United States v. Poulack, 00-1595

• Decision Date: 16 October 2000
• Docket Number: No. 00-1595,00-1595
• Citation: 236 F.3d 932
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. KERRY POULACK, DEFENDANT - APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 932

236 F.3d 932 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. KERRY POULACK, DEFENDANT - APPELLANT.

No. 00-1595

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: October 16, 2000

Filed: January 9, 2001

Appeal from the United States District Court for the District of Nebraska. [Copyrighted Material Omitted]

Before Hansen, Murphy, and Bye, Circuit Judges.

Murphy, Circuit Judge.

Kerry Poulack rented a truck that was stopped for a traffic violation on an interstate highway in Nebraska. A large amount of marijuana was discovered in sealed boxes in the truck, and after Poulack's pretrial motion to suppress the evidence was denied, he stipulated at trial that the quantity of marijuana in the boxes was 77.1 kilograms. The jury convicted him of possession with intent to distribute marijuana, in violation of 21 U.S.C. 841(a)(1), and of conspiracy to distribute marijuana, in violation of 21 U.S.C. 846, and the district court ¹ sentenced him to 210 months. Poulack appeals his conviction and his sentence. We affirm.

On February 9, 1999, Nebraska State Trooper Russell Stanczyk observed a rental truck on Interstate 80 with Arizona license plates which was driving too closely to the vehicle in front of it. He stopped the truck and motioned the driver, Charles Guarino, to come back to his patrol car. Guarino gave Stanczyk his driver license and sat in the patrol car while Stanczyk checked the license and filled out a warning ticket. Stanczyk asked Guarino where he was going. Guarino replied that he had an unsuccessful computer business and that he was in the process of moving computer equipment back to Boston with the assistance of his cousin Kerry Poulack, who was in the passenger seat of the truck.

Stanczyk's suspicions were aroused during this conversation because Guarino seemed overly friendly and nervous, initiating a conversation about hair lines and sunglasses. Guarino said that the truck had been rented in Arizona, and Stanczyk asked if he could look at the rental agreement. Guarino replied that Poulack had the contract. Stanczyk went over to the truck, where Poulack gave him the rental agreement and his driver license. Stanczyk returned to the patrol car and ran a check on Poulack's license and found that Poulack had an extensive criminal record. After Stanczyk gave Guarino both driver licenses, the rental agreement, and the warning ticket, Guarino started to leave the patrol car. Stanczyk asked if he would answer a few more questions, and the magistrate judge found that Guarino consented to do so.

In answering Stanczyk's additional questions, Guarino said that the truck was carrying computer equipment, that Poulack had rented the truck because he had been closer to the rental office, that Poulack was in control of the truck because he had rented it, but that all the contents belonged to Guarino except for Poulack's overnight bag. At this point Stanczyk observed another trooper passing on the highway and radioed him to request his assistance. Stanczyk later testified that he did not ask Guarino if he could search the truck because he had said it was controlled by Poulack. ² When the second trooper arrived, Stanczyk went over to the truck to talk to Poulack.

Stanczyk returned Poulack's license and rental agreement and then asked him several questions. Poulack said that he had control of the truck, that he had rented it, and that the cargo was computer equipment. Stanczyk testified that Poulack told him he could search the truck. Poulack testified to the contrary, but the magistrate judge found Stanczyk to be more credible. At Stanczyk's request, Poulack produced a key to the padlock on the back of the truck and opened the rear door. Inside were a number of taped boxes. Stanczyk picked one up and noticed that it was light for its size and alleged contents. He opened the box and found a container of marijuana under a layer of packing peanuts. Stanczyk then motioned to the other officer to arrest Poulack. After Guarino and Poulack were arrested, they were searched. Each was carrying approximately $2,000 in cash.

Before trial both Poulack and Guarino moved to suppress the marijuana on the grounds that the search had violated the Fourth Amendment. The district court granted Guarino's motion after finding that Guarino had not consented to the search and that Poulack did not have actual or apparent authority to consent for him. Poulack's motion was denied because he had consented to the search of the truck and he did not have a legitimate expectation of privacy to object to the search of boxes he said belonged to Guarino.

After a jury returned a guilty verdict on both counts of the indictment, Poulack unsuccessfully moved for a judgment of acquittal or a new trial. Poulack had stipulated at trial that the weight of the marijuana was 77.1 kilograms and had agreed to admission of a lab report that identified the drug and its weight. The district court found that Poulack had possessed 77.1 kilograms of marijuana and concluded that under 21 U.S.C. 841(b)(1)(C) he was subject to a maximum sentence of 20 years. Because Poulack was a career offender, with a criminal history that included convictions for larceny, bank robbery, assault with intent to kill, and possession with intent to distribute cocaine, he was placed in criminal history category VI with an adjusted offense level of 32. See United States Sentencing Commission, Guidelines Manual, 4B1.1 (Nov. 2000). The sentencing range was found to be 210 to 262 months, and the court sentenced him at the low point of the range.

On appeal Poulack argues that the marijuana should have been excluded because the search exceeded the permitted scope of a traffic stop, that there was insufficient evidence that he knew marijuana was in the boxes, and that he could not have possessed the marijuana when he was without standing to object to the search. He also requested and received permission to file a supplemental brief arguing that the Supreme Court decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), entitles him to be resentenced. He argues that the maximum sentence he faced depended upon the amount of marijuana found to be in his possession, that the amount was not charged in the indictment or determined by the jury, and that the district court sentenced him on the basis of its own finding of the amount of marijuana.

The government asserts that the marijuana was properly admitted because Poulack had consented to the search, that there was sufficient evidence that he was aware of the contents of the boxes, and that the issue of possession as an element of an offense is distinct from standing under the Fourth Amendment. It says Apprendi does not entitle Poulack to a sentence reduction because he stipulated to the amount of marijuana he was alleged to control.

An officer making a traffic stop does not violate the Fourth Amendment by asking the driver his destination and purpose, checking the license and registration, or requesting the driver to step over to the patrol car. See United States v. Ramos 42 F.3d 1160, 1163 (8th Cir. 1994). If the officer develops a reasonable, articulable suspicion of criminal activity beyond the reason for the traffic stop, the officer may expand the scope of the inquiry and detain the occupants of the automobile for further investigation. See United States v. Carrate, 122 F.3d 666, 668 (8th Cir. 1997). Whether the officer had reasonable suspicion to expand the scope of the stop is determined by looking at "the totality of the circumstances, in light of the officer's experience." See id. (citations and quotes omitted). Stanczyk's suspicion of illegal activity was reasonable as the circumstances unfolded. Guarino was oddly friendly and nervous, and although he claimed he was moving computer equipment from his business, Poulack had rented the truck and had control over it. Poulack had an extensive criminal record, and both men claimed that Guarino had sole possession of the boxes even though Poulack controlled the truck. The trooper had sufficient reason and justification to ask to search the truck. See United States v. Pereira-Munoz, 59 F.3d 788, 791-92 (8th Cir. 1995) (citing cases where reasonable suspicion supported a request to search).

A finding that consent to search was voluntary is reviewed for clear error. See Carrate, 122 F.3d at 670 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)). The district court did not err in finding Poulack's consent to be voluntary, considering the eleven factors identified in United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990). Poulack's age, sobriety, and criminal history support the contention that Poulack consented to the search. He was detained for a short time, was not threatened or intimidated by the officers, the officers did not make promises or misrepresentations to him, he was not under arrest when the search occurred, he was not in a secluded place, and he did not object, but stood by silently while the search took place. The marijuana was properly admitted because Stanczyk received Poulack's voluntary consent to search after an expanded traffic stop supported by reasonable suspicion.

Poulack argues that there was no evidence to show that he knew what was in the boxes, that there was no fingerprint evidence or direct evidence that he had helped pack the boxes. Reversal for insufficiency of evidence is appropriate if the evidence viewed in the light most favorable to the government is such that a reasonable jury must have harbored a reasonable doubt that the defendant was guilty. See United States v. Martinez, 168 F.3d 1043, 1047 (8th Cir. 1999). The government may show that a defendant knowingly possessed contraband by showing constructive possession, which is "'ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed.'" See United States v. Brett, 872 F.2d...