U.S. v. Polly

• Decision Date: 18 January 2011
• Docket Number: No. 08–6048.,08–6048.
• Citation: 630 F.3d 991
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Andrew POLLY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

630 F.3d 991

UNITED STATES of America, Plaintiff–Appellee,
v.
Andrew POLLY, Defendant–Appellant.

No. 08–6048.

United States Court of Appeals, Tenth Circuit.

Jan. 18, 2011.

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Caren I. Friedman, Santa Fe, NM, for Defendant–Appellant.Leslie M. Maye, Assistant United States Attorney (John C. Richter, United States Attorney, also on the brief), Oklahoma City, OK, for Plaintiff–Appellee.Before LUCERO, ANDERSON, and EBEL, Circuit Judges.EBEL, Circuit Judge.

Defendant Andrew Polly was arrested on March 14, 2006, after police discovered crack and powder cocaine on his person and in his vehicle. Later, police also found powder cocaine in a storage unit rented by Polly. The district court denied Polly's motions to suppress the cocaine, and Polly pled guilty. On appeal, Polly claims that (1) the district court erred in denying his

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suppression motions, (2) the district court erred in applying a sentencing enhancement for obstruction of justice, (3) he is entitled to a reduction in his sentence, and (4) his counsel was ineffective at the suppression phase of the proceedings. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the district court. We dismiss, without prejudice, Polly's ineffective assistance of counsel claim.

I. Background

On the afternoon of March 14, 2006, police were investigating KC's Garage, a vehicle repair garage in Oklahoma City, Oklahoma, for drug-trafficking activity.¹ Several patrol cars were parked next to the garage, while undercover officer Jimmy Cortez was parked across the street in an unmarked car. Cortez observed a pickup truck drive down the street in front of the garage, signal a left turn into the garage, start to turn, crossing the middle line of the street, and then, possibly because he noticed the police cars at the garage, continue down the street. Because the vehicle's driver and passenger windows were rolled down, Cortez recognized Polly as the driver. Cortez knew Polly because officers had previously conducted a controlled drug buy with Polly and suspected Polly of involvement in drug distribution with the owner of the garage. Cortez, in his unmarked car, followed Polly, and observed him speeding through a residential area. Cortez called for a marked police car to pull over Polly, and Officer Blosser did so.

As Blosser asked Polly for his driver's license and proof of insurance, Cortez pulled in behind Blosser. Cortez asked Polly if he would step out of his vehicle, and Polly did so. Cortez then asked Polly if he had any guns, drugs, or other illegal objects on his person, and Polly said that he did not. Cortez asked the same question in regard to Polly's car, and Polly stated that he did not see any reason to search the vehicle. Cortez then asked Polly if Blosser could search him so that he could be placed in the back of Blosser's car while Cortez issued him traffic citations for speeding and for crossing over the center lane line. According to Cortez, Polly responded by saying, “I don't mind.”

While patting down Polly, Blosser felt a large round object in his right front pants pocket. Blosser asked, “What is this?”, and Polly stated that he did not know. Cortez testified that he heard a crinkling noise that sounded like plastic baggies. Blosser removed the baggies from Polly's pocket, and the baggies appeared to contain crack cocaine, packaged individually in different quantities. Polly was then arrested, and in the subsequent search of Polly, the officers seized $992 in cash.

While this was taking place, Cortez noticed that residents of the area—which was a high-crime area—began coming out of their homes and were questioning the officers about the traffic stop. Out of a concern for officer safety, Cortez radioed for other officers to come to the scene at this time. Cortez asked one of the officers who then arrived to drive Polly's truck back to the police station where it could be searched. Back at the station, officers searched the vehicle and found a receipt for a U–Haul storage unit, keys for a U–Haul lock, digital scales, razor blades, latex gloves, and a shaving bag containing crack

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cocaine and cocaine powder. Officers then obtained a search warrant for the U–Haul storage unit, where they discovered cocaine powder.

Polly was indicted on three counts (for the drugs found on his person, in his vehicle, and in the storage unit, respectively) of knowingly and intentionally possessing, with intent to distribute, crack cocaine and cocaine powder, in violation of 21 U.S.C. § 841(a)(1). Polly moved to suppress the evidence from the three searches, but the district court denied his motions after an evidentiary hearing. Polly subsequently entered a plea of guilty, withdrew his guilty plea, and changed attorneys. A bench trial was set for September 17, 2007, on which date Polly, rather than begin a trial, again pled guilty to the indictment. The parties had apparently not anticipated the guilty plea, and so none of the paperwork for a guilty plea had been prepared before that day. The parties used the document Polly signed on January 4, 2007, in which he originally agreed to plead guilty, and simply modified it by adding the signature of Polly's new attorney and making some modifications to the document. The court accepted Polly's plea of guilty and the plea agreement, which preserved his right to appeal the denial of his motions to suppress, but otherwise provided a general waiver of his appeal rights.

II. DiscussionA. Motions to suppress

On appeal, Polly challenges the district court's denial of his motions to suppress the evidence discovered in the searches of his person and his truck. “The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures....' ” United States v. Orduna–Martinez, 561 F.3d 1134, 1137 (10th Cir.2009) (quoting U.S. Const. amend. IV). “[A] warrantless search is presumptively unreasonable under the Fourth Amendment and therefore invalid unless it falls within a specific exception to the warrant requirement.” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir.2003).

Upon review of the denial of a motion to suppress, “we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment.” United States v. Eckhart, 569 F.3d 1263, 1270 (10th Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1752, 176 L.Ed.2d 222 (2010). In this case, the district “court generally found Officer Cortez' testimony at the [suppression] hearing to be credible” (Doc. 29 at 4), a factual finding we review for clear error.² United States v. Taylor, 592 F.3d 1104, 1108 (10th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 3339, 176 L.Ed.2d 1234 (2010).

1. Search of Defendant's person

Polly first argues that the search of his person was unreasonable, both because the

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traffic stop was unjustified and because the resulting detention exceeded the scope of the stop.

For Fourth Amendment purposes, the legality of a traffic stop is assessed pursuant to the framework established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See United States v. Winder, 557 F.3d 1129, 1133 (10th Cir.), cert. denied, ––– U.S. ––––, 129 S.Ct. 2881, 174 L.Ed.2d 591 (2009). Accordingly, we proceed in two steps. First, we question whether the traffic stop “was ‘justified at its inception.’ ” Id. (quoting United States v. Valenzuela, 494 F.3d 886, 888 (10th Cir.2007)). Second, if the stop was justified, “we determine whether ‘the resulting detention was reasonably related in scope to the circumstances that justified the stop in the first place.’ ” Id. at 1134 (quoting Valenzuela, 494 F.3d at 888).

Polly argues that the traffic stop was not justified at the outset because it was just a ruse so that Officer Cortez could further his drug-trafficking investigation. “A traffic stop is justified at its inception if an officer has (1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that a particular motorist has violated any of the traffic or equipment regulations of the jurisdiction.” Id. at 1134. Even if Polly is correct that the traffic stop was simply a ruse, that fact is legally irrelevant. In determining whether a traffic stop is constitutional, the officer's “subjective intent or good faith do[es] not affect the reasonableness of the stop.” Orduna–Martinez, 561 F.3d at 1137 (citing Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)); see also Winder, 557 F.3d at 1134 (noting that “an officer's actual motivations or subjective beliefs and intentions are, quite simply, irrelevant” (internal quotations omitted)). Accordingly, “an officer's motive” will not “invalidate[ ] objectively justifiable behavior under the Fourth Amendment.” Whren, 517 U.S. at 812, 116 S.Ct. 1769 (emphasis added).

There can be little doubt that the traffic stop here was objectively justifiable based on the traffic violations that Cortez observed. The district court found that Polly committed traffic violations both by crossing the centerline and by speeding. Although Polly disputes whether he was speeding, he has not shown that the district court clearly erred in determining that Cortez observed him speeding. Polly also claims that he did not commit a traffic violation by crossing the centerline because he was merely making a left turn and then changed his mind and proceeded, which is not, according to Polly, a traffic violation. However, the Oklahoma statute he cites in support of this proposition states only that one can cross the centerline when making a left turn, not that someone can cross the centerline in the process of an aborted left turn and come back over the centerline. 47 Okla. Stat. Ann. §...