United States v. Neff

• Decision Date: 05 June 2012
• Docket Number: No. 10–3336.,10–3336.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dennis Dean NEFF, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

681 F.3d 1134

UNITED STATES of America, Plaintiff–Appellee,

v.Dennis Dean NEFF, Defendant–Appellant.

No. 10–3336.

United States Court of Appeals,Tenth Circuit.

June 5, 2012.

Christopher Joseph, Joseph & Hollander, LLC, Topeka, KS, for Defendant–Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff–Appellee.

Before BRISCOE, Chief Judge, BALDOCK and LUCERO, Circuit Judges.

BRISCOE, Chief Judge.

Defendant–Appellant Dennis Dean Neff entered a conditional guilty plea on one count of traveling in interstate commerce with the intent to distribute cocaine, in violation of 18 U.S.C. § 1952(a)(1). He was sentenced to sixty months' incarceration. Under the terms of the plea agreement, Neff reserved his right to appeal the district court's denial of his motion to suppress evidence.

On appeal, Neff argues that the state trooper's initial stop of his vehicle was unconstitutional because the trooper lacked reasonable, articulable suspicion of criminal activity under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We conclude that the facts known to the trooper at the time of the initial stop did not rise to the level of reasonable, articulable suspicion by providing a particularized and objective basis for wrongdoing. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's denial of the motion to suppress and remand with directions to vacate Neff's conviction.

I

Around noon on July 31, 2009, Neff was driving eastbound on a rural stretch of Interstate 70 through Wabaunsee County, Kansas. He passed three signs, posted by Kansas Highway Patrol (KHP) troopers along the highway, that read “Drug Check Ahead” and “Drug Dogs in Use” in English and Spanish. In reality, there was no checkpoint on the interstate. Instead, troopers had positioned themselves near the Spring Creek Road exit ramp, just beyond the signs, to watch for vehicles attempting to evade the purported drug check. The Spring Creek Road exit leads to “a rural, gravel road speckled with residences” but no businesses. ROA, Vol. 1 at 46.

KHP Lieutenant Kirk Simone was stationed on the far side of the eastbound exit ramp, where he used binoculars to monitor vehicles that used the exit. A second officer, Trooper Brian Smith, waited on the south side of the highway near the exit to observe vehicles “as they went off the exit ramp when Lieutenant Simone called them out.” Id., Vol. 2 at 14. When Lieutenant Simone saw Neff's red Chevrolet Monte Carlo take the exit ramp, he radioed Trooper Smith to watch for the vehicle.

Trooper Smith, driving a marked patrol car, followed Neff after he took a left turn on to Spring Creek Road and began driving north. As he tailed Neff, he radioed the dispatcher to check the car's license plate number. The dispatcher responded that the tag was registered to an address in nearby Topeka, Kansas. Continuing his pursuit, the trooper followed Neff past one residential driveway before stopping to watch the car turn into a second driveway. Neff briefly stopped his car in the driveway and turned his head toward the road. Before he started to back out of the driveway, Neff looked at the trooper and gave him a “startled look.” Id. at 20. He then backed out of the driveway, turning the car back in the direction of the interstate. By this time, Trooper Smith had positioned his patrol car in the middle of the road and had gotten out of the vehicle. Now standing in the middle of the road, the trooper put out his hand to signal for Neff to stop. He had not observed Neff commit any traffic violations. Neff stopped and rolled down his window.

Trooper Smith proceeded to investigate Neff and the vehicle's two passengers.¹ Neff told the trooper that they were driving from Junction City, Kansas, where they had gone to look at a car. The trooper asked Neff to get out of the car, and he conducted a brief patdown.² Finding no weapons or contraband, the trooper continued to ask Neff questions. He explained that he thought it was odd for a car with Shawnee County tags to use the Spring Creek Road exit, implying that Neff had used the exit to avoid a drug checkpoint. Neff then volunteered, “I have a crack pipe on me.” After first calling for backup, the trooper searched the passenger compartment of the car and found nothing. He then used the car's key fob to activate the trunk release. In the trunk, he found zippered duffel bags that contained seven kilogram-sized brick-shaped objects, later determined to contain cocaine, and $10,000 in U.S. currency. The trooper placed the three occupants of the car under arrest.

A grand jury indicted Neff on two counts: (1) conspiracy to distribute and possess with the intent to distribute approximately seven kilograms of cocaine, in violation of 21 U.S.C. § 846; and (2) knowingly and intentionally possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Neff moved to suppress the admission of the evidence seized from the car. He argued that the initial stop violated his Fourth Amendment rights because (1) he had not committed a traffic violation, and (2) the trooper lacked reasonable suspicion to believe he was engaged in criminal activity. He argued that there was no “legal reason, beyond sheer speculation” for the stop. Id., Vol. 1 at 20. At the suppression hearing, Trooper Smith provided this testimony regarding the stop:

The reason I stopped him is they got off the interstate after seeing the drug check lane ahead signs, it was a Shawnee County car went into a rural Wabaunsee County area, pulling into a driveway where I don't think the vehicle belonged, the surprised look that the driver gave me, the short time that they stayed there, the surprised look that he gave me. I thought something is very suspicious about this that I didn't really care for or didn't like. Therefore, I stepped out of the vehicle when he pulled out. That's when I stopped them.

Id., Vol. 2 at 69. Following up on that testimony, the government argued that the trooper had reasonable suspicion based on two separate grounds. First, Neff was “patently evasive” when he avoided “a clearly marked drug checkpoint on I–70 by exiting the highway, and then proceeded onto a rural dirt road and randomly pulled into a private drive.” Id., Vol. 1 at 30. A “second and independent basis for stopping the vehicle” was “that the vehicle had a registration plate from Shawnee County, it was driving in a fairly secluded and rural area in Wabaunsee County, and it pulled into a private drive where it apparently had no legitimate business.” Id. at 35–36.³ The government conceded that some of these actions were consistent with innocent travel, but counsel argued that the totality of the circumstances rose to the level of reasonable suspicion.

The district court denied Neff's motion to suppress. In considering the initial stop, the court found that the totality of the circumstances were sufficient to give the trooper reasonable suspicion to justify a short investigative detention. The court gave particular credence to the rural location of the Spring Creek Road exit, concluding that “[t]his particular Exit ... had very little utility for Interstate travelers unless they were seeking to access the houses located on those particular gravel roads.” Id. at 55. In addition, Neff exhibited “uncertain driving patterns immediately after passing signs indicating a drug check.” Id. at 57. This included the fact that Neff “did not immediately loop back on to the Interstate at the first available opportunity, nor did he use the first available private driveway to turn around.” Id. at 56–57. Moreover, Neff's “license plate indicated he did not live in Wabaunsee County” and he “seemed unsettled and immediately pulled out of the private drive.” Id. at 57.

As part of a plea agreement, Neff waived his right to be charged by indictment, and the government filed an information charging Neff with one count of traveling in interstate commerce with intent to distribute cocaine, in violation of 18 U.S.C. § 1952(a)(1). Neff pleaded guilty to the charge in the information, and the charges in the indictment were dismissed on the government's motion. He preserved his right to appeal the district court's denial of his motion to suppress in a plea agreement.

II

Neff's sole argument on appeal is that the district court erred in denying his motion to suppress the evidence recovered from the trunk of the car. He contends that Trooper Smith's decision to stop the car was based on a hunch that criminal activity was afoot, not reasonable, articulable suspicion. He also argues that the district court gave undue weight to factors that are “entirely consistent with innocent travel” and “susceptible to varying interpretations.” Aplt. Br. at 13.

“On appeal from the denial of a motion to suppress, we review the district court's factual findings for clear error, its conclusions of law de novo, and view the evidence in the light most favorable to the prevailing party.” United States v. Gallegos, 314 F.3d 456, 458 (10th Cir.2002) (citing United States v. Maden, 64 F.3d 1505, 1508 (10th Cir.1995)).

A

This case presents the familiar question of what level of proof is required to establish reasonable, articulable suspicion of criminal activity. As a general matter, “police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supportedby articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868). In reviewing an investigatory stop for reasonable suspicion, we must consider “the ‘totality of the circumstances' of each case to see whether the detaining officer has a ‘particularized and objective basis' for suspecting legal wrongdoing.”...