U.S. v. Stewart

• Citation: 473 F.3d 1265
• Decision Date: 19 January 2007
• Docket Number: No. 05-4255.,05-4255.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adrian T. STEWART, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1265

473 F.3d 1265

UNITED STATES of America, Plaintiff-Appellee, v. Adrian T. STEWART, Defendant-Appellant.

No. 05-4255.

United States Court of Appeals, Tenth Circuit.

January 19, 2007.

Scott C. Williams, Salt Lake City, UT, for Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with her on the briefs), Salt Lake City, UT, for Plaintiff-Appellee.

Before HENRY, HOLLOWAY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

A traffic stop of Adrian T. Stewart's car in Heber City, Utah, led to the discovery under his seat of a loaded .9 millimeter pistol with the safety off and a package of methamphetamine hidden in a rollerblade. Mr. Stewart moved to suppress this evidence, arguing that the officer's question that led to the discovery of the gun, and the subsequent search of his vehicle, violated his Fourth Amendment rights. The district court denied his motion, and a jury convicted him of methamphetamine possession. The government dismissed the gun charge. He now appeals from the district court's denial of his suppression motion.

In light of the Supreme Court's recent decision in Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), we hold that the officer's question was not a Fourth Amendment violation because — as Mr. Stewart concedes — it did not prolong the length of the traffic stop. We also hold that the vehicle search was proper under the automobile exception to the warrant requirement. We therefore AFFIRM the district court's denial of Mr. Stewart's motion to suppress.

FACTS

On September 11, 2003, Sergeant Jeffery Winterton of the Wasatch County Sheriff's Office received a phone call from an informant "indicat[ing] that there was a vehicle parked at a location in Heber City, [Utah,] and that every time that vehicle was in town there was dope in it." R. Vol. III, at 8. At first, Sergeant Winterton rebuffed the informant's invitation to come see the vehicle, citing his heavy workload. He eventually relented, however, and met the informant in a McDonald's parking lot. The two traveled together in Winterton's car to the Bear Mountain Chalet, a Heber City motel, where the informant pointed out a white Chevrolet Tahoe backed into a motel parking stall. It bore an Idaho license plate. Winterton saw that the Tahoe lacked a front license plate as both Utah and Idaho law require. Idaho Code Ann. § 49-428(1); Utah Code Ann. § 41-1a-404(1). Because no one was in or around the Tahoe at that time, and because he had other work to do, Winterton returned the informant to his own car at McDonald's and continued working on his previously scheduled tasks.

More than two hours later, Sergeant Winterton returned to the Bear Mountain Chalet's parking lot and saw that the Tahoe was still there. He reconnoitered and observed a woman open the Tahoe's passenger side front door and repeatedly walk from there to the Tahoe's rear hatch. At the time, he was unable to discern what the woman was doing. He also saw that the driver's door was open, but he did not see anyone other than the woman near the Tahoe. The woman eventually sat in the front passenger seat and closed the door. Approximately one minute later, the driver's door shut, and the Tahoe left the parking lot.

Sergeant Winterton followed the Tahoe. He tried to run a records search but was unable to see the Tahoe's license plate number because some straps from a bicycle rack were obscuring it. Winterton then turned on his emergency lights and stopped the Tahoe.

The driver was Adrian Stewart. When Sergeant Winterton asked him for his driver's license and registration, Mr. Stewart "became very nervous" and "delayed" giving a response. Id. at 13. Stewart "look[ed] around inside the vehicle ... then said he thought" his license was "in the back." Id. He then "made a furtive movement to the back of the vehicle." Id.

Sergeant Winterton told Mr. Stewart to stop reaching for the backseat. He asked if Stewart could obtain his driver's license from the back of the Tahoe if Stewart stepped out of the car. Mr. Stewart said that he could. Before opening the door and letting Mr. Stewart out of the vehicle, Sergeant Winterton "asked Mr. Stewart if he had any weapons or contraband in the vehicle that [Winterton] needed to be concerned about." Id. at 13. When Stewart responded that he had a gun under the driver's seat, Sergeant Winterton asked him to exit the Tahoe. He did, and Winterton escorted him to the back of the vehicle.

While Mr. Stewart waited, Sergeant Winterton checked under the driver's seat and found in a pistol case a loaded .9 millimeter handgun with the safety off. This discovery prompted Winterton to arrest Mr. Stewart. He did not, however, search the vehicle incident to this arrest. Instead, he received permission from Mr. Stewart to enter the Tahoe for the limited purpose of finding Stewart's driver's license. After several failed attempts to find the license, and repeated calls to dispatch, Sergeant Winterton was able to verify that Mr. Stewart had a valid Idaho's driver's license. Winterton then took Mr. Stewart to jail.

Before leaving, however, Winterton called for other officers to impound the Tahoe and inventory its contents. One of those was Deputy Gregory Royal, a dog handler. Deputy Royal arrived to impound the Tahoe, but decided to deploy his narcotics detection dog Boomer before doing so. Boomer had been certified in Colorado as a narcotics detection dog in August 2003 — approximately one month before this sniff occurred — and he had not yet been certified in Utah. Deputy Royal started Boomer "at the back of the vehicle on the passenger side, and [he] walked Boomer around, up the passenger side, around the front, down the driver's side of the vehicle, where Boomer then alerted" on the rear driver's side by aggressively scratching at the Tahoe. Id. at 50-51.

Deputy Royal notified Sergeant Olsen of the alert and put Boomer away. The two officers then began to inventory the Tahoe's contents. No search, inventory or otherwise, occurred until after Boomer alerted. During the inventory search, the officers found a pair of rollerblades in the Tahoe's rear hatch, on the driver's side of the car. They discovered inside one rollerblade a four- to five-inch-long package that "was wrapped in duct tape which appeared to have maybe a sock that was showing on the corner that was poking out." Id. at 52. Based on Deputy Royal's training, he suspected the package contained narcotics. Royal contacted Sergeant Olsen, another officer on the scene, who opened the package to discover a white, crystal-like substance that turned out to be methamphetamine.

Mr. Stewart was eventually indicted for possession of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and for possession of a firearm by a restricted person in violation of 18 U.S.C. § 922(g)(9). A jury convicted him, and he was sentenced to ninety-seven months imprisonment and forty-eight months of supervised release.

DISCUSSION

I. Winterton's Question to Stewart Was Constitutional.

Mr. Stewart bases his first argument — that Winterton violated his Fourth Amendment rights by asking about the presence of weapons or contraband — on United States v. Holt, 264 F.3d 1215 (10th Cir.2001) (en banc). In Holt, a majority of this Court sitting en banc "delineate[d] the scope of permissible questioning during a routine traffic stop," id. at 1217, by holding "that both the length and scope of a traffic stop are relevant factors in deciding whether the stop comports with the Fourth Amendment," id. at 1227. Discussing the "scope" aspect, we held that an "officer's question about the existence of a loaded weapon in the vehicle" did not violate the driver's Fourth Amendment rights because that inquiry "was justified on the grounds of officer safety." Id. at 1217.

The en banc Holt court, however, split on the question presented here: whether the Constitution permits officers to ask about unloaded weapons or other contraband. Four judges "reject[ed] the government's invitation to adopt" a "bright-line rule allowing an officer conducting a traffic stop to ask the driver about the presence of weapons, absent reasonable suspicion that the driver may be armed and dangerous." Id. at 1230 (opinion of Briscoe, J.). One judge saw no constitutional problem with such questions as long as they did not "prolong the duration of the stop or alter its fundamental character as a Terry-type detention." Id. at 1237 (opinion of Henry, J.). And four judges preferred not to resolve that question in that case due to an inadequately developed factual record. Id. at 1226-27 (opinion of Ebel, J.).

Thus, following Holt, the constitutionality of inquiries such as Winterton's to Mr. Stewart was an open question. So if Holt were the most recent decision on this subject, Mr. Stewart's argument might well have merit. Unfortunately for him, it is not. The Supreme Court has since adopted Judge Henry's view in Holt by holding that the content of police questions during a lawful detention does not implicate the Fourth Amendment as long as those questions do not prolong the detention. Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005). We have applied Muehler in traffic stop cases to resolve Fourth Amendment objections similar to Mr. Stewart's. See United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258-59 (10th Cir.2006); United States v. Wallace, 429 F.3d 969, 974 (10th Cir.2005).

We now make explicit what we implied in Alcaraz-Arellano and Wallace: in light of Muehler, the language from Holt approving traffic stop questions only when the officers specifically mention loaded weapons is no longer good law. See Alcaraz-Arellano, 441 F.3d at 1258 ("In light of Muehler, we have held that `[a]s long as the [deputy's] questioning did not extend the length of the detention, ... there is no Fourth Amendment issue with respect to the content of the...