United States v. Richmond, 020819 FED5, 17-40299

Docket Nº:17-40299
Opinion Judge:GREGG COSTA, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. JENNIFER LYNN RICHMOND, Defendant-Appellant
Judge Panel:Before GRAVES and COSTA, Circuit Judges and BENNETT, District Judge.
Case Date:February 08, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

JENNIFER LYNN RICHMOND, Defendant-Appellant

No. 17-40299

United States Court of Appeals, Fifth Circuit

February 8, 2019

Appeal from the United States District Court for the Southern District of Texas

Before GRAVES and COSTA, Circuit Judges and BENNETT, District Judge. [*]

GREGG COSTA, CIRCUIT JUDGE.

During a traffic stop, a state trooper pushed his fingers against the vehicle's tire to try and confirm his suspicion that it contained more than just air. We conclude that the brief physical examination of the tire was subject to the Fourth Amendment under the recently revived trespass test for deciding what is a search. The search was a reasonable one, however, because there was probable cause to believe the loose tire posed a safety risk.

I.

A

Texas State Trooper Manuel Gonzales was patrolling U.S. Highway 77 in south Texas when he saw a blue pickup Jennifer Richmond was driving. He drove alongside the truck and saw that the tires were "shaking," "wobbly," and "unbalanced." He was concerned that the tires were a potential danger to the public. After the truck drove across the fog line between the right lane and the shoulder of the highway, Gonzales initiated a traffic stop. When the vehicle came to a stop, Gonzales saw that one of the truck's brake lights was broken. He ran the license plate and learned the truck was registered two days earlier in nearby Brownsville.

When he approached the vehicle, Gonzales explained the reason for the stop-that Richmond crossed the fog line-and also told her about the brake light. Richmond apologized and, without prompting, stated that she was from Arizona. She avoided eye contact, and Gonzales noticed that her hands were "trembling," her mouth was "dry," and her lips had "a white coating."

In response to questioning, Richmond said that she was from Tucson but was traveling to Brownsville, where she was moving with her husband. Gonzales asked Richmond to exit the truck so that he could show her the broken brake light. Richmond complied.

As Gonzales walked to the rear of the truck, he looked at the passenger-side rear tire and observed that the bolts "had been stripped as [if] they had been taken off numerous times."

This is when the challenged conduct occurred. Gonzales pushed on the tire with his hand. The resulting sound was not what "a normal tire with air" would produce; instead there was a "solid thumping noise" that indicated something besides air was inside. Gonzales, who already was concerned about the tires because he had seen them bouncing before the stop, became more suspicious that they might contain drugs.

After tapping the tire, Gonzales resumed asking Richmond about her personal history and itinerary. She could not readily recall her age, date of birth, or husband's name. Richmond asserted that she was traveling to Dallas to visit a friend, but did not know the friend's phone number or address. Stranger still, she said she intended to use Google to learn the friend's address and would return home if that search came up empty.

When Gonzales went back to his car to check Richmond's license and the vehicle's registration, he discovered that, contrary to her story about driving from Arizona, the truck had entered Mexico the day before. It had crossed back into the United States only a few hours before the traffic stop.

Gonzalez then obtained Richmond's consent to search the truck. After finding suspicious items inside the vehicle, Gonzales "let some air out [of the tires] and [ ] smelled some kind of chemical cleaning odor coming out of them." At least one of the tires did not release air. Gonzales checked beneath the truck and saw "fingerprints [ ] on the inside of . . . the rims" and an atypical amount of weight placed on the tires to try to balance them. When he removed the tires, they seemed unusually heavy and solid.

Gonzales decided to take the truck to a local car dealership and have the tires examined. Technicians at the dealership discovered secret compartments that contained methamphetamine.

B

After being charged with trafficking that meth, Richmond tried to suppress its discovery. She challenged the lawfulness of the stop and its length. The district court rejected those arguments, concluding that reasonable suspicion of a traffic violation supported the stop and that Richmond's suspicious statements and demeanor raised sufficient concerns about drug trafficking to support extending the stop for the additional time that resulted in her consenting to the search.

After the motion was denied, Richmond entered a guilty plea that allowed her to appeal the suppression ruling. Before sentencing, Richmond filed an amended motion to suppress that argued for the first time that Gonzales's tap of her tire was a search not supported by probable cause. At the sentencing hearing, the district court considered but rejected Richmond's amended motion because "as the law stands now, tapping tires is not a search." The district court noted that it would permit Richmond to appeal the tire tap issue along with her original Fourth Amendment claims in light of her conditional guilty plea.

II.

Richmond no longer challenges the initial stop or that there was reasonable suspicion of drug trafficking to extend the stop until the point when Gonzales physically examined the tire. And in not challenging events after Gonzales learned that the tire likely contained more than just air, Richmond apparently acknowledges that discovery justified further investigation into the trafficking up until when she consented to a full search.1

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