U.S. v. Rutherford, 86-1922

• Decision Date: 29 July 1987
• Docket Number: No. 86-1922,86-1922
• Citation: 824 F.2d 831
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Richard RUTHERFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 831

824 F.2d 831

UNITED STATES of America, Plaintiff-Appellee, v. James Richard RUTHERFORD, Defendant-Appellant.

No. 86-1922.

United States Court of Appeals Tenth Circuit.

July 29, 1987.

John S. Morgan, Asst. U.S. Atty. (Layn R. Phillips, U.S. Atty., with him on the brief), Tulsa, Okl., for plaintiff-appellee.

Frank A. Zeigler of Martin, Turner & Zeigler, Tulsa, Okl., for defendant-appellant.

Before BALDOCK, McWILLIAMS, and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

James Richard Rutherford, the appellant, and one Nicholas L. Spatafora, who is not an appellant, were jointly charged in the first count of a three-count indictment with conspiring to commit offenses against the United States in violation of 21 U.S.C. Sec. 846. In count two, Rutherford and Spatafora were jointly charged with the possession on November 7, 1985, of three pounds of marijuana with an intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. In count three, Rutherford, but not Spatafora, was charged with the possession on November 7, 1985, of five kilos of hashish, a derivative of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). Spatafora later pled guilty to count one and was sentenced thereon, and he makes no appeal therefrom. Rutherford in a trial to the court was convicted on all three counts, and he now appeals the sentence imposed thereon.

Prior to trial, Rutherford filed a motion to quash his arrest and a motion to suppress evidence seized in a search of his automobile. After an extended evidentiary hearing, at which six police officers and both Rutherford and Spatafora testified, the district court made detailed findings and denied Rutherford's motions. In the ensuing trial to the court, the case, by agreement of counsel, was submitted to the district court on the basis of the findings made at the hearing on the pretrial motions. As indicated, the district court found Rutherford guilty on all three counts. A brief review of these stipulated facts will place the controversy in focus.

On November 7, 1985, at about 8:00 a.m., an anonymous informant called the Tulsa, Oklahoma, police department and informed the police that his daughter had been at a party on the preceding evening at Spatafora's residence in Tulsa at which time she had seen a quantity of marijuana in suitcases. Prior to this anonymous telephone call, the Tulsa police department had already developed information that Spatafora was trafficking in drugs out of his residence. As a result of this anonymous tip, Tulsa police, at about 10:00 a.m. on November 7, 1985, set up a surveillance of Spatafora's residence. At about 11:40 a.m. on that same morning Rutherford was observed by the officers when he stopped his car at the Spatafora residence. Rutherford was observed entering the Spatafora residence empty-handed and then seen leaving the residence about ten minutes later carrying a tan bag by its strap, which he placed in the trunk of his car. The officers followed Rutherford as he left the scene in his automobile. At one point, Rutherford pulled his car to the side of the street and an officer pulled in behind Rutherford. The latter, however, sped off as the officer was getting out of his car. After a chase, Rutherford was thereafter stopped by other officers at a ramp leading on to Interstate 44.

At the scene where Rutherford had been stopped, he was questioned briefly by the officers. Rutherford produced a valid Colorado driver's license which bore a Colorado home address. Rutherford stated that the vehicle he was driving belonged to his father, who lived in Grand Lake (presumably, Grand Lake, Oklahoma), and he explained that his father was in the process of buying the car. The vehicle bore Illinois license plates. A radio check indicated the vehicle was not stolen. However, a registration check showed that the Illinois license plate on Rutherford's vehicle had been issued to a Ford automobile, whereas Rutherford was driving an AMC Matador. When asked by the police, Rutherford refused to consent to a search of his vehicle and declined to give a local Tulsa address where he would be staying.

Rutherford was arrested at the scene for driving a vehicle with improper license plates, a violation of a local municipal ordinance, and he, and his automobile, were taken to the police station. At the station Rutherford was booked, bond was set, which Rutherford posted, and he left the station.

At or about the time Rutherford left the station, the police obtained a search warrant and immediately searched Rutherford's vehicle. The search revealed three pounds of marijuana in a tan bag with a strap, and in a separate container five kilos of hashish wrapped in red cellophane, all in the trunk of the vehicle. After leaving the police station upon posting bond on the traffic charge, Rutherford had gone directly to his attorney's office, and he was arrested there on the present charges.

On appeal, Rutherford urges three grounds for reversal: (1) the lawful investigatory detention of Rutherford ripened into a de facto arrest without probable cause; (2) the search warrant was not based on "probable cause"; and (3) counts two and three charged only one offense, not two, i.e., there was "one possession" of both the marijuana and hashish, not a separate possession of each.

I.

Appellant concedes that under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police did not violate Rutherford's fourth amendment rights when they stopped Rutherford's automobile and made preliminary inquiry of Rutherford. We agree. Certainly, at a minimum, the police had "reasonable suspicion" that there was marijuana in the bag which Rutherford carried out of Spatafora's residence and then placed in the trunk of his vehicle. However, appellant does argue that what happened thereafter ripened into a de facto arrest which was not based on probable cause. We do not agree.

As indicated, at the scene of the stopping, Rutherford exhibited a valid Colorado driver's license. Concerning ownership of the vehicle, Rutherford stated that the vehicle belonged to his father, who, according to Rutherford, was in the "process" of buying the vehicle from an Illinois rental car company. There apparently was some discussion indicating that there was a car rental agreement and temporary registration paper in the glove compartment of the automobile. In any event, the police made a computer check and determined that the car was not a stolen car. However, a registration check showed that the Illinois license plate on Rutherford's AMC Matador had been issued to a Ford automobile. Because of a computer problem, the check took longer than usual, requiring some 25 to 30 minutes. Altogether, the detention at the scene where Rutherford had been stopped lasted about one hour, at...