F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-5058
v. (D.C. No. 01-CR-116-C)
(N.D. Oklahoma)
DONALD RAY CARTER,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, ANDERSON and O’BRIEN, Circuit Judges.
Donald Ray Carter pled guilty to one count of possessing a firearm and
ammunition after a former felony conviction, in violation of 18 U.S.C. § 922(g),
reserving his right to appeal the denial of his motion to suppress evidence
obtained as a result of a traffic stop and a subsequent search of two residences.
Pursuant to that reservation, he brought this appeal. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and AFFIRM.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
I. B ACKGROUND
Carter was charged with a violation of 18 U.S.C. § 922(g)(1), Possession of
a Firearm after Former Conviction of a Felony. He was also subject to the
provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Carter filed a
motion to suppress evidence obtained in searches of his person, his vehicle, and
two residences. The search of the residences occurred after the issuance of search
warrants. The district court denied Carter’s motion to suppress, and on January
10, 2002, Carter entered a guilty plea under the condition that the ruling on the
suppression motion could be appealed to this court. On April 25, 2002, Carter
was sentenced to 192 months in prison, five years supervised release, a $5,000
fine, and a $100 special monetary assessment.
A. Traffic Stop
The circumstances leading to the present appeal began when Officer Laurel
Ledbetter – a narcotics officers with the Tulsa Police Department (TPD) –
received information from a confidential informant that lead her to suspect that
Carter was involved in the sale of cocaine. Based on the informant’s information,
Officer Ledbetter decided to conduct surveillance of the address provided by the
informant.
While conducting surveillance on the evening of August 27, 2001, Officer
Ledbetter observed Carter leave his residence, get into a silver Suburban bearing
-2-
the tag number provided by the informant, drive to the park, meet with another
vehicle, and engage in what Officer Ledbetter believed to be a narcotics
transaction. When Carter left the park, Officer Ledbetter lost sight of the silver
Suburban and subsequently asked Officer Craig LaGrone – another TPD officer –
to assist in stopping Carter’s vehicle.
The traffic stop occurred later that day, when Officer LaGrone stopped
Carter for a traffic violation. Officer LaGrone testified that he paced Carter’s
vehicle and determined that Carter was exceeding the posted speed limit by 10
miles per hour. After learning of the traffic stop, Officer Ledbetter proceeded to
the location and arrived within 10 minutes of the stop. Officer Ledbetter was
accompanied by Officer David Wamsley – a TPD K-9 handler– and Officer
Wamsley’s drug dog, Sid.
Officer LaGrone testified at the suppression hearing that he advised Carter
that he had stopped him for speeding and asked for his driver’s license,
registration, and insurance verification. Officer LaGrone testified that Carter
produced satisfactory evidence of his right to drive the vehicle, but he was unsure
whether Carter produced a driver’s license. According to Officer LaGrone, Carter
was extraordinarily nervous, “his coordination was not the greatest,” he “wasn’t
real coherent with his answers,” and his speech was “slowed.”
Because of his strange behavior, Officer LaGrone was concerned that
-3-
Carter was intoxicated. He asked Carter to exit the vehicle to get a better idea of
why he was behaving abnormally. Officer LaGrone testified that, prior to
performing any field sobriety tests, he patted down Carter’s clothing, then asked
him to consent to a more thorough search of his person. Officer LaGrone testified
that Carter consented to this search. Carter disputes this fact. Officer LaGrone
then removed the contents of Carter’s pockets, which included six twenty-dollar
bills. According to Officer Ledbetter, this is the going rate for an “eightball”
(one eighth of an ounce) of crack cocaine.
Upon determining that Carter did not have the signs of alcohol intoxication,
Officer LaGrone remained concerned about Carter’s abnormal behavior. He
asked Officer Ledbetter to conduct tests to determine whether Carter was under
the influence of any drugs. Officer Ledbetter performed three separate tests for
drug intoxication, then reported to Officer LaGrone that Carter was not under the
influence of intoxicating drugs. Officer LaGrone then continued the process of
issuing a traffic citation.
While the officers were conducting the field sobriety tests, the canine unit
prepared to conduct a “sniff” of the vehicle. Prior to the issuance of the citation,
the drug dog indicated the presence of drugs in the vehicle. After the K-9 unit
alerted on both the outside and the inside of the vehicle, officers conducted a
hand search. Officer Ledbetter testified that a small quantity of what field-tested
-4-
to be cocaine was located on the driver’s seat of the vehicle.
There was some dispute at the suppression hearing as to the time lapse
between the initial stop and the point at which the drug dog alerted to the
presence of drugs. The district court concluded that approximately 25 minutes
elapsed from the initial stop to the dog’s alert. The district court ruled that this
time period was not an unreasonable delay, stating that the police officers should
be “congratulated” for their efforts to determine if Carter was intoxicated. The
district court denied the defendant’s motion to suppress.
B. Search of the Residences
1. North Main Street Affidavit
Officer Ledbetter sought a search warrant for Carter’s residence at 1539
North Main Street. In the affidavit for the search warrant, Officer Ledbetter
reported information previously provided by a confidential informant. According
to the affidavit, the confidential informant told Officer Ledbetter that a person
known to the informant as “Bo Money” was selling drugs from his vehicle. The
informant provided the officer with a description of “Bo Money,” the vehicle he
would be driving, and the tag number of that vehicle. The informant also told
Officer Ledbetter that “Bo Money” resided at 1539 North Main Street and stored
large sums of currency and drugs at his residence.
In addition to the information from the confidential informant, Officer
-5-
Ledbetter included information about the transaction in the park and the traffic
stop resulting in the discovery of money on Carter’s person and drugs in Carter’s
vehicle. Lastly, she noted that Carter had used the name “Bo Money” in the past.
Based upon this information, a search warrant was issued for Carter’s residence at
1539 North Main Street. The search resulted in the discovery of a small quantity
of cocaine and six firearms.
2. Cheyenne Avenue Affidavit
After conducting a search at 1539 North Main Street, Officer Ledbetter
sought a search warrant for another location connected with Carter. The affidavit
in support of the search warrant for the Cheyenne Avenue location is less
extensive, merely requesting a warrant to search another residence for large
quantities of drugs. The affidavit states that the search of the North Main Street
address produced an electric bill listing the Cheyenne address and showing
Elizabeth Kaye Carter as the holder of electric service. It notes that (1) Officer
Ledbetter had driven by the residence and noted that it had barred doors and
windows, which drug dealers often use to protect drugs and/or money, (2) one of
Carter’s vehicles was parked in front of the residence, (3) a small quantity of
cocaine was found at the North Main Street residence, and (4) individuals who
engage in the sale of illegal substances often keep their drugs at a secondary
location. Based upon this information, a search warrant was issued for the
-6-
Cheyenne Avenue location. At this location, the officers found drug residue, drug
paraphernalia, and another firearm.
II. D ISCUSSION
Carter alleges that the district court erred in denying his motion to suppress
for the following reasons. First, the search warrants were tainted because they
were based on information derived from an unconstitutional search of Carter’s
person and his vehicle. Second, the search warrants were not supported by
probable cause. Third, the good-faith exception announced in United States v.
Leon, 468 U.S. 897 (1984), does not apply.
A. Standard of Review
In reviewing Carter’s Fourth Amendment suppression claim, we will uphold
the factual findings of the trial court unless they are clearly erroneous. United
States v. Smith, 63 F.3d 956, 960 (10th Cir. 1995) (citation omitted). We view
the evidence in the light most favorable to the district court’s ruling. Id. In
determining whether probable cause supported a search warrant, we give
considerable deference to the initial determination, unless the affidavit provides
no substantial basis for probable cause. Id. (citation omitted). The ultimate
question whether Fourth Amendment rights have been violated is an issue of law,
which we review de novo. Id. (citation omitted).
B. Whether the Search of Carter’s Person and Vehicle Was Proper
-7-
A routine traffic stop is a seizure within the meaning of the Fourth
Amendment, United States v. Anderson, 106 F.2d 942, 945 (10th Cir. 1997),
although it is characterized as an investigative detention rather than a custodial
arrest, Berkemer v. McCarty, 468 U.S. 420, 437-39 (1984). We consider the
reasonableness of an investigative detention under the principles announced in
Terry v. Ohio, 392 U.S. 1, 19-20 (1968).
To determine whether a traffic stop violates the Fourth Amendment, we
must determine whether the stop was based on an observed traffic violation or
reasonable, articulable suspicion that a traffic or equipment violation has occurred
or is occurring. United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.
1995). It is not relevant to our Fourth Amendment review that the officer may
have had other subjective motives for stopping the vehicle. Id. The sole inquiry
is whether the officer had reasonable suspicion that the particular motorist
violated any one of the numerous applicable traffic or equipment regulations. Id.
In this case, Officer LaGrone personally observed Carter operate a vehicle while
speeding. Thus, the initial stop was proper.
Having determined that the officer’s initial stop was proper, we must now
determine whether the officer’s actions exceeded the scope of the initial stop,
which was for a speeding violation. Detention beyond the purpose of the original
stop is permissible in only two instances: (1) when the officer, during the course
-8-
of the stop, develops “an objectively reasonable and articulable suspicion” that
the driver is breaking the law; or (2) when the driver consents to additional
questioning. United States v. Elliot, 107 F.3d 810, 813 (10th Cir. 1997). If we
determine that the officers’ actions exceeded the scope of the stop, then we must
determine whether one of the two above mentioned exceptions apply.
Carter alleges that Officer LaGrone exceeded the scope of the stop in two
ways: first, by conducting the field sobriety tests; and second, by asking Carter
additional questions after completing the field sobriety tests. As to the first
contention, while we agree that these tests exceeded the scope of the initial stop,
we disagree with Carter’s suggestion that Officer LaGrone was acting without
reasonable suspicion. According to Officer LaGrone, Carter was extraordinarily
nervous; “his coordination was not the greatest;” he “wasn’t real coherent with
his answers;” and his speech was “slowed.” Based on this information, Officer
LaGrone had a reasonable and articulable suspicion that Carter was under the
influence of alcohol or drugs. Thus, Officer LaGrone was justified in going
beyond the scope of the initial stop to determine whether Carter was under the
influence of alcohol or illegal drugs. The record indicates that after determining
Carter was not under the influence of alcohol, Officer LaGrone was still
concerned about Carter’s abnormal behavior. He asked Officer Ledbetter – who
was already present at the scene – to conduct tests to determine if Carter was
-9-
under the influence of any drugs. This, too, was justified by Officer LaGrone’s
continuing suspicion that Carter was under the influence of an illegal substance.
Carter next alleges that Officer LaGrone exceeded the scope of the initial
stop by subjecting Carter to additional questions after the conclusion of the field
sobriety tests. An officer may pose questions to vehicle passengers during a
routine traffic stop to determine whether they have lawful possession of the
vehicle. United States v. Alvarez, 68 F.3d 1242, 1244-45 (10th Cir. 1995). In
addition, an officer may question the occupants of a vehicle concerning their
travel plans. United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir. 1995).
Thus, Officer LaGrone’s questions regarding Carter’s travel plans were within the
legitimate scope of the initial stop.
Once it was determined that Carter was not under the influence of alcohol
or drugs, Officer LaGrone resumed the process of issuing the speeding citation.
It was at this point that the drug dog alerted to the presence of drugs. Having
determined that the drug dog alerted to the presence of drugs during a valid
investigative detention, we turn next to the validity of the drug dog’s presence.
We have previously held that a dog sniff, under circumstances such as
these, is not a “search” within the meaning of the Fourth Amendment; an
individualized reasonable suspicion of drug-related activity is therefore not
required when the dog sniff is employed during a lawful seizure of the vehicle.
- 10 -
United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990); see also
United States v. Place, 462 U.S. 696, 707 (1983) (exposure of defendant’s
luggage, located in public place, to canine sniff is not a “search” within the
meaning of the Fourth Amendment). Thus, the dog sniff in this case was not a
search. Once the dog indicated the presence of drugs in the vehicle, the officers
had probable cause to search the interior of the vehicle. See United States v.
Ludwig, 10 F.3d 1523, 1527-28 (10th Cir. 1993); Morales-Zamora, 914 F.2d at
205. Therefore, the district court correctly refused to suppress the evidence of
drugs found in the vehicle.
Regarding the money found in Carter’s pockets, Officer Ledbetter stated
that Carter consented to this search; Carter denies consenting to this search. The
district court denied Carter’s motion to suppress the money. We must view the
evidence in the light most favorable to the ruling below and uphold the district
court’s findings unless they are clearly erroneous. Smith, 63 F.3d at 960.
Viewing the evidence in the light most favorable to the ruling below, we
hold that the district court properly denied Carter’s motion to suppress the
evidence obtained as a result of the traffic stop.
C. Whether the Search Warrants Contain Sufficient Probable Cause
The Fourth Amendment requires that “no warrant shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the
- 11 -
place to be searched and the persons or things to be seized.” U.S. C ONST . A MEND
IV. We recognize that “probable cause is a fluid concept – turning on the
assessment of probabilities in particular factual contexts – not readily, or even
usefully, reduced to a neat set of legal rules.” United States v. Soussi, 29 F.3d
565, 568 (10th Cir. 1994) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983).
An issuing magistrate is to make a practical, common-sense decision whether,
given the totality of the circumstances set forth in the affidavit, there is a fair
probability that a search will reveal contraband or evidence of a crime in a
particular place. Id.
A reviewing court owes great deference to a magistrate’s determination of
probable cause and should uphold that conclusion when “the totality of the
information contained in the affidavit provided a substantial basis for finding
there was a fair probability that evidence of criminal activity would be found . . .
.” Id. at 568-69. An affiant’s experience and expertise may be considered by an
issuing magistrate as well. Id. An affidavit in support of a search warrant must
contain facts sufficient to lead a prudent person to believe that a search would
uncover contraband or evidence of criminal activity. United States v. Danhauer,
229 F.3d 1002, 1006 (10th Cir. 2000). The affidavits in this case provided facts
sufficient to establish probable cause.
The North Main Street affidavit contains statements made by a confidential
- 12 -
informant indicating that a person known as “Bo Money” sold drugs from his
vehicle. The affidavit also corroborated the informant’s information. Officer
Ledbetter confirmed that Carter resided at the location provided by the informant,
that Carter drove the type of vehicle described by the informant, and that Carter
had used the name “Bo Money” in the past. In addition, Officer Ledbetter
described the transaction in the park between Carter and an unknown male, which
she believed was a drug transaction. Finally, Officer Ledbetter included
information about the drugs found in Carter’s vehicle and the $120 – the price of
an eightball of cocaine – found in Carter’s pocket. Officer Ledbetter concluded
by stating that, in her experience, when individuals transport and sell illegal drugs
from their vehicles there will often be residue of the substance in the vehicle – as
was the case here.
The second affidavit – for the Cheyenne Avenue location – refers to the
confidential informant who provided information for the first search warrant. It
then refers to the recoveries made at 1539 North Main, including firearms,
controlled substances, drug paraphernalia, and documentation connecting Carter
to the residence at 4657 North Cheyenne. These recoveries provided further
independent corroboration of the information provided by the confidential
informant. The affidavit also notes that, in Officer Ledbetter’s experience,
individuals who sell drugs often keep most of their drugs in a stash house.
- 13 -
Carter alleges that the affidavits were deficient because Officer Ledbetter
failed to establish the informant’s reliability and basis of knowledge. “When
there is sufficient independent corroboration of an informant’s information,”
however, “there is no need to establish the veracity of the informant.” Danhauer,
229 F.3d at 1006. Although Officer Ledbetter did not establish the veracity of the
informant, she did provide independent corroboration of the informant’s
information. This corroboration included Officer Ledbetter’s verification of
Carter’s physical characteristics, a description of his vehicle, and the fact that
Carter resided at the residence reported by the informant. Corroboration of these
innocent details is not sufficient to establish probable cause. However, Officer
Ledbetter provided further corroboration: the transaction in the park between
Carter and the unknown male; the fact that Carter used the name “Bo Money” in
the past; the money found in Carter’s pocket; and the cocaine found in Carter’s
vehicle. This information, viewed as a whole, constitutes more than mere
corroboration of innocent details. Giving the required deference to the magistrate
judge’s determination, this information supported issuance of search warrants for
the locations specified in the warrants.
Because we affirm the district court’s finding that the warrants were
supported by probable cause, we need not address the good-faith exception
announced in Leon .
- 14 -
III. C ONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of
Carter’s motion to suppress.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
- 15 -