United States v. Gregoire

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 3, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 04-4254
v. (D.C. No. 02-CR-756-DB)
(D. Utah)
DEANDRE J. GREGOIRE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D. Ct. No. 2:02-CR-756-DB)

Paul M. Warner, United States Attorney, and Michael Kennedy, Assistant United
States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

Bryant K. Calloway, Irvine, California, and Samuel P. Chiara, Price, Utah, for
Defendant-Appellant.

Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. *

KELLY, Circuit Judge.

*
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
 Defendant-Appellant Deandre J. Gregoire appeals from the denial of his

motion to suppress evidence obtained from his vehicle during a traffic stop. See

United States v. Gregoire, No. 2:02 CR 756 DB, 2003 WL 23355738, Memo. Op.

& Order (D. Utah Dec. 2, 2003). Mr. Gregoire pleaded guilty to possession with

intent to distribute five kilograms of cocaine, 21 U.S.C. § 841(a)(1) & (b)(1)(A),

and was sentenced to ten years imprisonment and five years supervised release.

Pursuant to Fed. R. Civ. P. 11(a)(2), he reserved his right to appeal the denial of

his suppression motion. Our jurisdiction arises under 28 U.S.C. § 1291 and we

affirm.

Background

On Sunday, November 17, 2002, at approximately 8:45 a.m., Utah Highway

Patrol Officer Steve Salas stopped Mr. Gregoire’s vehicle for failing to signal that

he was merging onto I-70 from the entrance ramp in violation of Utah Code Ann.

§ 41-6-69(1) (2004). 1 The trooper observed that the rear seat of the van was

1
The statute provides:

(1)(a) A person may not turn a vehicle or move right or left upon a
roadway or change lanes until the movement can be made with
reasonable safety and an appropriate signal has been given.
(b) A signal of intention to turn right or left or to change lanes shall
be given continuously for at least the last three seconds preceding the

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folded down and had been made into a sleeping area.

Pursuant to the trooper’s request, Mr. Gregoire produced an Ohio driver’s

license. When Mr. Gregoire was told the reason for the stop, he stated that he had

signaled. The trooper then asked Mr. Gregoire where he was headed, and Mr.

Gregoire explained that he was returning from Las Vegas after visiting his

grandfather who had a minor stroke, but then said that he was returning from

visiting friends in Las Vegas where he had lost money. The trooper requested the

vehicle’s registration and while Mr. Gregoire was looking for it, the trooper asked

whether Mr. Gregoire had just purchased the van and what Mr. Gregoire did for a

living. Mr. Gregoire told the trooper that he had, and was a student. The two

then had a conversation about Mr. Gregoire’s fear of law enforcement troopers.

Trooper Salas noticed a strong odor of air freshener. The trooper asked Mr.

Gregoire about it, and Mr. Gregoire became a little bit flustered. Mr. Gregoire

explained that he did not know the brand, and did not have it with him because

the air freshener had been sprayed in the vehicle.

After Mr. Gregoire’s operator’s license and registration were verified, they

were returned. The trooper then issued Mr. Gregoire a warning, explaining that

Mr. Gregoire had no further obligation to contact a court or pay a fine, but he

beginning of the turn or change.

Utah Code Ann. § 41-6-69(1) (repealed and renumbered as § 41-6a-804).

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should be sure to signal when coming on or off the freeway. The district court

found that at this point, Mr. Gregoire was free to leave, but instead engaged the

trooper in further conversation about the violation.

After explaining that he signals every time he turns, Mr. Gregoire exited

the vehicle and confirmed that his turn signal was working. The trooper

explained to Mr. Gregoire that he was stopped for failing to signal that he was

entering the highway, not for failing to signal a turn and that he was not given a

ticket, just a reminder to use his signal. The trooper then asked if he could ask

Mr. Gregoire a few questions about his trip and Mr. Gregoire responded “Go

ahead.” Aplt. App. 17. The trooper then asked Mr. Gregoire when he went out to

Nevada. Mr. Gregoire stated that he left Friday, and that he received a ticket

during his trip for going 90, and that he couldn’t have been going that fast. The

trooper requested a copy of the citation and noticed it was from Barstow,

California. When asked about this part of his trip, Mr. Gregoire explained that he

went to Barstow, which he insisted is in Nevada, to shop at certain outlet stores

but did not purchase anything because he lacked enough money.

The trooper next inquired about whom he stayed with on Friday night, but

Mr. Gregoire could provide only a first name of a friend. In the course of

inquiring, the trooper asked where Mr. Gregoire worked, what he was studying,

and why his girlfriend didn’t accompany him. Concerning the friend he stayed

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with, the trooper asked where the friend lived, whether in a house or apartment,

whether he was married, and what casinos he frequented. Mr. Gregoire then told

the trooper that he lost it all in Las Vegas and had to go to his credit card and

there was a $300 limit. The trooper asked what Mr. Gregoire played and when he

had to be back at work.

The trooper testified that he was suspicious of the many discrepancies in

Mr. Gregoire’s account of his travels, and this led him next to ask a series of

questions about whether there was anything illegal in the vehicle. During the

questioning, Mr. Gregoire indicated that the trooper could search the vehicle. See

Aplt. App. 22 (Q: “Do you have anything illegal in your van today, guy? A: “No,

you can empty it if you want to.”). Later in the questioning, the trooper sought

and obtained Mr. Gregoire’s consent to search the vehicle.

The trooper noticed that the bolts fastening the rear seat appeared to have

been removed several times, the carpet had been installed loosely and was

buckled, and had pulled away from molding that normally covers it. From his

training and experience, the trooper testified that he was aware that the vehicle

had a gap between the floor and bottom of the vehicle. At this point, he advised

Mr. Gregoire that the search was going to take longer. Thereafter, the trooper

drilled two small holes in the floor, but did not discover the contraband until he

chipped away some undercoat that covered the bottom of the compartment. He

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then found a non-factory weld that held a piece of sheet metal from the vehicle’s

outside running board to the inner frame rail of the van. After prying the sheet

metal, the trooper found a black square package containing the contraband.

Discussion

When reviewing a district court’s denial of a motion to suppress, we view

the evidence in the light most favorable to the government, accepting the district

court's factual findings unless clearly erroneous. United States v. Cantu, 405 F.3d

1173, 1176 (10th Cir. 2005). Fourth amendment reasonableness is reviewed de

novo. Id. On appeal, Mr. Gregoire argues that (1) the trooper’s stop of his

vehicle and resultant seizure of his person was not justified at its inception

because Utah law does not require a driver to signal in these circumstances, (2)

the trooper’s detention of Mr. Gregoire was not reasonably related to the

circumstances which may have justified the detention initially because (a) the

trooper prolonged the detention in the absence of reasonable suspicion, (b) Mr.

Gregoire did not voluntarily consent to additional questioning or a prolonged

detention, and (c) the trooper lacked an objectively reasonable belief that Mr.

Gregoire committed a traffic violation, and (d) the stop cannot be justified under

the good faith exception to the exclusionary rule. He further argues that (3) the

warrantless search of his vehicle required suppression of the evidence obtained

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because (a) his consent to search the vehicle was not voluntary in fact, (b) there

was an insufficient break between the illegal stop and his consent to search such

that suppression is required, (c) the trooper’s search of the vehicle exceeded the

scope of his consent, and (d) the discovery of the contraband occurred after Mr.

Gregoire had withdrawn his consent to search.

1. Was the Trooper’s Stop Justified at Its Inception?

Under the Fourth Amendment, the constitutionality of a traffic stop is

analyzed in the same manner as investigative detentions. United States v.

Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc). The stop must be

justified at its inception and reasonably related in scope to the circumstances

justifying it. Id. An observed traffic violation or a reasonable suspicion of such a

violation under state law plainly justifies a stop. Id. at 787; see also United States

v. Parker, 72 F.3d 1444, 1449 (10th Cir. 1995) (drifting out of travel lane into

emergency lane and failing to signal provided reasonable suspicion). Here, the

issue is whether Utah law requires a driver merging to signal in these

circumstances.

Mr. Gregoire was stopped for not signaling upon entering from the on ramp

onto the travel lane. Aplt. App. 86; 123-124. He was not stopped for attempting

to change lanes; he merely merged from the on-ramp onto the right travel lane of

I-70. Id. at 41, 86. The district court observed that the on-ramp and the travel

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lane are separated by a solid line until a move to the left is required at which

point the solid line becomes a dotted line. Id. at 124.

The district court determined that the statute required a signal in three

instances: when turning, when moving right or left on a roadway, and when

changing lanes. Aplt. App. 130; see also State v. Lopez, 873 P.2d 1127, 1134 n.1

(Utah 1994) (turning without signaling violates statute). It concluded that the

merging in these circumstances constituted moving left onto a roadway, thereby

requiring a signal. Aplt. App. 130. The merge in this case did not constitute

changing lanes because the two lanes become one and the statute’s reference to

right or left movement more specifically described this situation. Id. at 131.

“One cannot merge onto a roadway without moving to the left or the right.” Id.

It rejected Mr. Gregoire’s position as inconsistent with the plain meaning of the

statute and without support in the law.

While the former may be true, the latter is not. In United States v. Powell,

929 F.2d 1190 (7th Cir. 1991), a Seventh Circuit panel determined that a Utah

stop predicated on a failure to signal when merging was invalid and could not

constitute probable cause for a stop. Id. at 1194. The panel determined that the

same Utah statute was ambiguous as applied because it was not clear whether a

highway on-ramp qualified as a lane considered part of the roadway. Id. at 1193.

The panel looked to the Utah Driver Handbook for guidance. Although the

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handbook instructed drivers to signal at intersections, its instructions and a

diagram did not so instruct when merging. Id. at 1193-94. That is still the case.

See Utah Driver Handbook at 12-14, 39-40 (Rev. 2004 Ed.), available at

http://driverlicense.utah.gov/pdf/dlhandbk.pdf (last visited Sept. 19, 2005). The

panel also reasoned that such a signal is not necessary to notify other drivers of a

lane change or turn because (1) other drivers know that the only reason to use an

on-ramp is to merge, (2) such a signal could not be seen from the more distant,

differently elevated, and non-parallel portions of the on-ramp, even with the

requirement for three seconds advance signaling, Utah Stat. Ann. 41-6-69(1)(b).

Powell, 929 F.2d at 1194.

Mr. Gregoire makes similar arguments, but also points out that the

signaling statute never mentions merging. He suggests that “merging involves

pointedly moving a vehicle straight into a lane that, along with one or more other

lanes, transitions into a single lane.” Aplt. Br. at 8 (emphasis in original). He

relies upon Utah Code Ann. § 41-6-75.5 (2004) 2 (repealed and renumbered as

Utah Code Ann. § 41-6a-903(3)), which requires one to yield when merging, and

2
“The operator of a vehicle traveling in a lane that is about to merge
into a continuing lane, shall yield the right-of-way to all vehicles
traveling in the continuing lane and which are so close as to be an
immediate hazard.”

Utah Code. Ann. § 41-6-75.5.

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suggests that because this section does not prescribe the use of a signal, a signal

is not required. This argument is not persuasive because § 41-6-75.5 deals with

right-of-way, so it is not surprising that signaling is not mentioned. Mr. Gregoire

also analogizes merging in these circumstances “to driving around a bend or a

curve; while it is necessary for the driver to steer his vehicle to accommodate the

architecture of the lane, signaling is not necessary.” Aplt. Br. at 9. This analogy

is not completely apt because a driver on an on-ramp must negotiate a more

complex situation. First, the driver must proceed down the ramp and cannot cross

the solid white line and enter into the gore area. 3 Rather, he must wait for the

dotted line indicating it is permissible to merge. Second, the driver must stop at

the end of the on-ramp if no openings in oncoming traffic are possible. Though

the driver’s ultimate objective is to merge, signaling serves as a reminder of the

driver’s presence and intention.

We agree with the district court that the act of merging from the on-ramp

directly onto the right lane of the highway does not constitute a turn or a lane

3
A gore is an area of land where two roadways diverge or converge. It is
defined in Utah as:

the area delineated by two solid white lines that is between a
continuing lane of a through roadway and a lane used to enter or exit
the continuing lane including similar areas between merging or
splitting highways.

Utah Stat. Ann. § 41-6a-102(18).

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change under the statute. Aplt. App. 131. If it were, a signal would have to be

given continuously for the last three seconds before the merge. Of course, a

vehicle cannot merge prior to the dotted line; it cannot cross into the gore area.

See Utah Code Ann. § 41-6a-713(1)(a) (prohibiting operating a vehicle over,

across or within a gore area). Though the issue is close, we believe that the

district court’s factual findings that a successful merge with this on-ramp requires

a move to the left to enter the travel lane is dispositive. Aplt. App. 124 (“At this

point [where the solid line of the on-ramp becomes a dotted line], in order to

properly execute a merge, a move to the left is required to enter the travel lane of

I-70.”). The district court’s factual findings must be upheld unless clearly

erroneous. See United States v. Santos, 403 F.3d 1120, 1124 (10th Cir. 2005). It

was in the best position to confirm the situation described by the trooper in the

suppression hearing. On its own motion, it conducted a site visit of where the

stop occurred (with all parties and the trooper present).

Unlike the Seventh Circuit, we do not find the statute ambiguous as

applied. The travel lane of I-70 (and probably the on-ramp of Exit 158) is a

roadway to which the statute would apply. See Utah Code Ann. § 41-6a-

102(51)(a) (defining “roadway”as “that portion of highway improved, designed,

or ordinarily used for vehicular travel”). And a merge in the situation found by

the district court requires a move to the left for which a signal is required.

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 Although the government argues that merging is the only possible

application of the “move right or left” portion of the statute, other applications

are possible. A vehicle may pull off the roadway onto the shoulder or enter the

roadway from the shoulder. See State v. Preece, 971 P.2d 1, 5 (Utah 1998). This

situation also involves a “move right or left” where the statute would apply and

requires signaling.

The district court initially expressed skepticism at the suppression hearing

that the statute required signaling given the obvious intention of a driver in the

merge lane. However, the government suggested (and the trooper agreed) that the

signal lights make the merging vehicle more visible to upcoming traffic and

clearly express the driver’s intentions. Aplt. App. 88. Although the Seventh

Circuit suggested that the signal might not be seen were the on-ramp at a different

elevation than the highway and not parallel, that does not describe all on-ramps.

Moreover, at the point where a merge is permissible and just prior, visibility to

oncoming traffic should be possible. Regardless, because the meaning of the

statute is clear in these circumstances, we need not debate the wisdom of the

requirement, other than to note a rational purpose. Though it is interesting that

the Utah Driver Handbook omits the requirement to signal--it acknowledges that

the statutes govern. Utah Driver Handbook, intro. (“This handbook condenses or

paraphrases the actual language of the Utah Code. Officers of the courts are

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guided by the full text and exact language of the law, rather than the Utah Driver

Handbook.”).

Having determined that the statute applies, we conclude that on the basis of

his observations, the trooper had reasonable suspicion, indeed probable cause, to

stop Mr. Gregoire. See Whren v. United States, 517 U.S. 806, 817-819 (1996);

Del. v. Prouse, 440 U.S. 648, 661 (1979). Although Mr. Gregoire reminds us that

the trooper was part of a Criminal Interdiction Team focusing on drug

enforcement, stolen vehicles, and driving under the influence, when he stopped

Mr. Gregoire, the subjective motivation of the trooper is not pertinent given the

observed violation. See Whren, 517 U.S. at 818. In his reply brief, Mr. Gregoire

alleges that he was pulled over and detained because he was an African-American

male driving an older model van with out-of-state license plates that fit the

trooper’s profile of a person in the business of narcotics. Aplt. Reply Br. at 10.

That specific claim was not developed in the suppression hearing nor in the

opening brief and is considered waived. And although Mr. Gregoire maintained

that he indeed signaled, the district court credited the sworn testimony of the

trooper to the contrary. Aplt. App. 124 n.3

2. Was the Trooper’s Detention Reasonably Related in Scope to the
Circumstances Justifying the Initial Detention?

In a routine traffic stop, a trooper may request a driver’s license, vehicle

registration and other required papers, run necessary computer checks, and then

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issue any warning or citation. United States v. Rosborough, 366 F.3d 1145, 1148

(10th Cir. 2004). Once those tasks are completed, a driver must be allowed to

proceed on his way unless reasonable suspicion exists that the driver is engaged

in criminal activity or the driver consents to additional questioning. Id. A

consensual encounter is voluntary cooperation with law enforcement in response

to non-coercive questioning. United States v. Hernandez, 93 F.3d 1493, 1498

(10th Cir. 1996). The issue is whether law enforcement conduct as perceived by a

reasonable person would communicate that the person was not free to decline law

enforcement requests or end the encounter. Id.

Mr. Gregoire first argues that no reasonable suspicion existed for detaining

him once the warning had been issued. Once that was done, Mr. Gregoire tells us

that he only wanted to discuss the warning. He argues that the trooper’s true

intentions of drug interdiction are evident from the trooper’s refusal to

accompany him to the rear of the vehicle where he confirmed that his turn signal

was operational. Instead, the trooper continued to peer into the vehicle from the

passenger side of the vehicle. The short answer to this argument is that Mr.

Gregoire was not detained after the warning. He consented to additional

questioning.

3. Did Mr. Gregoire Voluntarily Consent to Further Questioning?

Mr. Gregoire argues that he did not consent voluntarily to additional

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questioning or a prolonged detention. The government bears the burden of

proving voluntary consent based on the totality of the circumstances. United

States v. Sanchez-Valderuten, 11 F.3d 985, 990 (10th Cir.1993). Mr. Gregoire

suggests that the trooper never informed him that the additional questioning

would relate to matters outside the scope of the traffic citation, and that the

trooper never told him he could decline to answer questions. He argues that most

civilians regard law enforcement officers as powerful figures of authority and are

unaware of their right to decline to answer questions without repercussions. Be

that as it may, there is no requirement that law enforcement advise as to the

precise subject of the additional questioning or that a citizen may terminate the

encounter, though this latter factor may be considered in a totality of the

circumstances approach to voluntariness. United States v. Spence, 397 F.3d 1280,

1283 (10th Cir. 2005). Here, the trooper’s request to ask additional questions

came in full daylight on the open road, with no physical restraint or intimidation

of Mr. Gregoire. Although Mr. Gregoire suggests that the trooper was in very

close proximity to him, the district court’s finding of voluntary consent to

additional questioning based on the totality of the circumstances is not clearly

erroneous.

Mr. Gregoire next argues that the trooper lacked an objectively reasonable

belief that Mr. Gregoire committed a traffic violation. This argument is

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predicated upon a holding that merging without signaling under Utah law is not a

violation. Having held to the contrary, we need not address it. Likewise, Mr.

Gregoire’s argument that the stop cannot be justified under the good faith

exception to the exclusionary rule need not be addressed.

4. Was the Search of Mr. Gregoire’s Vehicle Based Upon Voluntary Consent and
Within the Scope of that Consent?

The district court found that Mr. Gregoire twice gave his consent to search

the vehicle, once when he invited the trooper to search it, and once at the request

of the trooper. It noted that the search took place in a public place in daylight,

with no restraint or intimidation of Mr. Gregoire. Aplt. App. 127-28. These

findings are amply supported by the record. Mr. Gregoire has framed his

argument in terms of a holding that the stop was unlawful, nonetheless, we reject

the suggestion that the trooper’s failure to advise him that he was free to leave, or

that he could refuse consent to search, rendered the consent involuntary. Given

our holding that the events which preceded the search were lawful, it is

unnecessary to address Mr. Gregoire’s argument that there was an insufficient

break between a purportedly illegal stop and his consent to search such that

suppression is required.

Mr. Gregoire next argues that the trooper’s search of the vehicle exceeded

the scope of his consent. The scope of consent is a fact question based upon what

a reasonable person would have understood under the circumstances.

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Rosborough, 366 F.3d at 1150. General permission to search a vehicle usually

extends to its entirety, absent objection or limitation by the driver. See United

States v. McRae, 81 F.3d 1528, 1538 (1996). However, a search can be so

invasive or destructive as to exceed the bounds of consent, even absent objection.

United States v. Osage, 235 F.3d 518, 520 (10th Cir. 2000).

Mr. Gregoire points to the transcript of the stop and the trooper’s assurance

that the search would be quick. Aplt. App. 22. He then argues that a reasonable

person would not presume a search lasting 45 minutes, let alone one that began

with the drilling of two holes in the interior and concluded with a large

screwdriver used to pry away a portion of the undercarriage of the vehicle to

reveal the contraband. Aplt. Br. at 23-24. The district court found that Mr.

Gregoire never limited that scope of the search of the vehicle, or asked the

trooper to stop searching the vehicle. Aplt. App. 127, 138.

We approach this issue from the perspective of what a reasonable innocent

person would perceive. See Fla. v. Bostick, 501 U.S. 429, 438 (1991). Here, the

trooper questioned Mr. Gregoire about whether the vehicle contained anything

illegal, including guns, marijuana, cocaine, heroin, or illegal drugs, prior to

obtaining his consent to search. Aplt. App. 22. A reasonable person would

expect more than a cursory view of the vehicle if the trooper were looking for

contraband. See Fla. v. Jimeno, 500 U.S. 248, 251 (1991) (permission to search

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encompasses permission to search containers in car); United States v. Pena, 663

F.2d 1019, 1026 (10th Cir. 1981) (permission to search contemplates a thorough

search; removal of ashtray and air vent cover in side of door was within scope of

consent). Once the trooper detected what appeared to be a false compartment in

the vehicle, he advised Mr. Gregoire that he suspected that something illegal (a

hidden controlled substance) was in the van and the search was going to take

longer. Aplt. App. 23-24. A reasonable innocent person advised of a strong

suspicion of a false compartment in the vehicle could very well expect a more

invasive search to ascertain the contents of that compartment. We have upheld

similar searches involving the partial dismantling of a vehicle pursuant to general

consent when the defendant did not object. See United States v. Marquez, 337

F.3d 1203, 1206, 1208-09 (10th Cir. 2003) (prying nailed-down plywood covering

from RV bench, and unscrewing second plywood covering); McRae, 81 F.3d at

1537 (lifting of trunk carpet held by fastener); United States v. Santurio, 29 F.3d

550, 553 (10th Cir. 1994) (removing screws from strip holding down carpet which

revealed false compartment in van); United States v. Espinosa, 782 F.2d 888, 892

(10th Cir. 1986) (lifting up loose part of quarter panel).

Mr. Gregoire argues that he in fact did withdraw his consent to search and

unequivocally objected to the search and his detention. The trooper testified to

the contrary. Aplt. App. 60. Mr. Gregoire points to the transcript of the stop

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where he stated “I [sic] planning to be home” and “Isn’t that illegal. You’re not

supposed to search the car.” Id. at 23. These comments came after the trooper

advised Mr. Gregoire of his suspicion that the vehicle contained a hidden

controlled substance and occurred several minutes before the drilling and prying.

The trooper responded to these comments by telling Mr. Gregoire “we’re going to

be a few more minutes.” Id. at 23. Apparently, the trooper did not interpret Mr.

Gregoire’s comments as a request to stop.

We think the district court could arrive at a finding that consent was not

withdrawn or limited by these somewhat ambiguous statements, particularly when

placed in the context of Mr. Gregoire’s surrounding statements attempting to

exculpate himself. Though it might be possible to arrive at a contrary finding,

given two permissible views of the evidence, the district court’s findings are not

clearly erroneous. The district court’s decision on the motion to suppress follows

from its carefully considered factual findings. Accordingly, the judgment and

sentence must be

AFFIRMED.

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