United States v. Cline, Timothy

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 21 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 02-3418
TIMOTHY JAY CLINE, a/k/a Pony,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 00-CR-40024-03-SAC)

Daniel E. Monnat, Monnat & Spurrier, Chtd., Wichita, Kansas, for Defendant-
Appellant.

Anthony W. Mattivi, Assistant United States Attorney (Eric F. Melgren, United
States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Before SEYMOUR , Circuit Judge, and ANDERSON and BRORBY , Senior
Circuit Judges.

ANDERSON , Circuit Judge.
 Timothy J. Cline was convicted following a seven week jury trial on the

following counts: conspiracy to manufacture more than one kilogram of

methamphetamine, in violation of 21 U.S.C. § 846 (count 1); three counts of

distribution of varying amounts of pseudoephedrine, in violation of 21 U.S.C.

§ 841(d)(2) (counts 2, 3, and 4); distribution of approximately two kilograms of

pseudoephedrine, in violation of 21 U.S.C. § 841(d)(2) (count 5); two counts of

knowingly and intentionally using, or causing to be used, a communication

facility or communication facilities in facilitating a drug trafficking offense, in

violation of 21 U.S.C. § 843(b) (counts 7 and 8); three counts of distribution of

varying amounts of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)

(counts 12, 13 and 14); and two counts of possession with intent to distribute

varying amounts of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)

(counts 15 and 23). He was sentenced to 360 months imprisonment and five years

of supervised release, and directed to pay a $1200 assessment.

Cline’s motions to suppress evidence, seized pursuant to a series of

wiretaps, during a traffic stop, and during a search of his house, were denied.

Additionally, his motion for judgment of acquittal or, in the alternative, for a new

trial was denied. He appeals the denial of those motions. We affirm.

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 BACKGROUND

Federal law enforcement authorities first became interested in Cline in

1994 when agents from the Internal Revenue Service and the Drug Enforcement

Agency (“DEA”) noticed that Cline and his wife, Janet Cline, had made an

unexplained expenditure of some $500,000 in cash. While investigating this

matter, agents executed a search warrant of the Clines’ house but found nothing

incriminating. No criminal charges were ever filed.

Federal authorities briefly investigated Cline again in 1997 after arresting

Anthony Fracasso, who admitted to producing methamphetamine, but again were

unable to develop sufficient evidence to file charges against Cline. In 1998 and

1999, agents from the DEA and the Kansas Bureau of Investigation began an

investigation into a large drug trafficking organization in the tri-state area of

southeast Kansas, southwest Missouri and northeast Oklahoma. One focus of the

investigation was a motorcycle store, Biker’s Dream, owned and operated by

Cline. Agents suspected that Biker’s Dream was the source of large quantities of

pseudoephedrine, a precursor chemical for the production of methamphetamine.

They further suspected that Shane Wright was a methamphetamine cook and

dealer and that Wright and Cline were associated in a methamphetamine

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production and distribution ring. 1
Facts generally outlining the course of the

investigation are set out below, with greater detail supplied in connection with the

discussion of specific issues.

Investigators used court-authorized wiretaps as part of their investigation

into the Wright-Cline methamphetamine organization. Accordingly, they

monitored five separate telephone lines, including the business telephone line for

Biker’s Dream and the residential telephone line of Cline and his wife, as well as

Wright and others. Further details regarding the information presented in the

affidavits submitted in support of the applications for the wiretaps will be

discussed in connection with Cline’s arguments about the wiretaps.

Another tactic the agents investigating the Wright-Cline methamphetamine

organization used was to conduct traffic stops based in part upon information

gleaned from the wiretaps. One such stop involved Cline, in which, based on

information obtained in a wiretapped phone conversation, a DEA agent and a state

trooper followed Cline’s truck for several miles on a windy day, at which time

they observed his truck swerve once onto the shoulder of the road, nearly hitting a

bridge railing. They subsequently pulled his truck over for the observed traffic

violation and, after obtaining consent to search it, discovered some 16,000

Much of the evidence against Cline at his trial came from Wright and his
1

wife, Tracy, who pleaded guilty to conspiracy to manufacture and distribute
methamphetamine and testified against Cline.

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pseudoephedrine tablets. Further factual details concerning the stop will be

discussed in connection with Cline’s argument about the validity of the traffic

stop and the subsequent seizure of the pills.

Subsequently, on March 27, 2000, agents executed a search warrant at

Cline’s home, during which they found numerous firearms around the house,

some loaded, and some small amounts of drugs. Cline was arrested at that time.

Further factual details concerning the execution of the warrant will be discussed

in connection with Cline’s arguments about the validity of the execution of the

warrant.

Prior to trial, Cline’s counsel filed a motion in limine seeking to prevent the

government from presenting, inter alia, any evidence regarding Cline and his

wife’s pending divorce and Cline’s young girlfriend. When the government

informed the court that it did not intend to offer any such evidence, the court

denied the motion as moot. The court added, “Nor shall the government

otherwise refer to or mention this evidence before the jury panel or jury without

first approaching the bench.” R. Vol. 8, tab 1310 at 19. At trial, the government

questioned a witness regarding Cline’s girlfriend and elicited testimony about her

age without first obtaining the court’s approval. The court overruled Cline’s

objection to that testimony. Following the jury’s guilty verdict, Cline filed a

motion for acquittal or, alternatively, for a new trial, contending that the

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government’s violation of the in limine order was prosecutorial misconduct

warranting a new trial. Further details about the circumstances surrounding this

incident will be discussed in connection with Cline’s argument about this issue.

Cline argues (1) the district court erred in refusing to suppress evidence

improperly obtained through the use of wiretaps because (a) the wiretaps were

obtained without an adequate showing of necessity and (b) the government failed

to timely seal the tapes of the calls intercepted on Cline’s home telephone; (2) the

district court erred in refusing to suppress evidence obtained following the

allegedly unlawful traffic stop of Cline because (a) when Cline was pulled over

for drifting once onto the shoulder on a windy day after being followed for

several miles by a trooper, the stop was not justified at its inception; (b) the

detention, while officers discussed how to proceed with their drug investigation,

exceeded the permissible scope of the traffic stop; and (c) Cline’s consent to

search, given immediately following the unlawful stop and detention, was tainted

and therefore not voluntary; (3) the district court erred in refusing to suppress

evidence seized following the execution of the search warrant at Cline’s home

when officers broke down the door without giving the Clines sufficient time to

admit the officers; and (4) the government committed misconduct by presenting

testimony about Cline’s girlfriend in violation of the court’s in limine order and

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the court erred in overruling Cline’s objection to the evidence and in denying his

motion for a new trial.

DISCUSSION

I. Suppression of Evidence Obtained Through Wiretaps

A. Adequacy of Showing of Necessity

Cline argues first that the wiretaps on the phones at his business and his

home and on Wright’s home were obtained without an adequate showing of

necessity. The district court denied his motion to suppress evidence obtained by

means of those wiretaps, concluding that the government had adequately

demonstrated necessity. “We review for an abuse of discretion a district court’s

determination that a wiretap was necessary.” United States v. Ramirez-

Encarnacion , 291 F.3d 1219, 1222 (10th Cir. 2002). Further, “[a] defendant bears

the burden of proving that a wiretap is invalid once it has been authorized.” Id.

If a defendant succeeds in showing that the necessity requirement was not met,

evidence seized pursuant to the wiretap must be suppressed. Id.

By statute, an application for a wiretap order must contain a “full and

complete statement as to whether or not other investigative procedures have been

tried and failed or why they reasonably appear to be unlikely to succeed if tried or

to be too dangerous.” 18 U.S.C. § 2518(1)(c). The authorizing judge must

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similarly find that “normal investigative procedures have been tried and have

failed or reasonably appear to be unlikely to succeed if tried or to be too

dangerous” in order to meet the necessity requirement. 18 U.S.C. § 2518(3)(c);

see also Ramirez-Encarnacion , 291 F.3d at 1222.

Such traditional investigative techniques include “(1) standard visual and

aural surveillance; (2) questioning and interrogation of witnesses or participants

(including the use of grand juries and the grant of immunity if necessary); (3) use

of search warrants; and (4) infiltration of conspiratorial groups by undercover

agents or informants.” United States v. VanMeter , 278 F.3d 1156, 1163-64 (10th

Cir. 2002) (quoting United States v. Castillo-Garcia , 117 F.3d 1179, 1187 (10th

Cir. 1997), overruled on other grounds by United States v. Ramirez-Encarnacion ,

291 F.3d 1219 (10th Cir. 2002) (en banc n.1)). Other traditional techniques

include pen registers and trap and trace devices. See Ramirez-Encarnacion , 291

F.3d at 1222 n.2.

If it has not tried those traditional techniques, the government must explain

that failure with particularity. Id. at 1222; see also United States v. Mitchell , 274

F.3d 1307, 1310 (10th Cir. 2001). “[G]eneralities, or statements in the conclusory

language of the statute, are insufficient to support a wiretap application. The

statements must be factual in nature and they must specifically relate to the

individuals targeted by the wiretap.” Castillo-Garcia , 117 F.3d at 1188.

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However, we “consider all the facts and circumstances . . . and read the necessity

requirement in a common sense fashion.” Ramirez-Encarnacion , 291 F.3d at 1222

(internal quotations and citations omitted).

Cline argues that the language in the applications for the wiretaps on the

phones in his home and his business as well as in the Wright home were

conclusory and failed to adequately demonstrate necessity as to him. He asserts

that “[t]he facts set forth in the applications and affidavits showed either that the

normal investigative techniques that were undertaken were effective or that they

had not been tried prior to seeking the wiretaps.” Appellant’s Br. at 11.

Eight applications were filed in this case, seeking authorization to intercept

wire communications on five separate telephone lines. 2
Cline argues he was one

of the individuals targeted by the wiretaps on the Wright residence telephone

(Line A), the Biker’s Dream phone (Line D) and his own home telephone (Line

E). Senior Judge Richard Rogers of the United States District Court for the

District of Kansas signed the orders authorizing and extending the interception of

the wire communications on four of the five lines (Lines A-D), and Judge Sven

2
There were three applications for three monitoring periods on the Wrights’
house (Line A), one application for a cell phone registered to Miste Alartosky
(Line B), two applications for cell phones registered to Johnny Wright (Line C),
one application for the business telephone at Biker’s Dream (Line D) and one
application for the Clines’ home telephone (Line E).

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Holmes of the United States District Court for the Northern District of Oklahoma

signed the order authorizing the interception of the fifth line (Line E).

The Wright wiretap was obtained first. Cline argues that the affidavit of

DEA agent Robert Ryan in support of the original application for the Wright

wiretap only cursorily recites prior efforts to infiltrate the organization and the

use of ordinary investigative techniques like telephone records, pen registers,

background checks, general questioning, informants, physical surveillance, and

search warrants, and only mentions Cline by name once. See R. Vol. 83, doc.

628, tab 4. He argues that subsequent affidavits submitted in support of the

government’s applications for extensions of the wiretap on Wright’s telephone, as

well as the application for wiretaps on Cline’s own residence and on the Biker’s

Dream, suffered from the same deficiencies. We disagree with all his arguments.

Because all the challenged affidavits are very similar, we will address them

collectively, pointing out, where necessary, any differences between them.

The affidavits in support of the applications recited the “use and exhaustion

of normal investigative techniques,” including “[i]nfiltration by undercover

officers,” “[r]eview of telephone records, including pen register results,”

“[r]eview of general background and police records of suspected traffickers,”

“[g]eneral questioning, with or without grants of immunity,” “[u]se of

informants,” “[p]hysical surveillance,” “[s]earch warrants,” and “[w]ire

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intercepts.” R. Vol. 84, doc. 629, tab 7, ¶ 76 (Biker’s Dream Wiretap App.), tab

8, ¶ 81 (Cline Residence Wiretap App.), R. Vol. 83, doc. 628, tab 4, ¶ 73 (Wright

Residence Wiretap App.). The affidavits explained how infiltration by

undercover agents had been unsuccessful because most members of the

organization had lived in the same area for years, had known each other for years,

and were suspicious of anyone new. Further, the affidavits stated that the

investigation revealed that Wright kept his subordinates separate so that they did

not always know each other’s identity or know what other members of the

organization were doing. The affidavits recited the investigation’s limited

success with the three cooperating individuals the agents had used thus far and

that

[t]o date, no successful undercover activity has been mounted
directly with Tim CLINE. CLINE is very careful to protect himself
from this type of activity by dealing only with trusted members of his
organization. From training and experience, this affiant knows that
members of organized ‘outlaw’ motorcycle gangs are very paranoid
and protective o[f] their organizations and activities.

R. Vol. 84, doc. 629, tab 7, ¶ 80. 3

The affidavits recounted the use of pen register information in the

investigation, but stated that such information was limited in its usefulness

because it did not reveal the identities of the parties to the conversation nor the

3
Cline was a member and president of the Loners Motorcycle Gang.

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nature or substance of the conversation, nor differentiate between legitimate calls

and those for criminal purposes. For example, “pen register information has

established that Tim CLINE utilizes the target telephones to make contact with

other members of the LONERS MOTORCYCLE GANG, but the exact nature of

the conversations cannot be known without the use of wire intercept.” Id. , ¶ 81.

The affidavits further detailed that while some cooperating individuals had

been interviewed, further questioning of individuals was unlikely to prove

fruitful. A number of individuals involved in the drug organization had histories

of violence. Several murders were believed by those close to the organization to

be related to the organization’s drug activity. Several individuals had indicated

that, while they had provided some confidential information, they would refuse to

testify because of fear for their safety.

Similarly, the supporting affidavits recounted that “[r]eliable confidential

informants and cooperating sources have been identified and developed by your

Affiant . . . in regard to this investigation.” Id. , ¶ 87; R. Vol. 83, doc. 628, tab 4,

¶ 84. However, the organization revealed itself to be “compartmentalized” and

“close-natured.” Id. The affidavits revealed the use of three cooperating

individuals who had some degree of success in infiltrating the organization but

whose future usefulness was virtually nil. The first cooperating individual was, at

the time of the application, suspected of being an informant and was not able to

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make further contact with any members of the drug organization. The second

individual was incarcerated on an unrelated charge, and the third individual had

apparently ceased to cooperate and had in fact gone back to working with the drug

organization. The affidavits adequately established that, due to the close-knit

community, as well as the suspicious nature of those involved in the drug

organization and the difficulty of introducing anyone new into it, the traditional

investigative technique of informants had been tried but was unlikely to meet with

further success.

The supporting affidavits also explained the agents’ use of surveillance on

numerous occasions of various places and subjects, primarily “the manufacturers

and distributors of methamphetamine for this organization.” R. Vol. 84, doc. 629

tab 7, ¶ 89. They detailed the difficulties encountered in conducting surveillance

in the rural area: the officers and their vehicles stood out among the locals;

Wright and Cline used sophisticated counter-surveillance techniques; members of

the drug organization were familiar with and used back roads where surveillance

was difficult or easily detected; surveillance of Cline’s business was hampered by

the fact that some suspects in the drug organization were county employees and

local business persons.

The affidavits detailed the limited success obtained thus far by the use of

search warrants. While they had resulted in the seizure of drugs and

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methamphetamine laboratories and proceeds, they had failed to uncover the scope

of the operations, or identify the sources of the precursor chemicals, the methods

of distribution, and other members of the conspiracy.

In sum, we conclude that the district court did not abuse its discretion when

it concluded that the government made an adequate showing of necessity for the

issuance of the wiretaps in question. Far from being conclusory, the affidavits

contain sufficient factual details explaining the traditional investigative

techniques used, and why any future use of them would likely be fruitless. They

sufficiently explain why the investigative techniques would be futile with respect

to Cline, as well as other members of the organization being investigated. Many

of the problems the agents encountered investigating the drug organization were

not unique to Cline, but applied to the entire organization and its structure, and so

the failure to specifically name Cline repeatedly was not fatal to the affidavits.

B. Sealing of Tapes

Cline next argues the government failed to timely seal the tapes of the calls

intercepted on his home telephone. 4
The statute provides that “[i]mmediately

upon the expiration of the period of the order [authorizing the wiretap], or

4
Cline appears to challenge only the timeliness of the sealing of the tape of
the wiretap on his own residence, not the tapes of any other wiretaps.

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extensions thereof, such recordings shall be made available to the judge issuing

such order and sealed under his directions.” 18 U.S.C. § 2518(8)(a). The statute

further provides that “[t]he presence of the seal provided for by this subsection, or

a satisfactory explanation for the absence thereof, shall be a prerequisite for the

use or disclosure of the contents of any wire, oral, or electronic communication or

evidence derived therefrom.” Id.

The order authorizing the wiretap on Cline’s residence was issued on

February 24, 2000. Telephone calls were intercepted until March 23, 2000. On

that same day, DEA agent Rob Ryan, who was the case agent and the wiretap

administrator, contacted Assistant U.S. Attorney Allen Litchfield, who was

supervising the Oklahoma wiretap. AUSA Litchfield, in turn, contacted the office

of United States District Judge Holmes, who had authorized the wiretap on

Cline’s residence, and stated that the tapes were available. Agent Ryan was told

that, because of the judge’s schedule, Agent Ryan should appear before the judge

on March 30, 2000. Agent Ryan and another AUSA did so, and, on March 30, the

tapes were sealed by Judge Holmes. 5

Cline argues the one week delay is too long and the government has failed

to adequately explain that delay, other than to assert that the judge was

5
AUSA Litchfield did not accompany Agent Ryan on March 30 because he
was in trial, so another AUSA accompanied Agent Ryan when the tapes were
sealed by Judge Holmes. See R. Vol. 9, doc. 748, attachs. E & F.

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unavailable, and this court has never stated whether the issuing judge’s

unavailability is a satisfactory explanation for such a delay.

“By its clear language, Section 2518(8)(a) requires, as a prerequisite to the

admissibility of a recording, that one of two criteria be satisfied: either the

recording must have been properly placed under seal, or the government must

provide a ‘satisfactory explanation’ for its failure to comply with the sealing

requirement.” United States v. Gomez , 67 F.3d 1515, 1523 (10th Cir. 1995)

(citing United States v. Ojeda Rios , 495 U.S. 257, 263 (1990)). If the government

fails to comply with the statute, the recording and all evidence derived therefrom

must be suppressed. Id. Thus, we must consider whether the presentation of the

recording for sealing was “immediate” within the meaning of § 2518(8)(a) and, if

not, whether the government’s explanation of its delay in presentation was

“satisfactory” under the statute. We review those questions of statutory

interpretation de novo. United States v. Maxwell , 25 F.3d 1389, 1394 (8th Cir.

1994); United States v. Rodriguez , 786 F.2d 472, 476 (2nd Cir. 1986).

The government argues the recordings were immediately “made available”

to the judge who issued the wiretap order (Judge Holmes) in the sense that the

AUSA immediately contacted the judge and offered to appear at the judge’s

convenience to present the recordings for sealing. Thus, the government argues,

the fact that the recordings were in fact sealed, pursuant to the judge’s directions,

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some seven days later is irrelevant. We do not need to decide whether the statute

requires that the government only make the recordings immediately available for

sealing, regardless of when they are in fact sealed, or whether it requires

immediate actual sealing. Even if the government failed to comply with the

sealing requirement, we find that the government’s explanation for the seven-day

delay before the tapes were sealed is reasonable.

As indicated, once the wiretap terminated, the government immediately

contacted the issuing judge to present the recordings for sealing. The judge

informed Agent Ryan and AUSA Litchfield that, due to the judge’s scheduling

problems, the next available time for the government to present the recordings

would be in a week, and directed the AUSA to come back then. R. Vol. 9, doc.

748, attach. E. 6
While the government could have sought another judge to have

the recordings sealed, there is no evidence of bad faith and no indication that the

recordings were tampered with or that there was any tactical advantage gained by

waiting the week to have Judge Holmes seal the tapes. Other courts have

similarly accepted the issuing judge’s scheduling problems as an acceptable

excuse for a delay. See United States v. McGuire , 307 F.3d 1192, 1204 (9th Cir.

Agent Ryan’s report states that he was instructed to appear before Judge
6

Holmes on “3-20–00.” As the government notes in its brief, that is clearly a
typographical error, as the date was 3-30-00, as Agent Ryan correctly notes
elsewhere in his report.

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2002) (“As we have noted, ‘[t]he unavailability of the issuing or supervising

judge may constitute a satisfactory explanation for a sealing delay.’” (quoting

United States v. Pedroni , 958 F.2d 262, 266 (9th Cir. 1992))); Maxwell , 25 F.3d

at 1394 (“Intervening weekends, holidays, and the unavailability of the issuing

judge are satisfactory explanations for slight delays in presenting wiretap

recordings for sealing.”); United States v. Ardito , 782 F.2d 358, 362-63 (2d Cir.

1986) (two-day intervening holiday, unavailability of issuing judge, and need to

prepare paperwork provided adequate explanation for five-day delay); United

States v. Fury , 554 F.2d 522, 533 (2d Cir. 1977) (holding that unavailability of

issuing judge excused six-day delay in sealing of tapes). But see Rodriguez , 786

F.2d at 477-78 (holding that absence of issuing judge is no longer an acceptable

excuse for failing to have recordings sealed); cf. United States v. Quintero , 38

F.3d 1317, 1330 (3d Cir. 1994) (declining to decide “whether the absence of the

supervising judge, in and of itself, is sufficient excuse for any delay in sealing”).

We conclude that the district court did not abuse its discretion when it concluded

that the government carried its burden of providing a satisfactory explanation for

the seven-day delay before the recordings were sealed.

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II. Suppression of Evidence Obtained Following Traffic Stop

As indicated above, an intercepted wiretapped telephone call between Cline

and Shane Wright on December 14, 1999, indicated that Cline would be visiting

Wright the next day between noon and 2:00 p.m. While agents suspected Cline

was a supplier of pseudoephedrine to Wright, nothing in the intercepted call

specifically referred to any such delivery. Agents had Cline’s business, Biker’s

Dream, under surveillance, and followed his truck as he headed generally in the

direction of Wright’s house.

The investigating agents had previously met with a Kansas State trooper,

Trooper Grassl, and arranged for him, accompanied by DEA Agent John Aldine,

to follow Cline’s vehicle. After following Cline’s vehicle for several miles,

Trooper Grassl observed “Mr. Cline drift[] approximately one to two feet clear

across the white line onto the shoulder area of the roadway and then pull[] his

vehicle back.” R. Vol. 14, doc. 985, at 19. Grassl testified that he thought Cline

“was actually going to hit the bridge rail.” Id. at 20. Trooper Grassl and Agent

Aldine followed Cline’s vehicle for another mile and, once he started to turn off

the highway on a road towards Wright’s house, the trooper activated his flashing

lights and pulled Cline over. The weather was clear but windy at the time of the

stop.

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 When the trooper approached Cline’s truck and informed Cline that he had

stopped him because he had observed him swerve off onto the shoulder of the

road, Trooper Grassl testified that Cline “indicated that he was having a little

trouble with his vehicle. . . . [H]e said basically something to do with his ball

joint – front ball joint appeared to be leaking. He was having some trouble with

it pulling.” Id. at 23. Grassl obtained Cline’s driver’s license and returned to his

car to run a check on it, while Cline waited in his truck. During some of this time,

prior to running a check on Cline’s license, Grassl waited while DEA Agent

Aldine discussed what to do with other DEA agents.

After running a computer check on Cline’s license, the trooper returned the

license to Cline, issued him a warning, told him he was free to go, and then asked

him if he (Grassl) could ask Cline a few more questions. Cline indicated he could.

The traffic stop had lasted approximately eight and one-half minutes by the time

Grassl asked Cline’s permission to ask a few more questions. Grassl asked if

Cline had been drinking or if he had anything illegal in the car, to which Cline

responded he did not. Grassl then asked if he could search the vehicle for

anything illegal, and Cline said he could. While searching the passenger area of

the truck, Grassl removed a jacket lying on the passenger side floorboard. Under

the jacket was a paper sack containing two ziplock baggies containing a large

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number of white pills which turned out to be pseudoephedrine. Trooper Grassl

seized the pills and gave Cline an evidence custody receipt.

Cline argues that the traffic stop was invalid as unsupported by either

reasonable suspicion or probable cause. He also argues that the detention

exceeded the permissible scope and duration of an investigative detention because

several minutes elapsed while Trooper Grassl waited for DEA Agent Aldine to

discuss with other DEA agents what course of action to take, prior to Grassl’s

completion of the routine aspects of the traffic stop. Finally, he argues his

consent to search was tainted and invalid because it followed so closely an illegal

stop and detention. The district court denied Cline’s motion to suppress the pills

seized following the traffic stop, finding neither the initial stop, nor the detention

nor the search pursuant to Cline’s consent contravened the Fourth Amendment.

When reviewing the denial of a motion to suppress, “we accept the factual

findings of the district court, and its determination of witness credibility, unless

they are clearly erroneous.” United States v. Cervine , No. 02-3169, 2003 WL

22407413, at * 2 (10th Cir. Oct. 22, 2003). We view the evidence in the light

most favorable to the district court’s findings. Id. We review de novo the

“ultimate determination of reasonableness under the Fourth Amendment.” Id.

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 A. Validity of Initial Stop

We conduct a two-step inquiry when considering the constitutionality of a

traffic stop under the Fourth Amendment. First, we determine “‘whether the

officer’s action was justified at its inception.’” Id. (quoting United States v.

Gonzalez-Lerma , 14 F.3d 1479, 1483 (10th Cir. 1994)). Second, we consider

“‘whether the action was reasonably related in scope to the circumstances that

first justified the interference.’” Id. (quoting Gonzalez-Lerma , 14 F.3d at 1483).

“‘An officer conducting a routine traffic stop may request a driver’s license and

vehicle registration, run a computer check, and issue a citation.’” Id. (quoting

Gonzalez-Lerma , 14 F.3d at 1483).

A valid traffic stop must be “‘based on an observed traffic violation’” or a

“‘reasonable articulable suspicion that a traffic or equipment violation has

occurred or is occurring.’” United States v. Callarman , 273 F.3d 1284, 1286

(10th Cir. 2001) (quoting United States v. Botero-Ospina , 71 F.3d 783, 787 (10th

Cir. 1995) (en banc)). In this case, Cline was stopped for violating Kan. Stat.

Ann. § 8-1522, which provides that “[w]henever any roadway has been divided

into two (2) or more clearly marked lanes for traffic . . . [a] vehicle shall be

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driven as nearly as practicable entirely within a single lane.” Kan. Stat. Ann.

§ 8-1522(a). 7

Cline relies upon our decision in United States v. Gregory , 79 F.3d 973

(10th Cir. 1996), and a Kansas district court decision, United States v. Ochoa , 4

F. Supp. 2d 1007 (D. Kan. 1998), to argue that a single instance of swerving onto

the shoulder of the road did not constitute a traffic violation. In Gregory we held

that it was not a violation of a Utah traffic statute virtually identical to § 8-1522

for the driver of a U-Haul to swerve one time onto the shoulder of the road, 79 F.

3d at 978, and in Ochoa a Kansas district court held that it was not a violation of

section 8-1522 for a driver to drift once onto the shoulder of the road, 4 F. Supp.

2d at 1012.

As we have subsequently held, however:

decisions like Gregory do not establish an absolute standard or
bright-line rule regarding what conduct constitutes a violation of
statutes like Kan. Stat. Ann. § 8-1522, but instead highlight the need
to analyze objectively all the surrounding facts and circumstances to
determine whether the officer had the probable cause necessary to
justify the stop.

United States v. Ozbirn , 189 F.3d 1194, 1198 (10th Cir. 1999). Thus, in Gregory ,

the defendant was driving a U-Haul on a mountainous, winding road, in windy

conditions. 79 F.3d at 975. On those particular facts, we held a single instance

See R. Vol. 12, Def.’s Ex. C3 (warning given to Cline for traffic violation,
7

indicating statute violated was “8-1522”).

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of swerving onto the shoulder did not constitute a traffic violation. Id. at 978. In

Ochoa there was no evidence as to weather or road conditions, and the court

found that “the troopers caused or contributed to causing the drift.” Ochoa , 4 F.

Supp. 2d at 1011-12 & n.4. On those particular facts, the district court held that a

single instance of swerving onto the shoulder was not a violation of section

8-1522. Id. at 1012. As Ozbirn makes clear, however, neither case stands for the

proposition that a single instance of drifting onto the shoulder can never be a

violation of a traffic statute like section 8-1522, which is what Cline, in effect,

asks us to declare. Rather, the particular facts and circumstances of each case

determine the result.

As the district court noted, Trooper Grassl testified that, while there was a

brisk wind, it was not significant enough to have caused Cline’s truck to swerve.

R. Vol. 14, doc. 985, at 82. He further testified there was nothing else about the

road conditions that would have caused the swerve and that nearly striking a

bridge abutment was a dangerous driving violation. Id. at 82-83. Moreover,

despite Cline’s suggestion that the officers may have contributed to Cline’s

swerve by following him, the district court found that “[t]here is no convincing

evidence that this occurred here.” Mem. and Order at 16, R. Vol. 8, doc. 940. 8

8
The district court’s findings with respect to this are as follows:

(continued...)

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 The fact that Trooper Grassl may have had other motivations in stopping

Cline is irrelevant. See Cervine , 2003 WL 22407413, at *4 (“The fact that the

troopers had other motivations for stopping Mr. Cervine has no bearing upon this

review.”). “Subjective intentions play no role in ordinary, probable-cause Fourth

Amendment analysis.” Whren v. United States , 517 U.S. 806, 813 (1996).

In sum, given that Trooper Grassl needed only an articulable suspicion that

a traffic violation had occurred, 9
we hold that the initial stop of Cline’s truck was

reasonable.

8
(...continued)
While on the videotape Trooper Grassl is heard telling Cline that he
was preparing to pass when he saw Cline swerve, the testimony of
Grassl and Agent Aldine is that the patrol car never started to pass
the pickup and always maintained a proper following distance. Cline
is not heard giving any excuse to Trooper Grassl that he swerved in
response to the patrol car. Nor does the court have any basis for
saying that a reasonable driver would be distracted by the mere
presence of a patrol car operated in a normal manner as to drift one
to two feet off the road and nearly strike a bridge railing.

Mem. and Order at 16-17, R. Vol. 8, doc. 940.
9
As we stated in Cervine, “our case law makes clear that ‘[w]hile either
probable cause or reasonable suspicion is sufficient to justify a traffic stop, only
the lesser requirement of reasonable suspicion is necessary.’” Cervine, 2003 WL
22407413, at *3 n.2.

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 B. Validity of Detention

Cline next argues that, even assuming the initial stop was valid, the

detention which followed exceeded the permissible scope of a routine traffic stop.

He argues that several minutes elapsed prior to the time when Trooper Grassl

actually contacted dispatch and transmitted Cline’s driver’s license information,

during which time Agent Aldine was discussing with other DEA agents what

course of action to pursue in their investigation of Cline, all of which was

unrelated to the traffic violation.

“[T]he Fourth Amendment reasonableness of a traffic stop based on

probable cause must be judged by examining both the length of the detention and

the manner in which it is carried out.” United States v. Holt , 264 F.3d 1215, 1230

(10th Cir. 2001) (en banc). The Supreme Court has stated that, in determining

whether a detention is too long, we should “examine whether the police diligently

pursued a means of investigation that was likely to confirm or dispel their

suspicions quickly.” United States v. Sharpe , 470 U.S. 675, 686 (1985). Other

than the fact that some five minutes elapsed prior to Trooper Grassl’s submission

of Cline’s driver’s license to dispatch, nothing else about the detention was

unusual or intrusive. Trooper Grassl testified that most traffic stops last between

five and ten minutes. Cline’s stop lasted approximately eight minutes. While

Agent Aldine did, for a few minutes, discuss with DEA agents what course of

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action to pursue with respect to Cline, a person they suspected was involved in a

methamphetamine drug organization they were investigating, those few minutes

did not extend the length of the stop beyond that of a normal traffic stop. We

accordingly agree with the district court that the detention was reasonable in

scope and duration.

C. Consent to Search

Cline argues that the consent to search, immediately following what he

claims was an unlawful stop and detention, was tainted and therefore invalid. We

have held that the stop and detention were both reasonable and valid under the

Fourth Amendment. Trooper Grassl had returned Cline’s driver’s license to him

and told him he was free to go. At that point, the trooper asked Cline if he

(Grassl) could ask Cline a few more questions. Cline assented. When asked,

Cline denied having anything illegal in the truck, and then agreed to let Grassl

search the car.

“It has long been established that an officer may conduct a warrantless

search consistent with the Fourth Amendment if the challenging party has

previously given his or her voluntary consent to that search.” United States v.

Ringold , 335 F.3d 1168, 1174 (10th Cir. 2003). The district court found “[t]he

videotape is convincing evidence that . . . Cline’s consent to search the pickup

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was unequivocal and specific and freely given without duress or coercion.” Mem.

and Order at 30, R. Vol. 8, doc. 940. We agree with the district court that Cline’s

consent was voluntary and freely given.

III. Search of House

Cline next argues that the execution of a search warrant at his residence

early in the morning of March 27, 2000, violated 18 U.S.C. § 3109 and requires

the suppression of all the evidence gathered pursuant to that warrant. The district

court denied Cline’s motion to suppress. On appeal from that denial, “we review

the district court’s factual findings for clear error, its conclusions of law de novo,

and view the evidence in the light most favorable to the prevailing party.” United

States v. Gallegos , 314 F.3d 456, 458 (10th Cir. 2002).

The “knock and announce” rule contained in § 3109 “forms a part of the

reasonableness inquiry under the Fourth Amendment.” Wilson v. Arkansas , 514

U.S. 927, 929 (1995). Section 3109 provides that a law enforcement officer may:

break open any outer or inner door or window of a house, or any part
of a house, or anything therein, to execute a search warrant, if, after
notice of his authority and purpose, he is refused admittance or when
necessary to liberate himself or a person aiding him in the execution
of a warrant.

18 U.S.C. § 3109. The knock and announce requirement may be dispensed with

entirely if the police “have a reasonable suspicion that knocking and announcing

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their presence, under the particular circumstances, would be dangerous or futile,

or that it would inhibit the effective investigation of the crime by, for example,

allowing the destruction of evidence.” Richards v. Wisconsin , 520 U.S. 385, 394

(1997). When officers do knock and announce, as they did here, “‘the amount of

time that officers must wait after knocking and announcing depends on the

particular facts and circumstances of each case.’” Gallegos , 314 F.3d at 460

(quoting United States v. Jenkins , 175 F.3d 1208, 1213 (10th Cir. 1999)). We

have recently stated that “our survey of cases in this circuit has not revealed a

single case upholding an interval of less than ten seconds in the absence of

exigent circumstances, and our review of cases from other circuits has yielded

similar results.” Id.

The district court made the following findings concerning the execution of

the warrant:

John Aldine, a DEA Special Agent, was the team leader for this
execution. Aldine testified that at approximately 7:30 a.m. on March
27, 2000, Special Agent Robert Allen rapped on Cline’s door with
one hand and yelled loudly once or twice, “DEA, search warrant.”
After waiting five to ten seconds thereafter, and hearing no response
from inside, Aldine ordered Allen to “hit it.” Allen hit the door with
a battering ram, the door opened, and eight to ten agents entered
Cline’s residence with weapons drawn. Both Clines were found in
bed, awake but unclothed.

Mem. and Order at 8-9, R. Vol. 8, doc. 983. The district court held the “five to

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ten” second interval between the knock and announce and the forced entry was

reasonable under the circumstances, because several developments during the

officers’ approach to the Clines’ residence gave the officers a legitimate concern

for their safety and made further delay too risky:

The evidence was uncontradicted that the executing officers
were nervous and apprehensive. Special Agent Aldine testified that
their “cavalcade of cars” had been spotted in the small town in which
they assembled and had possibly been reported to the Clines by
someone on a cell phone that morning as the cars approached the
Clines’ residence.

Agents knew, because of authorized wiretaps, that Cline and
Johnny Shane Wright were associated, that Wright used and that
Clines may have used counter surveillance devices, such as police
scanners and cameras mounted at a distance from the house. The
agents felt exposed because of the Clines’ neighbor’s view of their
cars on the road near Cline’s drive, the possibility that the Clines had
a camera mounted near the gate to their residence, and the open area
surrounding their immediate approach to the Clines’ house.

Agents were delayed for several minutes by their unsuccessful
attempts to break the lock on the gate at Clines’ drive, and had to
leave their vehicles, which they had anticipated using as cover, at the
gate approximately 200-300 yards from the residence. Soon
thereafter, agents unsuccessfully attempted to call Timothy Cline out
of his house by use of the telephone, while approaching Cline’s
residence on foot.

Agents also had information causing them to believe that Cline
may be armed and dangerous. . . .

Based upon the above uncontradicted testimony, the court
finds that the Clines could easily have been alerted to the presence of
the agents because of the activities that occurred outside the house
immediately prior to their entry. It was thus reasonable for the

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 agents to believe that their safety had been compromised and further
delay was unwarranted .

Id. at 10-11 (emphasis added).

Those findings are amply supported by the testimony at the suppression

hearing and are not clearly erroneous.

We conclude that the officers’ entry under the circumstances of this case

was reasonable. Not only were the officers aware that a prior search of Cline’s

house had revealed firearms, but they suspected he used counter-surveillance

equipment and could be aware of their approach; their approach to his house had

taken longer than anticipated and was exposed for the last 200-300 yards, because

of the locked gate which they were unable to open; they feared their approach had

been relayed to Cline, based upon their observation of a person watching them

while talking on a cell phone, as well as a neighbor watching them; their fears

were not allayed when they tried to reach Cline by cell phone several times but

were unable to. 10
Thus, in this case, these exigencies permitted the officers to

enter the house forcibly some ten seconds after knocking and announcing their

presence. 11

10
Agent Aldine testified that he did not seek a no-knock warrant in this case
because, when law enforcement personnel had executed a search warrant on
Cline’s residence in 1994, Cline had put up no resistance.

We note that the Supreme Court has just heard oral argument in a case
11

where the question on which the Court granted certiorari was whether law
(continued...)

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IV. Prosecutorial Misconduct

Prior to trial, Cline filed a motion in limine seeking to prevent the

government from presenting any evidence regarding the Clines’ pending divorce

and Cline’s girlfriend. The court denied the motion as moot, in reliance on the

government’s representation that it did not intend to present any such evidence.

The court directed the government not to refer to that evidence without first

approaching the bench.

During the trial, Paula Boyd, the former store manager of Biker’s Dream,

testified regarding two $5,000 cash deposits into the Biker’s Dream bank account.

She testified that they may have been down payments from Cline on a motorcycle

for his granddaughter. When Boyd was recalled the next day to testify further

about those payments, it was revealed that in 1999 a motorcycle was sold and title

transferred to Cline’s granddaughter. Later, the title was transferred back to

Biker’s Dream. Under questioning by the government, it was revealed that Cline

took the motorcycle home to let a friend ride, but not his granddaughter. Cline’s

11
(...continued)
enforcement officers executing a search warrant violated the Fourth Amendment
and 18 U.S.C. § 3109 when they forcibly entered a small apartment in the middle
of the afternoon fifteen to twenty seconds after knocking and announcing their
presence. United States v. Banks, 282 F.3d 699 (9th Cir. 2002), cert. granted, 123
S. Ct. 1252 (U.S. Feb. 24, 2003) (No. 02-473). That case involved no exigent
circumstances of any kind, and is accordingly sufficiently distinguishable from
this case.

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counsel asked whether a grandfather would let his granddaughter ride a

motorcycle without proper insurance. The government asked who the friend was,

and Boyd revealed that it was Cline’s 18-year-old girlfriend. Cline’s counsel

objected on the ground that it was irrelevant, beyond the scope, and unduly

prejudicial under Fed. R. Evid. 403. He did not specifically refer to the court’s in

limine order. The court overruled the objection.

After the jury returned its guilty verdict, Cline filed a motion for judgment

of acquittal or, in the alternative, for a new trial, arguing, inter alia , that a new

trial should be granted because of prosecutorial misconduct in the questioning of

Boyd about Cline’s girlfriend, in violation of the court’s in limine order. The

district court denied the motion, concluding that, although the government

violated the in limine order “even though the defendant may have invited the

government’s questions . . . . [t]he court[] nevertheless[] stands by its evidentiary

ruling on the defendant’s trial objection which made no reference to the in limine

order or to the government’s violation of the same.” Mem. and Order at 11-12, R.

Vol. 8, doc. 1576. The court went on to state:

The ruling is correct in that the evidence was fairly relevant, was not
outside the scope of recross examination, and was not unfairly
prejudicial. Moreover, the court can find no grounds for believing
the government’s improper conduct influenced the verdict and, thus,
justifies a new trial. The court instructed the jury that the defendant
was on trial only for the acts alleged in the superseding indictment
and that they were not to be governed by bias or prejudice.
Considering the overwhelming evidence of the defendant’s

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 involvement in the drug conspiracy, the fact that the defendant had a
younger girlfriend is insignificant and could not have influenced the
jury.

Id. at 12. We review for an abuse of discretion the denial of a defendant’s motion

for a new trial based on prosecutorial misconduct. United States v. Maynard , 236

F.3d 601, 605 (10th Cir. 2000). We conclude that the district court did not abuse

its discretion in denying Cline’s motion for a new trial in this case.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denials of

Cline’s motions to suppress and the denial of his motion for a new trial.

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