U.S. v. Stone

Decision Date25 January 1989
Docket NumberNo. 87-2858,87-2858
Citation866 F.2d 359
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John David STONE, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Edmund J. Lang, Albuquerque, N.M., for defendant-appellant.

Mark Jarmie, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., were also on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, BRORBY, Circuit Judge, and ANDERSON, District Judge. *

HOLLOWAY, Chief Judge.

John David Stone challenges on appeal the trial court's denial of his motion to suppress narcotics seized by police and statements he made during and following a search of his automobile. After the motion was denied, Stone was convicted on a jury verdict of possession with intent to distribute methaqualone in violation of 21 U.S.C. Sec. 841(a)(1), and aiding and abetting in violation of 18 U.S.C. Sec. 2. We affirm.

I
A.

On 11 February 1987, defendant Stone and Athena Anderson were driving west on Interstate 40 in New Mexico when Officer Clayton of the New Mexico State Police stopped them for speeding. While Officer Clayton was writing the citation, he smelled an odor he thought was either cocaine or crystal methadrine coming from the car. Stone reacted nervously when Clayton accused him of carrying narcotics. When Stone refused to consent to a search of the car, Officer Clayton told Stone to follow him to the police station in nearby Moriarity, New Mexico, where Clayton would get a warrant to search the car. II R. at 29, 33. In Moriarity, Officer Clayton called agent Small of the Drug Enforcement Administration and requested a background check on Stone. Agent Small told Clayton the DEA "had been doing surveillance on [Stone] for drug trafficking." With these facts, Officer Clayton went before a state magistrate and requested a search warrant for Stone's car. The magistrate refused to issue the warrant. Id. at 35. Clayton then released Stone.

When agent Small discovered Stone had been released, he telephoned Detective Nagee of the Albuquerque Police Department. Agent Small asked Detective Nagee "if they could possibly obtain a narcotics sniffing dog and stop the vehicle as it came into Albuquerque." Id. at 59. Officer Jones was called by another officer and advised that they were possibly going to stop the car. Jones proceeded to the area of Interstate 40 just east of Albuquerque and set up his radar. Id. at 76. Jones testified that his radar detected Stone traveling 65 miles per hour in a 55 mile per hour zone. Id. at 78.

Jones testified that Stone said he was not speeding and that he had been stopped earlier. Id. at 86. The government's witnesses testified that Officer Jones asked to see the ticket. Stone replied that it was in the rear of the hatchback. Jones reiterated he would like to see the citation. Tr. at 87. Stone got out of the car, opened the hatchback, and retrieved the ticket. Id. at 88. Sometime during this encounter, several other Albuquerque police officers arrived at the scene and engaged Stone and Athena Anderson in conversation. Within a few more minutes another police officer arrived with the dog. The dog circled the car, showed interest underneath the rear area of the car and at the passenger door, and then jumped in the open hatchback where he "keyed" on a duffel bag. Id. at 101, 120-121. The police then searched the entire car and the duffel bag. Id. 101-102. The bag contained approximately 33,000 methaqualone tablets. IV R. at 182.

Stone also testified at the suppression hearing. He denied that he had been speeding when he was stopped by Officer Jones. Stone said after he got the ticket at Moriarity he figured he was being followed and was very careful and set his cruise control at 55 miles per hour. He testified that his radar detector never gave an indication that radar had spotted him. II R. at 146, 149.

Stone also denied he had consented to the search of his car and said no one ever asked whether they had permission to search it. Id. at 147, 148. Stone said he opened the trunk of his car because the Officer insisted on seeing the citation he had received; he understood that he had no options at that point and that the Officers were going to get into his car. Stone said he was detained about two and a half hours in Moriarity and it was probably an hour and a half following his departure from Moriarity when he was stopped again. Id. at 147.

Stone was indicted for possession with intent to distribute methaqualone in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(C), and 18 U.S.C. Sec. 2. I R. at 1. Stone's pretrial motion to suppress the narcotics alleged that both the stop of his car and the subsequent search violated the Fourth Amendment. I R. at 5. (Motion to Suppress--Automobile Search and Supporting Authorities); I R. at 6 (Motion to Suppress--Automobile Stop and Supporting Authorities). The trial judge denied the motion. Stone was then tried before a jury and convicted. I R. at 26. Stone claims the trial court erroneously denied his motion to suppress the narcotics.

B.

At the conclusion of the suppression hearing, the trial judge orally stated his findings and conclusions in support of his ruling denying Stone's motion to suppress. II R. 153 et seq.

The judge found there were two trains of events involved. He found the second stop on Interstate 40 at Albuquerque was a legitimate traffic stop; Officer Jones' radar detected defendant traveling 65 miles per hour in a 55 mile per hour zone. The stop was not pretextual, but a legitimate traffic stop. Id. at 154.

The other train of events was initiated at Moriarty by Officer Clayton. The judge found that facts obtained by police during this train of events gave them a reasonable suspicion Stone was transporting drugs in his car, which prompted them to call for the assistance of the narcotics dog at Albuquerque. Id. at 155. When the dog was commanded to sniff the car he became interested underneath the car at the passenger side where the door was open. Then when he came to the back of the vehicle he jumped into the open hatchback. The dog keyed, the handler testified, on substances he was trained to detect, including methamphetamine and the other controlled substances. Id. at 156. The judge found that these actions by the dog gave the police probable cause to search the automobile. Id. at 55.

The judge found further that the dog's leap into the back of the car did not vitiate the seizure, regardless of whether or not it was a search. The judge found that the defendant voluntarily opened the hatchback to retrieve the citation requested by Officer Jones. Id. at 156. Then the dog came along and "on his own, apparently jumped into the back of this car and immediately found what is sought to be suppressed here." Id. at 156-157. The judge found that in these circumstances the search and seizure did not violate the Fourth Amendment. He therefore denied the motion to suppress the narcotics found in the automobile and statements made at the time of the seizure.

II

The Fourth and Fourteenth Amendments protect the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Officer Jones seized Stone and his car and the police discovered the narcotics during a search of Stone's car. Berkemer v. McCarty, 468 U.S. 420, 436-437, 104 S.Ct. 3138, 3148-3149, 82 L.Ed.2d 317 (1983) ("stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth] Amendmen[t], even though the purpose of the stop is limited and the resulting detention quite brief.") New York v. Class, 475 U.S. 106, 115, 106 S.Ct. 960, 966, 89 L.Ed.2d 81 (1986) (when police moved papers on a car's dashboard to uncover the vehicle identification number they conducted a "search" within the meaning of the Fourth Amendment). The issues presented here are whether the seizure or the search were unreasonable within the meaning of the Fourth Amendment. If either was unreasonable, the narcotics and the statements may not be used as evidence against Stone. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (evidence obtained by state Officers which violated the defendant's Fourth and Fourteenth Amendment right to be free from unreasonable searches and seizures is inadmissible in a federal criminal trial).

A. The Seizure

Stone argues that Officer Jones stopped him for speeding merely as a pretext to give the narcotics dog an opportunity to sniff his car. The district court, however, found the stop justified on an alternative ground: the police had reasonable suspicion to believe Stone was transporting narcotics. Because we hold the stop was justified by this reasonable suspicion, we need not decide whether the speeding ground was a pretext.

Police may stop and detain an automobile and its occupants if they have an articulable and reasonable suspicion that the car is carrying contraband. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d605 (1985). We agree that the Officers' actions were lawful here.

First, here the judge found there was the presence of the Patchouli oil which, it was testified, was a type of substance emitting a very strong and distinctive odor and is used to shield or mask other smells. II R. 155. The testimony of Officer Clayton supports this finding; the oil was shown to Clayton by defendant and Clayton learned it was sold and used in California, mainly to cover up the smell of marijuana. II R. 36, 52.

Second, a DEA computer indicated that Stone had been "involved in a case in Tucson." II R. 57. And upon inquiring further of the DEA office in Tucson, agent Small learned that they suspected Stone of being involved in a cocaine smuggling ring and that he associated with people who were known methamphetamine dealers. This finding is supported by the record testimony of...

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