United States v. Riley

• Decision Date: 13 July 2012
• Docket Number: No. 11–3181.,11–3181.
• Parties: UNITED STATES of America, Appellee, v. Mario RILEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

684 F.3d 758

UNITED STATES of America, Appellee,

v.Mario RILEY, Appellant.

No. 11–3181.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2012.

Filed: July 13, 2012.

Brian D. Risley, Springfield, MO, argued, for appellant.

Timothy A. Garrison, Asst. U.S. Atty., Springfield, MO, argued (Beth Phillips, U.S. Atty., Kansas City, MO, on the brief), for appellee.

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Appellant Mario Riley entered a conditional plea agreement and pled guilty to possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The district court sentenced Riley to 120 months imprisonment, followed by eight years of supervised release. As allowed by his conditional guilty plea, Riley challenges the district court's ¹ denial of his motion to suppress. We affirm.

I. Background

In the late afternoon of October 17, 2009, Missouri State Highway Patrol Trooper Kelsey Rutledge pulled over a vehicle driven by Riley on Interstate 44 in Lawrence County, Missouri after observing Riley twice cross the center line. Trooper Rutledge contacted Riley at his car and asked for Riley's driver's license and rental agreement. Rutledge then asked Riley to accompany him to his patrol car so that Rutledge could run a records check, and Riley complied.

Once in the patrol car, Trooper Rutledge began to ask Riley questions about his travel itinerary. Riley indicated that he had been driving from the Hard Rock Casino near Tulsa, Oklahoma. Rutledge asked Riley if he had been there very long. Riley responded that he had spent the night there and had left “about, probably about, a couple hours ago, about three hours ago, a couple, about a[n] hour ago, two hours ago.” Rutledge later asked what Riley thought of the hotel portion of the Hard Rock. Riley responded that “It was alright, it was cool. It's nice, it's a nice hotel....” Rutledge then asked Riley on what floor he stayed. Riley responded: “Um. Let's see. When I went there, I just played the games, I just stayed, I just stayed there for a little while. I just played the ... I just stayed a little while.” Rutledge again asked what floor Riley stayed on. Riley responded: “Ah, okay. I stayed at the, um, matter of fact, I'm gonna tell you what hotel I stayed in. I stayed in a hotel ... just like, right outside of that. I forgot the name of ... I stayed at a hotel, I think I got the hotel receipt right there in the car.”

During the course of their exchange, Trooper Rutledge observed that Riley seemed very nervous. Riley's heart rate appeared to be elevated, as Rutledge could see Riley's pulse in Riley's neck and stomach. Riley was also fidgeting, and his breathing appeared to be shallow and rapid. When Rutledge asked Riley why he appeared so nervous, Riley indicated he had never been put in the backseat of a police vehicle during a routine traffic stop. Rutledge asked Riley whether he had ever been in trouble before. Riley represented that he had been arrested once for domestic battery. However, Rutledge received information from dispatch that Riley had a criminal history of several drug violations and several felony arrests, including arrests for assaulting law enforcement.

After receiving Riley's criminal history from dispatch, Trooper Rutledge advised Riley that he believed Riley was lying and asked for consent to search his car. When Riley refused, Rutledge requested from dispatch the assistance of a drug detection dog. Neither of the two dog handlers assigned to the area were on duty, so Rutledge called one of the off-duty dog handlers from the area to come to the location of the stop. Rutledge's stop of Riley began at 3:15 p.m. The drug detection dog, accompanied by Corporal Tom Hall, did not arrive until 4:09 p.m. The drug dog twice alerted to the presence of drugs in the trunk. The officers then searched the trunk and found approximately one kilogram of cocaine.

Riley was arrested and charged with possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine. Riley filed a motion to suppress the drug evidence seized from his automobile. The district court denied the motion. Riley entered a conditional plea agreement and pled guilty, preserving his right to pursue this appeal.

II. Discussion

Riley contends the district court erred in denying his motion to suppress. “We review the district court's findings of fact for clear error, and review de novo whether the search violated the Fourth Amendment.” United States v. Peralez, 526 F.3d 1115, 1119 (8th Cir.2008). “We will affirm the denial of a suppression motion ‘unless we find that the decision is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made.’ ” United States v. Donnelly, 475 F.3d 946, 951 (8th Cir.2007) (citation omitted).

Riley claims the evidence found in the trunk of his vehicle should have been suppressed because: (1) there was no probable cause to stop Riley; (2) there was no reasonable suspicion to detain Riley to search his vehicle; (3) Trooper Rutledge's method of questioning amounted to an unreasonable search; (4) the amount of time Riley was delayed for the drug detection dog was unreasonable; and (5) the search exceeded the proper scope of investigation. We address each argument in turn.

A. There was probable cause to stop Riley.

“A traffic stop constitutes a seizure under the Fourth Amendment. An officer who observes a violation of the law has probable cause to initiate a traffic stop, and such a stop comports with the Fourth Amendment.” Peralez, 526 F.3d at 1119 (internal citation omitted).

Riley first contends there is no evidence to support Trooper Rutledge's testimony that Riley was pulled over for weaving across the highway center line. Riley is correct that there is no video evidence to show that he was weaving, as Rutledge acknowledged at the suppression hearing that the camera in his patrol car was not turned on when he first observed Riley's vehicle. However, Rutledge testified that he conducted the initial stop because Riley was weaving. Rutledge's testimony is consistent with the portion of the traffic stop captured on video. The video shows Riley asked: “Did it look like I was swerving?” Rutledge responded: “I didn't know if you were messing with your phone or something or what. I'm not sure. I don't know, maybe you're getting sleepy.” Soon after, Riley stated: “Well, I was wondering why you pulled me over.” Rutledge responded: “Well, I told you. I told you.” The district court was in a position to weigh the credibility of Rutledge's testimony, and we find no clear error in the district court's choice to credit Rutledge's account of the events that led to the traffic stop. See United States v. Mendoza, 677 F.3d 822, 827 (8th Cir.2012) (“[W]hen the trial judge's credibility determination is based upon ‘a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.’ ” (citation omitted)).

B. There was reasonable suspicion to detain Riley in order to search his vehicle.

Riley next contends Trooper Rutledge lacked reasonable suspicion to detain Riley in order to search Riley's vehicle. “For purposes of constitutional analysis, a traffic stop is characterized as an investigative detention, rather than a custodial arrest. As such, a traffic stop is governed by the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).” United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001) (internal citation omitted). Our court has previously opined as to the Terry stop analysis:

Only when an officer develops a reasonable, articulable suspicion that criminal activity is afoot does he have justification for a greater intrusion unrelated to the traffic offense. This requires that the officer's suspicion be based upon particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed. In evaluating whether a set of facts would give rise to reasonable suspicion, this court must look at the totality of the circumstances and not just each independent fact standing alone. Furthermore, the court may consider any added meaning that certain conduct might suggest to experienced officers in the field, trained in the observation of criminal activity.

Jones, 269 F.3d at 927 (citations and alteration marks omitted). “While ‘reasonable suspicion’ must be more than an inchoate ‘hunch,’ the Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory stop.” United States v. Fuse, 391 F.3d 924, 929 (8th Cir.2004).

In the instant case, after Rutledge received Riley's criminal history from dispatch, Rutledge advised Riley that he did not believe that Riley was telling him the truth and asked for consent to search Riley's car. When Riley refused consent and asked why Rutledge would want to search, Rutledge informed Riley that he believed that drugs were in the trunk of the vehicle. Rutledge thus articulated more than a minimal justification for the stop, as he clearly articulated the exact suspicion that caused him to detain Riley.

In its order denying Riley's motion to suppress, the district court determined Trooper Rutledge's suspicion was reasonable. The district court found that Rutledge made several observations during his initial investigation of Riley's traffic violation that supported Rutledge's suspicion that criminal activity was afoot. First, Riley exhibited undue nervousness in the form of a visibly elevated heart rate, shallow breathing, and repetitive gesticulations, such as “wiping his face and scratching his head.” Second,...