U.S. v. Rehkop, 95-3446

• Decision Date: 18 September 1996
• Docket Number: No. 95-3446,95-3446
• Citation: 96 F.3d 301
• Parties: UNITED STATES of America, Appellee, v. Marc D. REHKOP, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 301

96 F.3d 301

UNITED STATES of America, Appellee, v. Marc D. REHKOP, Appellant.

No. 95-3446.

United States Court of Appeals Eighth Circuit.

Submitted March 15, 1996.

Decided Sept. 18, 1996.

Thomas D. Carver, argued, Springfield, MO, for appellant.

Richard E. Monroe, argued, Springfield, MO, for appellee.

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Marc D. Rehkop appeals from a final judgment entered in the United States District Court ¹ for the Western District of Missouri upon a jury verdict finding him guilty of one count of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and one count of use of a firearm during and in relation to the offense of possession with intent to distribute methamphetamine, in violation of 18 U.S.C. § 924(c). The district court sentenced Rehkop under the federal sentencing guidelines to 248 months imprisonment, five years supervised release and a special assessment of $100.00. For reversal, Rehkop argues the district court erred in (1) denying his motion to suppress evidence seized from his vehicle and (2) improperly instructing the jury on the law applicable to 18 U.S.C. § 924(c). For the reasons discussed below, we affirm in part, reverse in part, and remand the case to the district court for further proceedings consistent with this opinion.

I. Background

The underlying facts are not in dispute. On August 8, 1994, at approximately 1:30 a.m., Officer Kelly Roth of the Springfield, Missouri, Police Department was on a duty as a uniformed patrol officer in a marked police car. Officer Roth observed a vehicle at rest in an inside driving lane at the corner of Kansas Expressway and Kearney Street in Springfield. After observing the vehicle remain stationary through three cycles of an electric traffic light, Officer Roth approached the vehicle, directed his spotlight into the passenger's side window, and observed Rehkop asleep at the wheel. The spotlight awoke Rehkop. Rehkop looked at Roth, became startled, looked down at the seat, and drove off through a red light.

Officer Roth followed the vehicle after it ran the red light and contacted a dispatcher with the message that he was following a possible DWI and requested assistance. He then followed the vehicle southbound on Kansas Expressway and observed it swerving within its own lane four times. Having observed Rehkop sleep through several cycles of the traffic light, run a red light, and swerve within his lane, Officer Roth believed that Rehkop was driving while intoxicated. He activated his red lights to stop the vehicle, and Rehkop complied by pulling over into the parking lot of a nearby convenience store. Officer Roth followed and parked his vehicle so as to block Rehkop's automobile.

Officer Roth testified that after Rehkop stopped he observed Rehkop make a motion in which his head and shoulders bowed forward and downward. At the time, Roth thought Rehkop was hiding an alcoholic beverage and instructed him to remain in the car. Roth then asked to see Rehkop's driver's license. When Rehkop replied that he did not have one, Roth asked Rehkop to exit his vehicle, and Rehkop complied. At that point, Roth conducted a frisk for weapons and asked Rehkop if he had any weapons on him. Rehkop responded that he did not but that there was an unloaded weapon on the back seat of the car. Officer Roth then handcuffed Rehkop, and another police officer, Officer Pulliam, arrived to assist. While Pulliam watched Rehkop, Roth looked into the passenger side of the vehicle at the back seat and observed a .45 caliber handgun laying on the floorboard behind the passenger's seat. When Roth picked up the firearm, it was in the "cocked and locked position," meaning that the hammer was back and the thumb safety was in position. Although the firearm did not contain a magazine, Officer Roth observed a bullet in the chamber of the pistol.

Officer Roth also testified that Rehkop appeared lethargic and unable to focus his attention. There was no odor of alcoholic beverages. Roth, however, believed Rehkop was under the influence of a narcotic, because Rehkop's eyes were bloodshot and glassy and he appeared to have a delayed reaction to the statements made to him.

After finding the firearm, Officer Roth informed Rehkop that he was under arrest for suspicion of driving while intoxicated and for unlawful use of a weapon. Officer Roth advised him of his Miranda rights, and Rehkop replied that he understood these rights. After placing Rehkop under arrest, Roth decided that the vehicle Rehkop had been operating would have to be subjected to a custody tow and impounded pursuant to Springfield's Manual of Administrative Policy. The manual provides that, when a person is arrested and the vehicle is neither on the owner's property nor in the custody of the owner, a custody tow will be ordered. Roth testified that he believed that the manual required a vehicle subjected to a custody tow to be searched and inventoried.

During the inventory search, Officer Roth found .45 caliber ammunition and a sealed box. The sealed box was in the back seat on the driver's side. Roth opened the box and discovered several nested plastic bags and felt something soft and warm. He then emptied the contents of the bag on the ground and discovered a gallon freezer bag which contained a soggy, tan substance. Roth asked Rehkop if he thought this bag weighed a pound; Rehkop looked up and replied, "No, five." At that point, Roth resumed his search of the box and found additional gallon bags, which he seized because he suspected them to contain contraband. He also found a nylon pouch in the front seat of the car which contained three extra clips of ammunition. After finding the items in the box, Roth placed Rehkop under arrest for possession of narcotics.

Officer Roth also issued three traffic violation tickets to Rehkop, for careless and imprudent driving, failing to have a driver's license, and driving while intoxicated. Roth testified that he did not have Rehkop's consent to search the vehicle and that he had no reason to believe that there were drugs in the vehicle when he began the inventory. Another police officer who assisted in the inventory search discovered a .45 caliber magazine under the driver's seat.

A subsequent analysis of the soggy, tan substance found in Rehkop's car revealed that the substance was ninety-two percent pure d-methamphetamine. The weight of the materials, exclusive of the packaging, was 1,819.67 grams or 4.01 pounds. Moreover, a special agent for the DEA testified that the value of the methamphetamine would be $108,000 if sold by pounds, $345,000 if sold by ounces, and $600,000 if sold by grams. The special agent testified that the quantity seized was therefore not consistent with personal use.

On August 10, 1994, a federal grand jury returned a two-count indictment in the United States District Court in Springfield, Missouri, charging Rehkop with (1) possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (2) use of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c).

On April 14, 1995, Rehkop moved to suppress all the evidence seized from his vehicle on the ground that there was no probable cause to support the warrantless search in violation of the Fourth Amendment. After a hearing held on May 10, 1995, the district court issued oral findings and denied the motion to suppress. ²

After evidence was submitted to the jury on May 11, 1995, the district court instructed the jury on the law of the case. In instructing the jury, the district court refused Rehkop's proposed instruction on Count II for the alleged violation of 18 U.S.C. § 924(c). ³ Over the specific objection of Rehkop, the district court gave jury instruction number 17 as to Count II. ⁴ The jury returned guilty verdicts as to both counts of the indictment.

On September 20, 1995, following a sentencing hearing, the district court sentenced Rehkop under the federal sentencing guidelines to 248 months imprisonment, five years supervised release and a special assessment of $100.00. This appeal followed.

II. Discussion

For reversal, Rehkop first argues the district court erred in denying his motion to suppress evidence seized from his vehicle because the warrantless search violated the Fourth Amendment. Specifically, Rehkop contends that Officer Roth lacked probable cause to make the initial traffic stop of the vehicle and that the stop was merely pretextual. Rehkop recognizes that a traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle. United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993) (Barahona ) (citing United States v. Cummins, 920 F.2d 498, 500 (8th Cir.1990)- , cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991)). He argues, however, that weaving within one's lane of traffic does not constitute a traffic violation. Rehkop therefore maintains that because he was not lawfully in custody at the time of the inventory search of his automobile, the district court should have suppressed the evidence seized from his vehicle.

The Supreme Court has recently clarified that the historical facts supporting probable cause are reviewed for clear error, while the determination of probable cause is subject to de novo review. Ornelas v. United States, --- U.S. ----, ---- - ----, 116 S.Ct. 1657, 1662-63, 134 L.Ed.2d 911 (1996) (determination of whether probable cause existed for search, requiring application of facts to law, is mixed question of law and fact and should be reviewed de novo). The Supreme Court stated that, in determining whether probable cause existed, "a reviewing court should ... give due weight to inferences drawn from those [historical] facts by resident judges and local law enforcement officers." Id. at ----, 116 S.Ct. at 1663.

In the present...