U.S. v. Rosborough, No. 02-8120.

• Decision Date: 03 May 2004
• Docket Number: No. 02-8120.
• Citation: 366 F.3d 1145
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Derwlyn ROSBOROUGH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

366 F.3d 1145

UNITED STATES of America, Plaintiff-Appellee, v. Derwlyn ROSBOROUGH, Defendant-Appellant.

No. 02-8120.

United States Court of Appeals, Tenth Circuit.

May 3, 2004.

David A. Kubichek, Assistant United States Attorney, (Matthew H. Mead, United

States Attorney, with him on the brief) District of WY, for Plaintiff-Appellee.

Jason M. Tangeman, Anthony, Nicholas, Tangeman & Yates, LLC, Laramie, WY, for Defendant-Appellant.

Before BRISCOE, McWILLIAMS, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Derwlyn Rosborough appeals the district court's denial of his motion to suppress evidence discovered by government agents in the search of his vehicle. We must determine under the circumstances of this case whether a canine alert directed toward the passenger compartment of a vehicle gives rise to probable cause to search the vehicle's trunk. We must also decide if the duration of the search — approximately one hour prior to the canine alert, and one hour and fifteen minutes thereafter — implicates Fourth Amendment concerns. Exercising jurisdiction over this matter pursuant to 28 U.S.C. § 1291, we conclude that the search did not violate the Fourth Amendment and AFFIRM.

I

On May 10, 2002, at approximately 9:16 a.m., Wyoming Highway Patrolman Timothy Boumeester clocked defendant Derwlyn Rosborough driving a BMW convertible at six miles per hour over the posted speed limit. Boumeester stopped the vehicle and requested Rosborough's driver's license, registration, and proof of insurance. Boumeester learned that Rosborough and his cousin, Steven Wade, were driving to Omaha, Nebraska to return the vehicle to Rosborough's sister. Boumeester confirmed the validity of both men's licenses and the vehicle registration (Rosborough did not have proof of insurance), and a criminal history check revealed that both Rosborough and Wade had criminal histories. Boumeester returned the licenses and registration, issued a written warning for speeding, and answered the men's request for directions.

Almost immediately thereafter, Boumeester asked the men if he could pose some additional questions. Upon receiving their permission, Boumeester asked if they had any illegal substances in the vehicle. According to Boumeester's testimony at the suppression hearing, Rosborough responded by telling the officer, "[i]f you want to search the car, go ahead," to which Boumeester replied, "if you don't have a problem with that, I would like to." (2 R. at 20.) Around the same time, Patrolman Richard Griebe arrived on the scene.

According to the testimony of Boumeester and Griebe, the officers proceeded to search the vehicle, including the interior, the trunk, and the bags in the trunk; they received separate consent for each section searched. Rosborough and Wade assisted the officers in their search by opening the hood to search the vehicle's engine, removing the soft top convertible compartment, and moving the car onto the shoulder of the road.

According to Rosborough in his brief on appeal, the officers assured him at various times throughout this search that the detention would be brief, and that it would not last much longer. The record confirms that Rosborough and Wade were told repeatedly that the search would end promptly. According to Boumeester's testimony, before he began the initial search of the vehicle, around 9:27 a.m., he told Rosborough and Wade that "[t]his will just take a minute." (2 R. at 60.) After smelling an odor that he thought may have been used to mask the scent of drugs, Boumeester called for a canine unit. At about 9:34 a.m., Boumeester told Rosborough and Wade that the search would not take much longer.

The canine unit arrived with Patrolman David Chatfield shortly after 10:00 a.m approximately forty-five minutes into the search. The officers testified, and Rosborough does not contest, that Rosborough consented to a canine search of the inside of the vehicle. After the canine alerted toward the front passenger area, around 10:15 a.m., one of the men admitted to having smoked marijuana in the car. According to Griebe, Rosborough and Wade then revoked their consent to the search of the vehicle and expressed concern about the length of the detention.

Despite the fact that Rosborough and Wade revoked their consent after the canine alert, the patrolmen renewed the search; finding nothing in the area in which the dog alerted, they proceeded to search the trunk. Boumeester removed the carpet from the trunk and discovered a metal wall separating the trunk area and back seat. A continued search of this area revealed approximately thirty pounds of cocaine distributed among sixteen separate packages. The search ended shortly after 11:31 a.m. Rosborough and Wade were charged with conspiracy to possess with intent to distribute and possession with intent to distribute cocaine.

Rosborough moved to suppress the evidence on the grounds that the search was invalid for lack of reasonable suspicion, probable cause, or consent to search. The district court denied the motion to suppress, finding that the search was consensual prior to the canine alert, and that the canine alert gave the officers probable cause to search the entire vehicle. Rosborough entered into a plea agreement, pleading guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The court sentenced him to twenty years in prison, five years supervised release, and a monetary fine. Rosborough now appeals the district court's denial of his motion to suppress the evidence.

II

In reviewing a district court's denial of a motion to suppress, we consider the evidence in the light most favorable to the government and accept the trial court's findings of fact unless they are clearly erroneous. United States v. Scroger, 98 F.3d 1256, 1259 (10th Cir.1997). "The credibility of witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court." United States v. Long, 176 F.3d 1304, 1307 (10th Cir.1999). We review de novo the ultimate determination of reasonableness under the Fourth Amendment, "[k]eeping in mind that the burden is on the defendant to prove that the challenged seizure was illegal...." Id. (citation omitted).

In the context of routine traffic stops, a law enforcement officer may generally request a driver's license, registration, and other required papers, run requisite computer checks, and issue citations or warnings as appropriate. United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994) (quotation omitted). Further detention is appropriate only if during the course of the traffic stop, (1) the officer develops an "objectively reasonable and articulable suspicion" that the driver is engaged in some illegal activity, or (2) "the initial detention ... become[s] a consensual encounter." See United States v. McRae, 81 F.3d 1528, 1534 (10th Cir.1996) (quotation omitted). Notwithstanding these exceptions, an investigative stop must be "temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

A

Rosborough argues that he did not voluntarily consent to the search of his vehicle. In support of this claim, he explains that the following factors led him to consider himself in custody and not free to leave, such that his consent was not voluntary: (1) he was stopped in a remote location about nine miles from Laramie, Wyoming; (2) more than one patrolman was present; (3) Boumeester's inquiry regarding illegal drugs immediately followed the return of Rosborough's license and registration; and (4) after Rosbourough agreed to have the car searched, he and Wade were ordered out of the vehicle, searched, and told to stand in the borrow ditch.

Whether Rosborough freely and voluntarily consented to the search of the vehicle is a question of fact based on the totality of the circumstances, which we review for clear error. United States v. Pena, 143 F.3d 1363, 1366 (10th Cir.1998). We consider whether the officer's conduct constituted a coercive show of authority, such that a reasonable person would believe he was not free to "decline the officer's requests or otherwise terminate the encounter." United States v. West, 219 F.3d 1171, 1176 (10th Cir.2000) (quotation omitted). Factors tending to show that consent was coerced include the presence of more than one officer, the display of weapons, physical touching, and use of an aggressive tone. United States v. Turner, 928 F.2d 956, 959 (10th Cir.1991).

Upon review of the relevant facts, we conclude that Rosborough's initial consent to the search of his vehicle was voluntary. First, Boumeester returned the men's papers and answered their inquiry about the distance to Laramie before asking any additional questions of the men. Second, Rosborough does not assert that Boumeester touched him, threatened him, displayed his weapon, or spoke in an aggressive tone at any point in their encounter. Moreover, Boumeester did not ask Rosborough for consent to search the vehicle; to the contrary, Rosborough himself volunteered permission to Boumeester to search his car. Although the added presence of Patrolmen Griebe had the potential to make the situation more coercive, we conclude that the district court's finding that Rosborough consented to the search is not clearly erroneous.

Rosborough also suggests that even if his consent was voluntary at the time he gave it, it ceased to be voluntary over the course of the search because he felt that he was not empowered to revoke his consent due to the coercive behavior of the officers. For example, Rosborough states in his appellate brief that the patrolmen ordered him to remain in the ditch; on two separate occasions, moreover, he and his cousin asked whether they were under arrest and when the search would be complete. In response to one such inquiry,...