U.S. v. Parker

• Decision Date: 18 November 2009
• Docket Number: No. 08-2883.,08-2883.
• Parties: UNITED STATES of America, Appellee, v. Marzett L. PARKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

587 F.3d 871

UNITED STATES of America, Appellee, v. Marzett L. PARKER, Appellant.

No. 08-2883.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2009.

Filed: November 18, 2009.

Donald R. Cooley, Springfield, MO, argued, for appellant.

Randall D. Eggert, Asst. U.S. Atty., Springfield, MO, argued (Matt J. Whitworth, Acting U.S. Atty., Kansas City, MO, on the brief), for appellee.

Before RILEY, BENTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Marzett L. Parker appeals the district court's¹ denial of his motion to suppress evidence obtained during a vehicle search, motion for a continuance or exclusion of identification evidence, and motion for acquittal. For the reasons set forth below, we affirm.

I.

On March 30, 2006, at approximately 8:00 p.m., T.E. Wilkins, a Missouri State Highway Patrol Commercial Motor Vehicle officer, performed a random check² on a truck after it crossed the scales of the Newton County, Missouri, weigh station. Parker was the driver of the truck, which was pulling a trailer containing three vehicles: a 2001 Ford Excursion, a 1995 Nissan Quest, and a 2000 Chevrolet Silverado. The truck had California license plates and bore the company name "P.B. Auto Transport, Inc." Officer Wilkins conducted a Level 1 inspection—a review of Parker's logbook, bills of lading, insurance, and license—pursuant to his authority under the North American Standard Inspection Program's (NASIP)³ inspection regulations. See Commercial Vehicle Safety Alliance, North American Standard Inspection Levels, http://www.cvsa.org/programs/nas_levels.aspx (last visited Oct. 5, 2009); see also 49 C.F.R. § 350.105.

Although Parker was the registered owner of both the truck and the trailer, he was not the registered owner of any of the vehicles he was transporting. Parker had a current International Fuel Tax Agreement, yet his commercial license was expired. Officer Wilkins also discovered that Parker's logbook was not up to date, and the last entry was dated March 28, 2006, two days prior to the stop. Therefore, the logbook did not comply with regulatory standards requiring accurate and updated records of driving activity.⁴ Officer Wilkins provided Parker an opportunity to update his logbook and made copies of Parker's log sheets. Officer Wilkins asked if Parker had a co-driver, and Parker identified Odell Edwards, who was also in the truck.

Further into the stop, Officer Wilkins discovered discrepancies between Parker's statements and his updated logbook. Parker's bills of lading for the vehicles indicated he picked up the vehicles between March 14 and 20, 2006, yet his logbook indicated he did not leave on this trip from California until March 28, 2006. Parker told Officer Wilkins that he was in a hurry to deliver the vehicles because people were waiting on him, and that because of this rush, he had a hard time keeping up with his logbooks. However, Officer Wilkins became suspicious of these statements given the eight-day gap between Parker's initial pick up of the vehicles and when he began the trip.

The discrepancy in Parker's statements and his out-of-date logbook led Officer Wilkins to conduct a NASIP Level II walk-around inspection⁵ of Parker's truck. Officer Wilkins looked through a window of the Ford Excursion and observed a large cardboard box in the back seat of the vehicle. Based on his experience, Officer Wilkins thought the box suspicious as it was unusual for a transported vehicle to contain items inside. The suspicious box, coupled with the discrepancy between Parker's logbooks and statements, caused Officer Wilkins and his supervisor, Officer Michael Lee, to contact a Missouri highway trooper for a further investigation.

Officer Wilkins again requested that Parker update his logbook, yet Parker continued to write down inaccurate information, including filling out the logbook for times in the future. In the meantime, the officers discovered that Edwards, the co-driver, had a suspended license. Officer Wilkins issued a citation to Parker for his inaccurate logbooks, and took his truck out of service for ten hours.⁶ Although Parker was not allowed to drive his truck or any other commercial vehicle while his truck was taken out of service, the officers did not force Parker to remain at the weigh station and he was free to leave by any other means.

At approximately 10:00 p.m., two hours after the initial stop, Troopers Thomas Mitchell and Terry Moreland of the Missouri State Highway Patrol arrived at the scene and questioned both Edwards and Parker. Edwards indicated that they were hauling vehicles from Fontana, California, to Ohio and Pennsylvania for the vehicle's owners. Parker gave the same shipment information, but he indicated that the vehicles were auction vehicles. Parker also stated that the week-long gap between first picking up the vehicles and leaving California was due to personal problems. When questioned about the box in the Ford Excursion, Parker denied knowledge of its presence. After a criminal history check, it was discovered that both Parker and Edwards had prior criminal convictions.

Upon Trooper Mitchell's inquiry, Parker gave his verbal consent to search the three vehicles he was hauling, providing Trooper Mitchell with the keys to each. After opening the door to the Ford Excursion, Trooper Mitchell noticed a strong chemical odor and multiple air fresheners. Because he was unfamiliar with the odor, Trooper Mitchell contacted the Newton County Sheriff's Office for assistance. The office's canine unit arrived and the dog alerted to the presence of narcotics in both the Ford Excursion and the Nissan Quest. Trooper Mitchell found two boxes in the Excursion labeled "Consolidated Can Products," inside of which he discovered a total of 40 one-gallon cans labeled "March 25, 2006." The cans contained a quantity of phencyclidine (PCP) with a combined street value of $4 million. Once Officer Mitchell discovered the cans, Parker again changed his story regarding his travel schedule, claiming that he had not actually picked up the Ford Excursion until March 27 or 28, 2006. During the search of the Nissan Quest, Trooper Mitchell became suspicious of an insert he discovered in the glove compartment. After pulling the insert, he found twelve kilograms of cocaine, with a street value of $1.2 million.

Trooper Moreland immediately arrested Parker and Edwards and read them their Miranda⁷ rights. Edwards and Parker were then taken to the Newton County Sheriff's Department and the vehicles were towed for further inspection. On April 4, 2006, DEA Special Agent Sean Henry searched the truck and the three vehicles again, pursuant to a valid search warrant. Agent Henry discovered additional log sheets, various paperwork, bills of lading, receipts that tracked when Parker had actually picked up the vehicles and started his trip, and several documents containing the name "Alphonso Foster." Agent Henry also found five cell phones, one of which was owned by a "Herman Michelle," and two of which had been contacted by a Kim Walker.

On April 20, 2006, Parker and Edwards were indicted for possession with intent to distribute one kilogram or more of PCP, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iv), and possession with intent to distribute five kilograms or more of a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)(II). Parker filed a motion to suppress evidence seized from the vehicle search, and an evidentiary hearing was held before a United States Magistrate Judge.⁸

On August 14, 2007, the magistrate judge issued a Report and Recommendation ("R & R"), recommending denial of the motion to suppress. On November 9, 2007, the district court adopted the R & R and denied the motion to suppress. On December 13, 2007, a federal grand jury issued a superceding indictment, adding two defendants—Kim Walker and Alphonso Foster—and an additional charge of conspiracy to distribute in excess of one kilogram of PCP, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(IV). This added charge was based on a large PCP production and distribution conspiracy which law enforcement had discovered.

During the jury trial, Cindon Young testified that he was a PCP dealer and an associate of Walker and Foster, both of whom he claimed were PCP manufacturers. Young stated that he had been involved in a plan to transport PCP from California to Philadelphia, where it would then be distributed. Young also testified that Walker and Foster manufactured the PCP and then planned to send the PCP to Philadelphia on a truck driven by a driver named "Herm." Young testified that he had met Herm through Walker, and identified Parker as Herm. The PCP was to be delivered to Armando Mines, who would in turn sell it in Philadelphia with Young's help. Mines testified that in 2004, he had met with Young and "Plex" in Los Angeles, to discuss a plan to transport PCP to Philadelphia for Mines to later distribute. Mines identified the Plex he met in Los Angeles as Walker. Mines stated that he eventually agreed to participate in the PCP distribution scheme.

Following the trial, on February 27, 2008, the jury convicted Parker on all three charges. The court sentenced Parker to three concurrent 324-month sentences. Edwards, however, was acquitted.

II.

Parker claims that the district court erred in denying his motion to suppress, arguing that because he was illegally detained when he consented to the search of the transported vehicles, such consent was involuntary. "[W]hen reviewing a district court's denial of a suppression motion, we review for clear error the court's factual findings and review de novo whether the Fourth Amendment was violated." United States v. Rodriguez, 484 F.3d 1006, 1010 (8th Cir.), cert. denied, 552 U.S. 890, 128 S.Ct. 316, 169 L.Ed.2d 152 (2007). We find that the district court did not err in finding there was no Fourth Amendment violation...