm the denial of Pack's motion to suppress because the factual record establishes that Pack's detention was constitutional.3


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319 practice notes
  • United States v. Harmon, No. CR 10–1760 JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 10, 2012
    ...of direct evidence of a particular specific crime” as long as “there is reasonable suspicion of criminal activity.” United States v. Pack, 612 F.3d 341, 357 (5th Cir.2010). Likewise, to establish that reasonable suspicion exists, officers have no obligation to articulate a specific offense ......
  • Boston v. Harris Cnty., CIVIL ACTION H-11-1566
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 26, 2014
    ...elude an untrained person. U.S. v. Arvizu, 534 U.S. 266, 273 (2002), quoting U.S. v. Cortez, 449 U.S. 411 (1981). In accord, U.S. v. Pack, 612 F.3d 341, 361 (5th Cir. 2010), modified on other grounds on denial of rehearing, 622 F.3d 383 (5th Cir. 2010), cert. denied, 131 S. Ct. 620 (2010).1......
  • Kost v. Cotto, 1:19-CV-25-RP
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • May 5, 2020
    ...that caused the stop, so long as these unrelated questions do not extend the duration of the stop." United States v. Pack , 612 F.3d 341, 350 (5th Cir.), opinion modified on denial of reh'g , 622 F.3d 383 (5th Cir. 2010). Once those tasks have been completed, "or reasonably should......
  • United States v. Young, No. CR 17-0694 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 31, 2018
    ...have a particularized and objective basis for suspecting the particular person stopped of criminal activity"); United States v. Pack, 612 F.3d 341, 356 (5th Cir. 2010) ("Requiring police to have particularized facts that support a finding that ‘criminal activity may be afoot’ is d......
  • Request a trial to view additional results
317 cases
  • United States v. Harmon, No. CR 10–1760 JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 10, 2012
    ...of direct evidence of a particular specific crime” as long as “there is reasonable suspicion of criminal activity.” United States v. Pack, 612 F.3d 341, 357 (5th Cir.2010). Likewise, to establish that reasonable suspicion exists, officers have no obligation to articulate a specific offense ......
  • Boston v. Harris Cnty., CIVIL ACTION H-11-1566
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 26, 2014
    ...elude an untrained person. U.S. v. Arvizu, 534 U.S. 266, 273 (2002), quoting U.S. v. Cortez, 449 U.S. 411 (1981). In accord, U.S. v. Pack, 612 F.3d 341, 361 (5th Cir. 2010), modified on other grounds on denial of rehearing, 622 F.3d 383 (5th Cir. 2010), cert. denied, 131 S. Ct. 620 (2010).1......
  • Kost v. Cotto, 1:19-CV-25-RP
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • May 5, 2020
    ...circumstances that caused the stop, so long as these unrelated questions do not extend the duration of the stop." United States v. Pack , 612 F.3d 341, 350 (5th Cir.), opinion modified on denial of reh'g , 622 F.3d 383 (5th Cir. 2010). Once those tasks have been completed, "or reasonably sh......
  • United States v. Young, No. CR 17-0694 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 31, 2018
    ...have a particularized and objective basis for suspecting the particular person stopped of criminal activity"); United States v. Pack, 612 F.3d 341, 356 (5th Cir. 2010) ("Requiring police to have particularized facts that support a finding that ‘criminal activity may be afoot’ is different f......
  • Request a trial to view additional results

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