U.S. v. Worthon
| Citation | 520 F.3d 1173 |
| Decision Date | 01 April 2008 |
| Docket Number | No. 07-3122.,No. 07-3123.,07-3122.,07-3123. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Myron C. WORTHON; Anthony Michael Romero, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Rick E. Bailey, Conlee, Schmidt & Emerson, L.L.P., Wichita, Kansas, for Defendant-Appellant, Myron C. Worthon.
Brent I. Anderson, Assistant United States Attorney, (Eric F. Melgren, United States Attorney, and William R. Mott, Special Assistant United States Attorney, with him on the brief) Wichita, Kansas, for Plaintiff-Appellee United States of America in case number 07-3122.
Dwight L. Miller, Topeka, Kansas, for Defendant-Appellant Anthony Michael Romero.
Eric F. Melgren, United States Attorney and Brent I. Anderson, Assistant United States Attorney, District of Kansas, Wichita, Kansas, for Plaintiff-Appellee United States of America in case number 07-3123.
Before HENRY, Chief Judge, TACHA, and BRISCOE, Circuit Judges.*
Myron Worthon was driving a silver minivan, traveling with Anthony Michael Romero, who was a passenger in another vehicle, when Kansas state troopers stopped the cars for following other vehicles too closely. After the officers discovered 245 pounds of marijuana in the van Mr. Worthon was driving, Mr. Worthon, Mr. Romero and another co-defendant, Justin Smith, were charged with one count of possession of marijuana with intent to distribute. Mr. Worthon and Mr. Romero each filed a motion to suppress, which the district court denied, and they subsequently conditionally pleaded guilty to the charge. The district court sentenced Mr. Worthon to thirty-seven months' imprisonment, and Mr. Romero to sixty months' imprisonment, each with four years' supervised release.
Mr. Worthon and Mr. Romero now appeal the district court's denial of the motions to suppress, challenging the stop, detention, and search. We consolidate the appeals, and, for the following reasons, we affirm the district court.
On March 3, 2006, Timothy Shultz, a deputy with the Finney County, Kansas, Sheriffs Department, was at the Garden City Travel Plaza in Garden City; Kansas. Deputy Shultz was in an unmarked vehicle, and was in plain clothes. At the Travel Plaza, Mr. Worthon drove directly in front of Deputy Shultz in a silver rental minivan bearing New Jersey license plates. A silver Lexus with Arizona license plates driven by Mr. Romero (accompanied by codefendant Justin Smith) pulled behind the van and began honking its horn. The two vehicles eventually stopped in the parking lot next to each other. The drivers of the two vehicles spoke with each other briefly. Both vehicles left the parking lot together; Mr. Worthon driving the silver minivan, and Mr. Smith driving the silver Lexus, accompanied by Mr. Romero. Deputy Shultz followed. After several turns in and around Garden City, the two vehicles headed east onto U.S. Highway 50, towards Dodge City, Kansas.
Deputy Shultz was able to get the tag numbers of the two vehicles. Deputy Shultz was suspicious that the two vehicles were involved in drug trafficking due to their apparent age disparities, their actions and the vehicles' tags, one being from the northeast part of the United States and one being from the Southwest.
Deputy Shultz called the local Drug Enforcement Administration (DEA) office about what he had seen, and a DEA agent requested Deputy Shultz to continue following the two vehicles. Troopers with the Kansas Highway Patrol (KHP) were also contacted and given the description of the two vehicles.
Deputy Shultz followed the two vehicles east onto Highway 50, as they continued towards Dodge City. At one point he passed both vehicles, but ended up between the two vehicles in a moving line of traffic. While on Highway 50, the line of traffic, including Deputy Shultz, was traveling at 65 m.p.h.
A large truck in front of the line of traffic was traveling slower than 65 m.p.h., so the whole line of traffic had to slow down. In reaction to the slower pace of traffic caused by the truck, Deputy Shultz slowed down to 55 m.p.h. In the line of vehicles, a couple of cars and the Lexus followed the truck. The Lexus was a few cars in front of Deputy Shultz.
The van driven by Mr. Worthon was directly behind Deputy Shultz. Deputy Shultz estimated that at the point when the two troopers passed him going west-bound (Deputy Shultz and the defendants were going eastbound) on Highway 50, the van was within a car length to a car length and a half from the rear of his vehicle, at an approximate speed of 55 m.p.h. Deputy Shultz testified that Mr. Worthon appeared to be preparing to pass him at that time.
KHP Trooper Michael A. Racy was on Highway 50 when he was first contacted about this matter by another KHP trooper, who asked Trooper Racy to pay particular attention to a silver minivan bearing New Jersey plates and a silver Lexus with Arizona plates on Highway 50.
Trooper Racy testified that he was advised that DEA had spotted these two vehicles, and he was to stop them if he observed a traffic infraction. While traveling west-bound on Highway 50, Trooper Racy began looking for the silver minivan and the Lexus. While traveling west-bound, Trooper Racy observed the silver minivan traveling eastbound on Highway 50 following another vehicle too closely. Trooper Racy testified that the silver minivan with New Jersey plates was extremely close to the vehicle in front of it. In fact, according to his testimony, at first glance, Trooper Racy thought the van was being towed by the vehicle in front of it.
Trooper Racy testified that the silver minivan was within a car length of the vehicle in front of it. The silver minivan was traveling at approximately 55 m.p.h. Trooper Racy testified that a safe following distance, in his training and experience, was two seconds. The following distance between the van driven by Mr. Worthon and the vehicle in front of it (Deputy Shultz's vehicle) was under a half-second.
Trooper Racy turned around and caught up to the van. Trooper Racy stopped the van for a violation of Kan. Stat. Ann. § 8-1523(a). Trooper K.J. Miller also stopped the Lexus for following too closely, in violation of Kan. Stat. Ann. § 8-1523(a).
Upon stopping the van, Trooper Racy approached Mr. Worthon, and advised him that the stop was for his following too close. Mr. Worthon also stated that he thought he was too close. Trooper Racy obtained Mr. Worthon's Texas driver's license and the rental papers for the van. The van was owned by Alamo Financing, LLP, a car rental company. Mr. Worthon was not authorized to drive the rental van. The renter, and only authorized driver, was an "Albert Salas."
According to Mr. Worthon, he was going to Georgia to be deployed to Iraq. Mr. Worthon explained that he could not be included on the rental agreement as an authorized driver because he did not have a credit card. However, Trooper Racy testified he saw a "Visa debit, credit card" when Mr. Worthon opened his wallet to get his driver's license. Rec. vol. II, doc. 102, at 13.
KHP Inspector Jantz, who apparently joined the stop in progress, contacted the rental car company, which requested that he take custody of the van if the registered driver was not with it. Trooper Racy went to the van and asked Mr. Worthon to step out. Trooper Racy told him that the van was being impounded per the wishes of the owner of the vehicle. Trooper Racy issued Mr. Worthon a warning citation for following too close.
Mr. Worthon asked Trooper Racy if there was a town or a hotel close where he could take his belongings that were in the vehicle. Trooper Racy replied that he could drive Mr. Worthon to Dodge City. Trooper Racy asked if the contents of the van were Mr. Worthon's, who replied affirmatively. The trooper called a tow truck to pick up the rental company's van.
Trooper Racy advised Mr. Worthon that the troopers could put all of his belongings into the patrol vehicle for transport to town. Mr. Worthon advised Trooper Racy that was fine with him.
Trooper Racy and Inspector Jantz went up to the passenger side of the van and opened the sliding door. For officer safety, Trooper Racy began to check one of several military duffle bags for weapons or anything that could hurt the troopers in any way before unloading all of the bags from the van and loading them into his patrol vehicle. Trooper Racy grabbed one of the bags and could feel a large, hard, square block that he believed from his training and experience to be illegal drugs, given the nature, size, and feel of the block.
In all, thirteen bundles of marijuana were seized from the duffle bags, weighing approximately 245 pounds. The officers also discovered military uniforms bearing the names of both Mr. Worthon and Mr. Romero inside a couple of the duffle bags containing the marijuana. In addition, the officers noted that the van had a two-way radio that was set to channel 5. The silver Lexus also had a two-way radio set to channel 5.
At the conclusion of the motion to suppress hearing, the district court found that Mr. Romero lacked standing to challenge the stop-of the van and the search of the duffle bags. The district court further held that even if it were to find that standing was not an issue and address the matter on the merits, it would deny `the motion.
In its written order, the district court found that the trooper had legitimately stopped Mr. Worthon; the officers seized the van at the request of the rental company because no authorized driver was present; Mr. Worthon had agreed to allow the trooper to drive him to a motel; and, therefore, the trooper and Mr. Worthon would be in close contact for some time. The district court found that under these circumstances, there was a legitimate basis for feeling the duffle bag to protect officer safety. Rec. vol. I, doc. 56, at 6.
Mr. Worthon and Mr. Romero raise nearly identical issues on appeal — four challenges to the...
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