U.S. v. Winder

Decision Date24 February 2009
Docket NumberNo. 07-6208.,07-6208.
Citation557 F.3d 1129
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Willie Earl WINDER, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Dennis Caruso, Caruso Law Firm, P.C., Tulsa, OK, for Appellant.

Edward J. Kumiega, Assistant United States Attorney (John C. Richter, United States Attorney, with him on the briefs), Oklahoma City, OK, for Appellee.

Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.

BALDOCK, Circuit Judge.

After chasing down the van Defendant Willie Earl Winder was driving, a police officer located guns, drugs, and other paraphernalia in the vehicle. A grand jury subsequently charged Defendant with (1) possessing approximately 169.4 grams of a detectable amount of marijuana, with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) possessing 2.39 grams of a substance containing cocaine base, with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (3) carrying two firearms during and in relation to a federal drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) being a felon in possession of two firearms, in violation of 18 U.S.C. § 922(g)(1). After a two-day trial, a petit jury convicted Defendant on all counts. The district court sentenced Defendant to 324 months imprisonment; twenty-four concurrent months on Counts I, II, and IV, and a consecutive sentence of three hundred months on Count III.

Defendant now raises three issues on appeal. First, Defendant argues the district court erred in denying his motion to suppress the evidence recovered from the van. Second, Defendant suggests that the United States Sentencing Commission's retroactive two-level reduction in the United States Sentencing Guidelines' (the Guidelines) base offense levels for crack cocaine-related offenses, see United States v. Rhodes, 549 F.3d 833, 835 (10th Cir. 2008), requires that we remand for resentencing. Third, Defendant contests the sufficiency of the evidence supporting his convictions on Counts I through III. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Finding no merit to Defendant's contentions, we affirm.


Consistent with our standard of review, we proceed to summarize the facts of this case in the light most favorable to the Government. See United States v. Bowen, 527 F.3d 1065, 1069 (10th Cir.2008) (acknowledging that we "review the sufficiency of the evidence in the light most favorable to the Government."); United States v. Williams, 271 F.3d 1262, 1266 (10th Cir.2001) (noting that we accept the district court's factual findings "unless they are clearly erroneous" and construe the evidence in the "light most favorable" to the district court's ruling). In December 2005, Officer Justin Barton parked his patrol car, calibrated his radar gun, and proceeded to monitor the speed of adjacent traffic. A red van, driven by Defendant, approached Officer Barton's position, traveling forty-eight to forty-nine miles per hour, on a road with a posted speed limit of forty miles per hour. Local police department policy permitted Officer Barton to stop any vehicle traveling over the posted speed limit, but he was instructed not to ticket drivers traveling less than ten miles per hour over that barrier.

As the van approached, Officer Barton thought he observed Defendant slightly hunched over the wheel of his vehicle; at the same time, he was unable to locate a shoulder strap on Defendant's person. In Officer's Barton experience, a shoulder strap was visible on ninety-nine percent of drivers who leaned forward while operating their vehicles. The officer thus concluded that Defendant was not wearing his seat belt. Consequently, Officer Barton activated his patrol car's lights and began to pull onto the road behind Defendant. The van emitted a puff of smoke, associated with rapid acceleration, and began to speed away from the patrol car. Officer Barton activated his siren and proceeded to give chase. While in pursuit, Officer Barton's patrol car reached a speed of approximately one hundred miles per hour, as he observed Defendant improperly cross lanes, and run at least one stop sign. The van eventually pulled into a trailer park—going airborne over a large speed bump near the park's entrance—and stopped when it became hemmed against a wall.

As Officer Barton began to exit the patrol car and unholster his weapon, he observed Defendant emerging from the van with a shiny object in his right hand. Officer Barton yelled for Defendant to drop the object or he would "kill him." Defendant complied by dropping the object on the floorboard of the van. Subsequently, Officer Barton handcuffed Defendant, who appeared to be intoxicated, and placed him in the back of his patrol car.

A search of the van, which smelt of burnt marijuana, uncovered a .22 caliber semiautomatic handgun on the driver's side floorboard, as well as a bottle of alcohol. In the van's interior, Officer Barton found a partially unzipped black bag, eventually determined to be a gun case, in between the front driver's and passenger's seats, as well as an empty holster, two baggies containing marijuana, one baggy containing crack cocaine, two one-dollar bills, a photograph of Defendant with a group of unknown persons, a handcuff key, ammunition, empty baggies of various sizes, a folding knife, and an electronic scale. The van's glove box contained a .22 caliber double barreled handgun, and twelve baggies containing marijuana. Subsequently, authorities located $142.97 on Defendant's person. Registration records revealed that the van Defendant was driving belonged to his wife.

Officer Barton booked Defendant at the local police department and read him his Miranda rights. Subsequently, Defendant agreed to speak with Officer Barton. Defendant was visibly upset after his arrest. He acknowledged that the photograph belonged to him but denied ownership of the black gun case, as well as any plans to sell the drugs in the van, explaining that they were for his personal use. When questioned about the gun Officer Barton believed he had seen in Defendant's right hand when he exited his vehicle, Defendant made a comment to the effect that, in California, he could have shot Officer Barton and no one would have missed him.


We first address Defendant's claim that the district court should have suppressed the evidence found in the van because Officer Barton's stop of Defendant's vehicle violated the Fourth Amendment's ban on unreasonable seizures. See United States v. Maddox, 388 F.3d 1356, 1361 (10th Cir.2004) (noting that the Fourth Amendment's protection against unreasonable seizures includes "seizure of the person" and that "evidence obtained as a result of an illegal seizure is subject to the exclusionary rule"). On appeal, we consider the totality of the circumstances in reviewing a district court's suppression ruling de novo. See Williams, 271 F.3d at 1266. Ours is, however, a deferential sort of de novo review. See United States v. Santos, 403 F.3d 1120, 1124-25 (10th Cir. 2005). Not only do we accept the district court's factual findings unless they are clearly erroneous, but we also construe the evidence in the light most favorable to the district court's ruling. See Williams, 271 F.3d at 1266. We also defer to all reasonable inferences made by law enforcement officers in light of their professional experience. See United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


In analyzing the constitutionality of a traffic stop under the Fourth Amendment, we apply the "reasonable suspicion" standard for investigative detentions originally set forth in Terry v. Ohio. See United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc). The Terry standard applies to our review of the reasonableness of a traffic stop "regardless of whether the stop is based on probable cause or on some lesser suspicion." United States v. Holt, 264 F.3d 1215, 1230 (10th Cir.2001) (en banc). To justify a Terry stop the detaining officer must have, based on all the circumstances, a "particularized and objective basis for suspecting" the person stopped of "criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

Our analysis under Terry is two-fold. First, we ask whether an officer's stop of a vehicle was "justified at its inception." United States v. Valenzuela, 494 F.3d 886, 888 (10th Cir.2007); see also Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1206 (10th Cir.2006) (noting that this prong puts "law enforcement officers on notice that seizures without any legal justification ... violate the Fourth Amendment"). A traffic stop is justified at its inception if an officer has (1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that a particular motorist has violated any of the traffic or equipment regulations of the jurisdiction. See United States v. Martinez, 512 F.3d 1268, 1272 (10th Cir.2008). For reasonable suspicion to exist, an officer "need not rule out the possibility of innocent conduct;" he or she simply must possess "some minimal level of objective justification" for making the stop. United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.2004). Evidence falling "considerably short" of a preponderance satisfies this standard. Arvizu, 534 U.S. at 274, 122 S.Ct. 744. Second, if a traffic stop was justified at its inception, we determine whether "the resulting detention was reasonably related in scope to the circumstances that justified the stop in the first place." Valenzuela, 494 F.3d at 888. "Generally, an investigative detention must last no longer than is necessary to effectuate the purpose of the stop." United States v. Cervine, 347 F.3d 865, 870-71 (10th Cir.2003).

We have long since rejected the notion that an officer's...

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