F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 20 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-6272
(D.C. No. CR-98-20-T)
CARLTON KEITH JACKSON, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant was indicted for one count of possession with intent to distribute
cocaine powder in violation of 21 U.S.C. § 841(a)(1). He filed a motion to
suppress the evidence, arguing that the cocaine was obtained in violation of his
Fourth Amendment rights, and the district court denied the motion. Defendant
entered a guilty plea, reserving the right to appeal the denial of his motion to
suppress. Defendant now appeals the denial of his suppression motion.
Defendant was heading south on Interstate 35 in Oklahoma City on July 26,
1997. Two Oklahoma City police officers, Sargent Alexander and Captain Quick,
were traveling on that same interstate when they observed defendant’s pickup
truck straddle the lane divider for 50 to 60 yards, drift between the lane dividers,
and then abruptly move into its original lane without signaling. In observing
defendant’s vehicle, the officers could not see a rear tag. The officers then saw
defendant make an illegal lane change by signaling at the same time he changed
lanes. At that point, the officers conducted a traffic stop by turning on their
flashing lights and signaling defendant to pull over to the side of the road.
Upon approaching the driver’s side of defendant’s pickup, Officer
Alexander noticed a paper tag in the rear window and a change of clothes in the
vehicle. Defendant, the only person in the vehicle, gave Officer Alexander his
Texas driver’s license and said he did not have insurance verification because the
pickup truck was rented. Defendant produced a rental agreement that identified
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Lisa Jackson as the renter and the only authorized driver of the pickup truck.
Defendant told Officer Alexander that Lisa Jackson was his wife. According to
the rental agreement, the pickup truck should have been returned to the rental
agency on July 22, 1997, four days before the officer stopped defendant. In
questioning defendant about his travel and the rental agreement, Officer
Alexander observed that defendant was nervous, avoided eye contact, shifted
positions, and was apprehensive and anxious. Defendant told the officer he had
been to Tulsa to visit friends, but he later said he had been to visit a girlfriend.
Defendant could not provide the phone number or address of the person he had
visited.
Officer Alexander returned to his car to conduct a records and criminal
history check and write a traffic citation for defendant’s illegal lane change. The
officer also called a second car to the scene so that he could tape an interview
with defendant because defendant had been inconsistent in his answers to Officer
Alexander’s initial questioning. 1 The second car arrived quickly, and Officer
Alexander tape recorded the conversation he had with defendant in the back seat
of the second car.
1
The officers who stopped defendant had a taping device in their car, but
they had a drug-sniffing dog with them in the back seat, so they could not
interview defendant in that car.
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When asked about prior arrests, defendant said he had been arrested for
burglary. He neglected to mention his arrest for conspiracy to distribute narcotics
that the criminal history check had disclosed. When Officer Alexander asked him
about the narcotics arrest, defendant stated that the charge had been changed to
gambling. Officer Alexander asked defendant about the rental car being overdue,
and defendant said he had obtained an oral extension, although he had nothing to
substantiate an extension. When asked whether he had any guns or cash,
defendant immediately answered that he did not. When asked whether he had any
drugs, however, defendant hesitated before answering that he did not. Based on
the officer’s experience and training, the timing of defendant’s responses
indicated that defendant’s denial of possession of drugs was not truthful.
Defendant continued to be nervous throughout the interview.
Defendant never gave a direct answer when Officer Alexander repeatedly
asked him if they could search the pickup truck. When he was unable to obtain a
voluntary consent to search, Officer Alexander asked Officer Quick to have the
dog screen the exterior of the pickup truck. The dog alerted to the presence of a
controlled substance. The officers searched the vehicle and found cocaine
powder in a pillowcase in the backseat. Defendant was then arrested,
approximately thirty minutes after the initial traffic stop.
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Defendant contends both the traffic stop 2
and the scope and duration of the
detention that followed violated his Fourth Amendment right to be free from
unlawful searches and seizures. In deciding whether defendant’s constitutional
rights were violated, we consider the totality of the circumstances, and we view
the evidence in the light most favorable to the government. See United States v.
Villa-Chaparro , 115 F.3d 797, 800-01 (10th Cir.), cert. denied , 118 S. Ct. 326
(1997). We must accept the district court’s factual findings unless they are
clearly erroneous. See United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.
1998). “Judging the credibility of the witnesses, determining the weight to be
afforded the testimony, and drawing reasonable inferences and conclusions from
the testimony, are within the province of the district court.” Villa-Chapparo , 115
F.3d at 801. “The ultimate determination of reasonableness under the Fourth
Amendment is a question of law which we review de novo.” Hunnicutt , 135 F.3d
at 1348.
Stopping defendant for a traffic offense was a seizure under the Fourth
Amendment. See Villa-Chapparo , 115 F.3d at 801. There is no Fourth
Amendment violation, however, if the stop was a valid traffic stop. A traffic stop
2
Defendant states in his brief that he “contends that the encounter was
barely justified at its inception.” Appellant’s Br. at 6. To the extent, however,
that defendant goes on to argue the validity of the stop, we address the
constitutionality of the stop.
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is analogous to an investigative detention, and we analyze its reasonableness
under the standards set forth in Terry v. Ohio, 329 U.S. 1 (1968). First, we
determine “whether the officer’s action was justified at its inception,” and then
“whether it was reasonably related in scope to the circumstances which justified
the interference in the first place.” Id. at 20.
[A] traffic stop is valid under the Fourth Amendment if the stop is
based on an observed traffic violation or if the police officer has
reasonable articulable suspicion that a traffic or equipment violation
has occurred or is occurring. It is irrelevant, for purposes of Fourth
Amendment review, whether the stop in question is sufficiently
ordinary or routine according to the general practice of the police
department or the particular officer making the stop. It is also
irrelevant that the officer may have had other subjective motives for
stopping the vehicle. Our sole inquiry is whether this particular
officer had reasonable suspicion that this particular motorist violated
any one of the multitude of applicable traffic and equipment
regulations of the jurisdiction.
Villa-Chaparro , 115 F.3d at 801 (quotation omitted). The district court found
Officer Alexander’s testimony regarding his observation of defendant’s unlawful
lane change to be credible. We conclude that credibility finding by the district
court is not clearly erroneous. Based on defendant’s violation of a traffic
ordinance, the officer’s stop was lawful.
Next, we must determine whether Officer Alexander’s continued detention
of defendant was lawful. To meet the standard of reasonableness, an
officer’s actions during a detention must be reasonably related in
scope to the circumstances which justified the initial stop. . . . An
investigative detention may be expanded beyond its original purpose,
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however, if during the initial stop the detaining officer acquires
reasonable suspicion of criminal activity, that is to say the officer
must acquire a particularized and objective basis for suspecting the
particular person stopped of criminal activity.
Villa-Chaparro , 115 F.3d at 801-02 (quotations and citations omitted). There are
many factors that this court has held justified continued detention after a stop.
“In particular, the inability to offer proof of ownership or authorization to operate
the vehicle has figured prominently in many of our cases upholding further
questioning.” Hunnicutt , 135 F.3d at 1349. In this case, the pickup truck was
rented in another person’s name, the rental agreement indicated that the vehicle
was due to be returned to the rental agency four days earlier, and defendant was
not listed on the rental agreement as an authorized driver of the vehicle. In
addition to this inability to offer proof of authorization to possess and operate the
vehicle, defendant gave inconsistent answers when questioned about his trip;
Officer Alexander perceived defendant as being nervous, apprehensive, and
evasive; and defendant was deceptive about his criminal history. These factors
were sufficient to provide the officer with a particularized and objective basis for
suspecting criminal activity, permitting Officer Alexander to expand the scope
and duration of the detention beyond the initial traffic stop. Officer Alexander
did not violate defendant’s Fourth Amendment rights by detaining him for further
questioning.
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Finally, the canine sniff did not implicate defendant’s Fourth Amendment
rights because “a canine sniff of an already legitimately detained automobile is
not a ‘search’ within the meaning of the Fourth Amendment.” See id. at 1350.
Because the dog alerted to the presence of a controlled substance while defendant
was legally detained, the officers had probable cause to search the vehicle. See
United States v. Massie , 65 F.3d 843, 849 (10th Cir. 1995).
We conclude the traffic stop was valid and the officer had a reasonable
suspicion of criminal activity to justify expanding the scope and the duration of
defendant’s detention following the stop. We AFFIRM the district court’s denial
of defendant’s motion to suppress.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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