U.S. v. Wallace

• Decision Date: 23 November 2005
• Docket Number: No. 04-3435.,04-3435.
• Citation: 429 F.3d 969
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shawn A. WALLACE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

429 F.3d 969

UNITED STATES of America, Plaintiff-Appellee, v. Shawn A. WALLACE, Defendant-Appellant.

No. 04-3435.

United States Court of Appeals, Tenth Circuit.

November 23, 2005.

Christopher M. McHugh (Stephen M. Joseph with him on the briefs) of Joseph & Hollander, P.A., Wichita, KS, for Defendant-Appellant.

Brent I. Anderson, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), District of Kansas, Wichita, KS, for Plaintiff-Appellee.

Before HENRY, McKAY, and HARTZ, Circuit Judges.

McKAY, Circuit Judge.

The questions in this case revolve around the permissible scope of questioning during a traffic stop. Defendant was convicted of possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and of carrying on an unlawful activity during travel in interstate commerce, in violation of 18 U.S.C. § 1952(a)(3). Defendant filed a pretrial motion to suppress the marijuana. After an evidentiary hearing, the district court denied the motion. Reserving his right to appeal the denial of his suppression motion, Defendant subsequently pled guilty and was sentenced. He now appeals the denial of his motion to suppress and his sentence.

On December 19, 2002, Defendant and a companion were traveling on Interstate 70 in Lincoln County, Kansas. Defendant's companion was driving. They traveled in a Chevrolet Suburban towing a large trailer. A highway patrol trooper stopped the vehicle for driving 77 miles per hour in a 70 miles per hour zone.

The trooper asked the driver for his driver's license and explained to him that he was speeding. As the driver retrieved his documentation, the trooper asked him where he was coming from. He said California. The trooper asked why he had been there. The driver explained that he had attended a family wedding. The trooper asked the driver for the vehicle's registration. He explained that the Suburban had been rented by his passenger (Defendant). The trooper then asked to see the rental papers as well as Defendant's driver's license. While Defendant was producing the requested items, the trooper asked what they were hauling in the trailer. The driver said it was a dirt bike, a small motorcycle. When the trooper asked whose it was, the driver replied that it was his. The trooper explained to the two men that he wasn't going to issue a speeding ticket and that the stop would only last a few more minutes while he verified their documentation.

The trooper passed by the trailer behind the Suburban on his way back to his patrol car. As he passed the trailer, he muttered to himself, "Big trailer for a dirt bike." Rec., Vol. II, at 125. Once back in the patrol car, the trooper asked the radio dispatcher to check the driver's and Defendant's Maryland driver's licenses and to run a criminal history check on each of them. A few minutes later, the dispatcher reported that the license plate on the trailer was registered to Defendant and that he had a valid driver's license and no criminal history. The license of the driver, on the other hand, was not on file, and the dispatcher requested additional information from the trooper about the driver.

The trooper returned to the Suburban and asked the driver if he would come back to the patrol car for a few minutes. The trooper explained to the driver that they were having trouble confirming his driver's license. He complied and accompanied the trooper to the patrol car. While the two waited for the information in the front seat of the patrol car, the trooper asked the driver what he did for a living, where he had been in California, and what kind of work Defendant did. He also asked if the dirt bike was the only thing in the large trailer. When the driver said that it was, the trooper asked, "You don't have any weapons or, uh contraband, explosives or anything like that in there?" Rec., Vol. III, at 278. The driver replied that he did not. Sometime thereafter, the dispatcher reported that the driver had an arrest and/or conviction for auto theft in 1997 but was not currently wanted for anything. However, the dispatcher reported that she was still unable to get a confirmation on the driver's Maryland license. The driver volunteered that he had once had a Virginia license, and the trooper asked the dispatcher to check on that. While waiting on this request, the trooper asked whose wedding the driver had attended. He answered, "My cousin's." Rec., Vol. III, at 279. The dispatcher interrupted this conversation when she reported that the driver did not have a Virginia license but that he did possess an ID card from that state.

The trooper told the driver that if he did not have a valid driver's license, Defendant would need to take over driving. The trooper then went back to the Suburban to talk to Defendant, leaving the driver alone in the patrol car. He explained to Defendant that he might need to drive for the remainder of the trip. He also asked Defendant why he had been in California. Defendant said it was for his cousin's wedding. The trooper asked Defendant if he and the driver were related. Defendant replied that they were not, but were still "close, like cousins." Rec., Vol. III at 281. The trooper asked about their trip and how long they had stayed in California. Defendant said that they were there for a couple of days. The trooper asked what they were hauling in the trailer. Defendant said it was a motorcycle. The trooper asked, "Just one motorcycle? ... you don't have a problem with us looking in there after a bit?" Id. Defendant demurred, telling the trooper that "[his companion is] the driver. You got to ask him." Id. The trooper agreed and returned to the patrol car.

There, he asked the driver if Defendant was just a friend. He said, "No, he's my cousin." Id. at 282. The trooper examined the rental slip for the Suburban. The slip showed that the vehicle had been rented on December 13 in Bethesda, Maryland, and was to be returned there on December 20. The trooper asked the driver the brand of the motorcycle in the trailer. He hesitantly said, "Uh. It's a Yamaha." Id. The trooper asked why the men hauled the dirt bike all the way out to California. The driver explained, "It's a small bike. We got a little nephew. My cousins are out there. They have a lot of land in the back yard so we let him ride it." Id. at 283.

Another highway patrolman arrived on the scene, and the trooper indicated to him that he was suspicious of the two men. The trooper returned to the patrol car and told the driver that he was going to give him a warning but that Defendant would need to do the driving from that point on. He gave the driver his driver's license and a warning citation and said, "That's all I've got." Id. at 287. He then asked the driver, "So you don't have a problem with me checking in there, and checking your motorcycle and everything in there?" Id. The driver said, "No." Id. The trooper said, "Okay, why don't we just open up that side door [of the trailer] if you can and I'll just jump in there real quick and take a look, okay?" Id. He responded, "Okay, you ready?" Id.

The trooper and his backup entered the trailer. They observed a small motorcycle and a couple of other small items, but the trailer was mostly empty. They noted that the motorcycle was a Honda, not a Yamaha as the driver had stated. The trooper instructed his backup to check the bottom of the floor. After a brief examination of the trailer's floor, the two troopers began to suspect that there was a false compartment under it. They could see what appeared to be an enclosed space under the floor and used a tape measure to confirm that there was, in fact, a 4- to 6-inch gap between the trailer's floor and the enclosed underside of the floor. They also observed a metal piece screwed in place all the way around the inside holding the flooring down, and they saw a number of scratch marks just above the flooring tending to indicate that the floor had been removed at one point. Based on his training and experience, the trooper suspected that the men were storing contraband in this false compartment below the trailer's floor.

The trooper informed the driver and Defendant that it looked like there was a false compartment underneath the trailer's floor. He asked Defendant if he knew anything about it. Defendant stated that he did not. The trooper then asked Defendant if he had a problem with the officers getting under the floor and checking it out. Defendant replied, "Yeah, cause I don't understand why we're going through all this in the first place." Id. at 290. The trooper again explained that it looked like there was a false compartment under the trailer's floor and that this gave him probable cause to hold the trailer. Despite the Defendants' protests, the trooper called an additional highway patrolman who had a drug-sniffing dog with him and requested his assistance at the scene. The additional trooper said that he and the dog would be there in twenty to thirty minutes. The Defendants, becoming more agitated by the moment, demanded to know what the holdup was, and when they could leave. The trooper told them to take a seat, as they did not have the option of leaving. The driver and Defendant asked if they could still revoke their consent to search the trailer. The trooper told them they could not.

While the troopers waited for the drug-sniffing dog to arrive, they continued to investigate the trailer themselves. Inside it, they saw that screws in the metal piece securing the floor were marked up and stripped as though they had been removed several times. They used an electric screwdriver and attempted to remove the metal piece holding the flooring down, but were unsuccessful. The trooper asked the driver what brand the trailer was, and he stated that he did not know. The troopers then decided to call "George" at the local "Service Center" to ask him if the manufacturer made this type of trailer with a large gap...