U.S. v. Powell

• Decision Date: 11 June 1991
• Docket Number: No. 89-3509,89-3509
• Citation: 929 F.2d 1190
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Richard POWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1190

929 F.2d 1190

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Richard POWELL, Defendant-Appellant.

No. 89-3509.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 12, 1990.

Decided April 11, 1991.

Rehearing and Rehearing In Banc

Denied June 11, 1991.

Paul Kanter, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Charles W. Giesen, Morris D. Berman, Giesen & Berman, Madison, Wis., for defendant-appellant.

Before BAUER, Chief Judge, FLAUM and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Jeffrey Powell entered a conditional plea of guilty to one count of conspiring to distribute marijuana in violation of 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 2. He reserved his right to appeal the district court's denial of his motion to suppress evidence obtained from a vehicle stop and subsequent searches, as well as his arrest. We conclude that he has no standing to challenge the vehicle stop, and that the subsequent searches did not violate his rights under the Fourth Amendment. We consequently affirm the conviction.

I. FACTS AND PRIOR PROCEEDINGS

State trooper Richard Haycock patrols the highways of southern Utah. On December 17, 1988, he came upon a pickup truck with a large plastic shell known as a camper back over the bed. The pickup approached Interstate 70, a major east-west highway, from a smaller road that runs north from Arizona. As the pickup merged onto I-70 from the on-ramp, its driver failed to announce his movement by flashing the truck's directionals or using a hand motion. Officer Haycock signalled the camper's driver to pull over to the shoulder of the road.

After stopping, the pickup's driver left the cab of his truck and walked toward the rear of the camper shell, where Haycock met him. Haycock peered through a window into the camper-back's interior, and observed that the floor was raised above the level of the truck bed, and that the ceiling of the camper back's interior was approximately a foot lower than the roof, creating two storage spaces. The driver of the truck produced an Arizona driver's license bearing the name Michael Maroda. The truck's title documents, however, were issued in Wyoming to a Jeffrey Powell. When questioned by Haycock, Maroda informed him that the truck he was driving belonged to Powell, and that he was driving it from Arizona to Cheyenne, Wyoming, where he was to meet Powell. The address given on Powell's registration, however, was not Cheyenne, but Evanston, across the state.

As the conversation between Haycock and Maroda progressed Maroda appeared increasingly nervous. Based on his five years of experience as a trooper and the numerous drug seizures he had made during that time, Haycock suspected that Maroda was a courier transporting marijuana. Not one to beat around the bush, Haycock "just point blank asked Mr. Maroda how much marijuana was in the truck." Evidentiary Hearing Transcript at 40. Maroda responded that he would show Haycock that there was none. When Maroda opened the door of the camper back, the strong scent of fresh marijuana rose up to greet Haycock's expert nostrils.

Upon smelling the marijuana, Haycock frisked Maroda for weapons, handcuffed him, and called for backup. With Maroda standing on the side of the road, Haycock began to examine the concealed areas of the camper back. Seeing Haycock struggle with the screws that secured the plywood floor, Maroda offered him the use of an electric screwdriver kept in the cab of the truck. Upon opening the floor and ceiling panels, Haycock observed a number of large bundles wrapped in tape. At this point, the trooper read Maroda his rights.

Haycock, however, had his sights on bigger game than Maroda. He asked Maroda to whom he was delivering his load, and Maroda responded that it was Jeffrey Powell, and that he was en route to West Bend, Wisconsin to meet him. Maroda showed Haycock a notebook with information on the route Maroda was to take to Wisconsin, as well as the phone number Powell had instructed Maroda to call when he reached West Bend. With the assistance of federal drug enforcement agents based in Milwaukee, Haycock set to work arranging the delivery of the marijuana-laden truck to Powell. He arranged for state troopers to reassemble the camper back and drive the pickup to Wisconsin and for other troopers to fly with Maroda from Salt Lake City to Wisconsin. When Maroda arrived in Milwaukee, he told DEA agents that he had been contacted by Powell in Arizona and offered $7,000 to drive the pickup to Wisconsin. Powell told Maroda that when he delivered the marijuana he would be given $100,000 in cash to store for Powell in Arizona, as well as a plane ticket from Chicago to Arizona.

DEA agents escorted Maroda to West Bend, where on December 19, 1988, two days after the Utah vehicle stop, he was reunited with the truck. While three law enforcement officers hid in the camper back, Maroda called the phone number Powell had given him and was told to wait where he was. A few minutes later, Powell drove up in his car and instructed Maroda to follow him. When the pickup stopped in the driveway of a house in West Bend, the DEA agents emerged and arrested Powell. A search of Powell's person revealed a small amount of cocaine. A search of the trunk of his car revealed a suitcase containing $111,000 in cash and a small amount of marijuana.

A grand jury in the Eastern District of Wisconsin indicted Powell on several drug-related charges and one violation of the Travel Act. Powell filed motions to suppress his arrest and all evidence found in the truck, on his person, or in his car, on the ground that they were obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. He challenged the vehicle stop in Utah, Trooper Haycock's subsequent visual inspection and physical search of the pickup, and the Wisconsin searches of his person and car.

An evidentiary hearing on Powell's motion to suppress was convened before a magistrate, who heard testimony from Haycock and the DEA agents who arrested Powell and searched him and his car. Maroda was subpoenaed but failed to appear at the initial hearing. The magistrate then issued a preliminary recommendation to the district court that all of Powell's motions to suppress be denied. This decision was based on the magistrate's determination that Powell lacked standing to challenge the search because he had not presented any evidence that he was the owner of the truck. The magistrate concluded in the alternative, however, that if the district court were to decide that Powell did have standing to contest the stop of the truck, his motions to suppress should be granted because the Utah statute that Trooper Haywood claimed as the basis for the stop did not require motorists entering a divided highway to signal their move from an on-ramp onto a highway. The magistrate labeled both these conclusions as preliminary and invited Powell to renew his motion to suppress if and when Maroda testified.

A few weeks later, Maroda appeared before the magistrate at a supplemental hearing. He was questioned about the vehicle registration found in the truck at the time of the vehicle stop, and identified the signature on the registration as Powell's. This fact, the magistrate ruled, sufficed to establish that Powell had standing to challenge Trooper Haycock's stop of the pickup. However, the magistrate concluded that the consent Maroda gave to Officer Haycock's search of the truck wiped away the taint of the prior unconstitutional stop. Accordingly, the magistrate recommended that the district court deny Powell's motions to suppress.

The district court disagreed with the magistrate's conclusion that the Utah statute Officer Haycock relied on did not require vehicles entering limited access highways to signal their lane changes. According to the district court, the statute, while ambiguous, could be read to require a motorist entering a highway to signal, and that Officer Haycock's stop was supported by Utah traffic law and therefore was not pretextual. Turning to the question of Powell's standing to challenge the stop, the district court rejected the magistrate's conclusion that Maroda's testimony and the other evidence presented at the supplemental suppression hearing was sufficient to establish that Powell owned the pickup. Finding that "the defendant has not proven he had the right to control the use of or exclude others from using the vehicle," Decision and Order at 20, the district court denied Powell's motions to suppress on the ground that he had no standing to challenge Officer Haycock's stop of the truck driven by Maroda. Following the denial of his suppression motions, Powell entered a conditional plea of guilty, reserving the right to appeal the district court's refusal to suppress the fruits of Haycock's vehicle stop.

II. WAS THE STOP VALID?

All parties concede that Maroda failed to signal his merge from the on-ramp onto Interstate 70. Utah Code Ann. Sec. 41-6-69(1)(a) (1987) provides that "[a] person may not turn a vehicle or move right or left upon a roadway or change lanes until the ... appropriate signal has been given." As applied to the facts before us, the phrase "may not turn a vehicle or move right or left upon a roadway or change lanes" is ambiguous, because it does not answer the question of whether a highway on-ramp is a "lane" considered part of the "roadway" itself. Neither does the definition of "roadway" contained in Utah Code Ann. Sec. 41-6-1(37) (1987). No Utah court has clarified this ambiguity; cases decided under the current version of Sec. 41-6-69 and its predecessors concern accidents at intersections, see, e.g., Hansen v. Nicholas Moving & Storage, 451 F.2d 319 (10th Cir.1971); Cederloff v. Whited, 110 Utah 45, 169 P.2d 777 (1946); Miller v. Utah Light & Traction, 96 Utah 369, 86 P.2d 37 (1939).

Questions of statutory interpretation are questions...