FILED
United States Court of Appeals
Tenth Circuit
December 18, 2007
Elisabeth A. Shumaker
PUBLISH Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 06-3111
KENNETH LYONS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 03-CR-40144-01-RDR)
Submitted on the briefs:
Eric F. Melgren, United States Attorney, and James A. Brown, Assistant United
States Attorney, Topeka, Kansas, for Plaintiff - Appellee
Michael G. Highland, Bonner Springs, Kansas, for Defendant - Appellant.
Before O’BRIEN, HOLLOWAY and HOLMES, Circuit Judges.
O’BRIEN, Circuit Judge.
This case involves a vehicle stop, which led to the discovery of fifty-one
pounds of cocaine hidden in the spare tire. Kenneth Lyons appeals from the
district court’s denial of his motion to dismiss the indictment for want of a speedy
trial and denial of his motion to suppress evidence. In his plea agreement, he
waived his right to appeal from the resolution of the speedy trial issue and
therefore we dismiss that portion of the appeal. His suppression issues
(justification for the stop, continued detention after the stop, voluntariness of his
consent to search and probable cause to search) are properly presented. We
affirm with respect to the suppression issues.
I. FACTUAL BACKGROUND
On December 11, 2003, at approximately 10:00 p.m., Kansas Highway
Patrol Trooper Jarett Ranieri was parked in the median of Interstate 70 (I-70) in
Greary County, Kansas. His vehicle faced Eastbound I-70. Trooper Andrew
Dean was parked next to Ranieri. Both troopers had their vehicles’ headlights on;
there were no other lights on the roadway. Because Eastbound I-70 sits higher
than the median, Ranieri and Dean were parked on an incline, causing their
vehicles’ headlights to illuminate the undercarriages of passing vehicles.
While parked in the median, Ranieri noticed a white Chevy Trailblazer.
The body of the vehicle was dirty and salty but the spare tire attached to its
undercarriage was clean and “didn’t have a spec of road film on it at all.” (R.
Vol. 3 at 16.) Based on the difference in weather conditions between that day
(clear and dry) and the previous one (snowy/rainy), Ranieri suspected the spare
tire had been placed on the vehicle that day. He also suspected the tire might
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contain contraband because in his experience spare tires are frequently used to
hide drugs. Ranieri decided to follow the vehicle and run its license plate
number.
Once Ranieri caught up with the vehicle, he noticed the license plate was
so dirty it was unreadable. Moving closer, he was able to read the plate but not
the expiration sticker. Ranieri also noticed the spare tire was hanging lower than
normal. Because the dirty plate and tag violated Kansas traffic law (Kan. Stat.
Ann. § 8-133) and based on his suspicions regarding the spare tire, Ranieri
decided to pull the vehicle over. He activated his emergency lights.
Once the vehicle pulled over, Ranieri walked up to it from behind and
wiped away the dirt covering the expiration tag and the name of the issuing state
(Virginia) with his fingers. He then approached the driver’s side window; Lyons
was sitting in the driver’s seat. Ranieri told Lyons that he had stopped his vehicle
because its expiration tag was covered with dirt and unreadable and that he had
cleaned the tag. Lyons and his passenger, Letty Sierra De Maldonado, informed
Ranieri they had traveled to Denver, Colorado, for vacation and were heading
back to Fort Lauderdale, Florida. Ranieri asked for Lyons’ driver’s license and
the vehicle’s registration. Lyons gave him his Florida driver’s license and the
vehicle’s rental agreement. While standing at the driver’s side window, Ranieri
noticed two cellphones (which in his experience are used by drug traffickers to
communicate) and a radar detector; he also smelt air freshener (which in his
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experience is often used to mask the smell of drugs).
On the way back to his patrol car to verify Lyons’ driver’s license, Ranieri
took a closer look at the spare tire, which was illuminated by his patrol vehicle’s
headlights. He noticed the rim was salty and dirty but the actual tire was clean.
He also observed fingerprints on the tire and tool marks where the rim and tire
meet. This raised Ranieri’s suspicions that the tire had been placed on the rim
that day. Ranieri further noticed the tire was a different brand and larger than the
four tires on the vehicle.
Once in his patrol vehicle, Ranieri performed a criminal history check on
Lyons and filled out a warning ticket. Ranieri learned Lyons had a criminal
history involving drug possession and trafficking. He also noticed the rental
agreement was two weeks overdue. While Ranieri was in his patrol vehicle,
Trooper Dean approached. Ranieri informed him he believed the spare tire
contained contraband and told him to look at the tire. Dean complied and
confirmed Ranieri’s suspicions that the tire had been removed from the vehicle
and there was something in it.
Ranieri returned to the driver’s side window and handed Lyons his driver’s
license, the rental agreement and the warning ticket. Once he returned the
paperwork, Ranieri thanked Lyons and De Maldonado for their time and took a
step back from the vehicle. De Maldonado then asked Ranieri where the nearest
car wash was located; Ranieri took a step toward the vehicle and told them the
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closest car wash was in Topeka. Ranieri stepped back from the car again. The
following discussion ensued:
Ranieri: I was just going to ask you before you take off, I noticed you
kind of have a history . . . of drugs and stuff, do you . . . have
anything illegal in here . . . .
Lyons: No.
Ranieri: No type of illegal drugs or anything?
Lyons: No.
Ranieri: Can I look in, can I look in the back?
Lyons/De Maldonado: [Inaudible]
Ranieri: I was kind of wondering about that rental agreement, is that an
old one? Or is it just . . . .
Lyons: I had it extended because . . . .
Ranieri: Oh, did you call and get it extended? Okay, well that makes
sense then. But you wouldn’t have anything illegal . . . in here
...?
Lyons: No, not at all, sir.
Ranieri: Any type of drugs, cocaine, marijuana, or anything like that?
Lyons: No.
Ranieri: Okay, can I look in the back, would you mind if I looked in the
back?
Lyons: Go ahead.
Ranieri: Okay.
(R. Supp. Vol. II at 22:08:12-22:08:47.)
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Ranieri went to the back of the vehicle to look for the tools to lower the
spare tire. As he was searching for the tools, he discovered four cans of Fix-A-
Flat Tire, which further raised his suspicions regarding the spare tire because he
had never seen Fix-A-Flat Tire in a rental vehicle. That led him to believe Lyons
and De Maldonado were concerned about getting a flat tire because the spare tire
was inoperable. Unsuccessful in finding the tools to lower the spare tire, Ranieri
retrieved a stethoscope from his patrol vehicle. He performed an “echo test” on
the tire with the stethoscope, which involves hitting it with an object and noting
the sound. (R. Vol. 3 at 34.) A normal tire will project a loud ring when hit
whereas a tire with something in it will project a low thud. When Ranieri hit the
tire with his ASP 1 baton, he heard a low thud.
Ranieri then asked Lyons if he knew where the tools to release the spare
tire were located. Lyons stated he did not know. Ranieri eventually discovered
the tools under the rear bench seat. Using the tools, Ranieri lowered the spare
tire. When he did so the vehicle rose up indicating the tire was very heavy,
reinforcing Ranieri’s suspicion that drugs were hidden inside. Once the tire was
lowered Ranieri pulled it from under the vehicle. It was extraordinarily heavy.
Using a knife, Ranieri cut the tire open, discovering fifty-one pounds of cocaine.
The traffic stop was captured by the video camera in Ranieri’s patrol
1
ASP stands for Armament Systems and Procedures, Inc., a company
which offers police officer training and products. See http://www.asp-net.com
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vehicle. Although normally the camera begins recording when the vehicle’s
emergency lights are activated, the camera’s videotape was stopped on another
recorded traffic stop Ranieri had been watching before pulling over Lyons’
vehicle. As a result, to avoid taping over the other traffic stop, the camera
automatically fast-forwarded to a clean portion of tape before beginning to record
in this case. Because of that delay the camera did not begin recording until after
Ranieri was already at the driver’s side window—after he had cleaned the license
plate and expiration tag. The record is confounded by another problem.
Although Ranieri wears a microphone, he forgot to activate it until he approached
the vehicle the second time to return Lyons’ paperwork. Therefore, the videotape
has no audio until this time.
II. PROCEDURAL BACKGROUND
Lyons was indicted for possession with intent to distribute more than five
kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18
U.S.C. § 2 (Count I) and conspiracy to possess with intent to distribute in excess
of five kilograms of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 and
18 U.S.C. § 2 (Count II). He filed a motion to dismiss the indictment, arguing the
allegedly prejudicial delay between the filing of the indictment and the time he
made his initial appearance violated his speedy trial rights. He also filed a
motion to suppress evidence, claiming the stop of his vehicle, his subsequent
detention and the search of his vehicle and its spare tire were all unlawful under
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the Fourth Amendment.
The district court held a hearing on Lyons’ motions; Ranieri was the only
witness. The parties also submitted the videotape of the traffic stop and pictures
of Lyons’ vehicle taken after Lyons’ arrest. The court denied both motions.
Thereafter, Lyons pled guilty to Count II and was sentenced to 151 months
imprisonment.
III. DISCUSSION
Lyons complains of the district court’s denials of his motions to dismiss the
indictment and suppress evidence.
A. Motion to Dismiss the Indictment
Lyons was arrested after the traffic stop and indicted on December 17,
2003. He posted bond and then absconded. Lyons was re-arrested in Florida on
September 18, 2004, transported to Kansas on October 29, 2004, but was not
brought to court for his initial appearance until January 13, 2005, seventy-seven
days later. Lyons claims this seventy-seven day delay violated his speedy trial
rights under the Sixth Amendment and the Speedy Trial Act, 18 U.S.C. §§ 3161-
3174. The government claims Lyons waived the right to appeal this claim in his
plea agreement. The government is correct.
In determining whether an appeal is precluded by a defendant’s plea
agreement waiver of appellate rights, we consider: “(1) whether the disputed
appeal falls within the scope of the waiver . . . ; (2) whether the defendant
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knowingly and voluntarily waived his appellate rights; and (3) whether enforcing
the waiver would result in a miscarriage of justice.” United States v. Hahn, 359
F.3d 1315, 1325 (10th Cir. 2004). A miscarriage of justice occurs when (1) the
district court relies on an impermissible factor such as race, (2) ineffective
assistance of counsel in connection with the negotiation of the waiver renders the
waiver invalid, (3) the sentence exceeds the statutory maximum, or (4) the waiver
is otherwise unlawful, i.e., the error seriously affects the fairness, integrity or
public reputation of judicial proceedings. Id. at 1327.
In his plea agreement, Lyons waived his right to appeal any matter in
connection with his prosecution, conviction and sentence except (1) “matters
relating to suppression issues decided by the Court” and (2) an upward departure
from the applicable guideline range. (R. Vol. 1, Doc. 43, Attached Plea
Agreement at 2.) Lyons’ challenge to the court’s denial of his motion to dismiss
the indictment does not fit within either of these exceptions and therefore it is
within the scope of the waiver. See United States v. Najera, 87 Fed. App. 91, 93
(10th Cir. 2004) (unpublished) (concluding defendant’s conditional plea
agreement reserving his right to appeal his sentence and the denial of his motion
to suppress did not reserve his right to advance any argument under the Speedy
Trial Act). 2
2
Unpublished opinions are not binding precedent. 10th Cir. R. App. P.
32.1(A). We mention Najera as we would an opinion from another circuit,
persuasive because of its reasoned analysis.
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Lyons has not demonstrated his waiver was other than knowing and
voluntary. In his opening brief he merely states he “reserv[ed] the right to appeal
the post-indictment delay,” which he did not. (Appellant’s Br. at 3.) Moreover,
he did not file a reply brief to respond to the government’s waiver argument. See
United States v. Anderson, 374 F.3d 955, 958-59 (10th Cir. 2004) (concluding
defendant had knowingly and voluntarily entered into appellate waiver because he
failed to claim otherwise on appeal).
Finally, we conclude enforcement of the waiver would not result in a
miscarriage of justice. The district court did not rely on an impermissible factor,
there is no claim defense counsel was ineffective in negotiating the waiver,
Lyons’ sentence did not exceed the statutory maximum of life imprisonment, see
21 U.S.C. §§ 841(b)(1)(A)(ii), 846, and there is no claim that the waiver is
otherwise unlawful. Consequently, we enforce Lyons’ waiver of appellate rights
and dismiss his appeal from the denial of his motion to dismiss the indictment.
B. Motion to Suppress
Lyons argues the district court erred in denying his motion to suppress. He
challenges the initial stop of his vehicle, his continued detention after Ranieri
returned his license and other paperwork and the search of his vehicle and its
spare tire. “In reviewing the denial of a motion to suppress, we accept the factual
findings of the district court unless they are clearly erroneous.” United States v.
West, 219 F.3d 1171, 1176 (10th Cir. 2000). However, we review de novo the
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ultimate determination of reasonableness under the Fourth Amendment. Id.
1. Initial Traffic Stop
Lyons argues the initial stop of his vehicle violated the Fourth Amendment.
The district court concluded the initial traffic stop was lawful because Ranieri had
a reasonable articulable suspicion that a violation of Kan. Stat. Ann. § 8-133 was
occurring. We see no error.
A traffic stop is a seizure under the Fourth Amendment and must be
objectively reasonable to pass constitutional muster. Delaware v. Prouse, 440
U.S. 648, 653-54 (1979); see also United States v. Ozbirn, 189 F.3d 1194, 1197
(10th Cir. 1999). In order to be reasonable, a traffic stop must be “justified at its
inception.” United States v. Williams, 271 F.3d 1262, 1266 (10th Cir. 2001)
(quotations omitted). “[A] traffic stop is valid [at its inception] if the stop is
based on an observed traffic violation or if the police officer has reasonable
articulable suspicion that a traffic or equipment violation has occurred or is
occurring.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995)
(en banc).
Ranieri stopped Lyons’ vehicle because its license plate was dirty and he
could not read the expiration tag – a violation of Kan. Stat. Ann. § 8-133 which
requires a vehicle’s license plate to “be maintained free from foreign materials
and in a condition to be clearly legible.” See State v. Hayes, 660 P.2d 1387, 1389
(Kan. Ct. App. 1983) (“[T]he display of an illegible or obscured vehicle tag is a
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violation of K.S.A. 8-133 even if the vehicle is duly licensed in another state.”). 3
Consequently, Ranieri was justified in stopping Lyons’ vehicle because he had a
reasonable articulable suspicion that a traffic or equipment violation was
occurring.
Lyons’ attempts to refute this conclusion are unavailing. Contrary to
Lyons’ arguments, Ranieri’s testimony is not the only evidence establishing the
license plate and expiration tag were dirty and unreadable. The district court
found, and we agree, that pictures of the license plate taken after the incident
support Ranieri’s testimony that he wiped away the dirt covering the expiration
tag and the name of the issuing state. But a lack of corroborating evidence would
not necessarily be fatal.
Ranieri’s testimony that the plate and tag were dirty and unreadable is
sufficient, if credible. The trial court found it so and we see no reason to disturb
the credibility determination. While Ranieri’s failure to insure his patrol
vehicle’s video camera was recording when he wiped the dirty license plate could
contribute to an adverse credibility finding, it is clearly insufficient to overturn a
3
The plate and tag were not illegible due to the current weather conditions
(the weather was clear and dry) or a factor outside Lyons’ control. See United
States v. Edgerton, 438 F.3d 1043, 1050-51 (10th Cir. 2006) (concluding no
violation of Kan. Stat. Ann. § 8-133 occurs when the officer’s inability to read a
license plate or temporary registration tag is due to an external condition, i.e.,
“snow, rain, fog, glare, or . . . an officer’s poor eyesight,” as opposed to a factor
within the defendant’s control, i.e., mounting a license plate too low or leaving it
covered with dirt).
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favorable one. Also, the district court considered the equipment explanation
sufficient and so should we. The same can be said about the government’s failure
to produce the warning ticket during discovery. 4 Ranieri testified he gave the
warning ticket to Lyons and the court found Ranieri credible, possible contrary
implications notwithstanding.
The trial court’s ultimate conclusion, based upon the totality of the
evidence, including credibility findings, was that Ranieri had reasonable,
articulable suspicion for the stop. Giving full measure to Lyons’ arguments
(individually and collectively), we cannot say that conclusion was not justified. 5
Moreover, because there was a violation of Kan. Stat. Ann. § 8-133,
Ranieri could temporarily detain Lyons, while requesting his driver’s license and
vehicle registration, running a criminal history check and issuing him a warning
ticket. See United States v. Karam, 496 F.3d 1157, 1161 (10th Cir. 2007). Our
decisions in United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), and United
States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006), are not to the contrary.
4
No Brady violation is claimed or apparent. See Brady v. Maryland, 373
U.S. 83, 87 (1963) (holding “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution”).
5
Because Ranieri had reasonable suspicion to stop Lyons’ vehicle under
Kan. Stat. Ann. § 8-133, it is unnecessary to address Lyons’ arguments
challenging Ranieri’s ability to observe from the median that the spare tire was
cleaner than the rest of the vehicle, another potential justification for the stop.
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In McSwain, an officer stopped McSwain’s vehicle because he was unable
to read the expiration date on its temporary registration sticker. Upon
approaching the vehicle, he observed the sticker was valid and current.
Nevertheless, the officer obtained McSwain’s driver’s license and vehicle
registration, questioned him about his travel plans, ran a criminal history check
and eventually received consent to search the vehicle. The search revealed drugs
and a gun. McSwain argued that although the initial stop of his vehicle was
proper, his subsequent detention was unreasonable. We agreed:
[The officer] stopped Mr. McSwain for the sole purpose of ensuring the
validity of the vehicle’s temporary registration sticker. Once [the officer]
approached the vehicle on foot and observed that the temporary sticker was
valid and had not expired, the purpose of the stop was satisfied. [The
officer’s] further detention of the vehicle to question Mr. McSwain about
his vehicle and travel itinerary and to request his license and registration
exceeded the scope of the stop’s underlying justification.
29 F.3d at 561.
In Edgerton, Trooper Dean stopped Edgerton’s vehicle because he could
not read its temporary registration tag. The tag was not unreadable due to any
obstruction but solely because “‘it was dark out.’” 438 F.3d at 1045. Once Dean
approached the vehicle on foot with his flashlight, he had no difficulty reading
the tag and determined it was valid. Nevertheless, Dean requested and obtained
Edgerton’s driver’s license and vehicle registration, inspected the vehicle’s
undercarriage and issued Edgerton a warning ticket for violating Kan. Stat. Ann.
§ 8-133. After returning Edgerton’s paperwork and issuing her the ticket, Dean
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received permission to search the vehicle’s trunk, eventually leading to the
discovery of cocaine. While we rejected Edgerton’s challenge to the initial stop
of her vehicle, we concluded her continued detention even after Dean was able to
read and discern the temporary registration tag’s validity was unlawful:
Once Trooper Dean was able to read the . . . tag and deem it unremarkable,
any suspicion that [Edgerton] had violated § 8-133 dissipated because the
tag was in “in a place and position to be clearly visible.” At that point,
McSwain instructs us for better or worse that Trooper Dean, as a matter of
courtesy, should have explained to [Edgerton] the reason for the initial stop
and then allowed her to continue on her way without requiring her to
produce her license and registration.
Id. at 1051.
The officers in McSwain and Edgerton were justified in stopping the
defendant’s vehicle based on a reasonable suspicion that a traffic violation was
occurring but that suspicion evaporated once they observed no violation had
occurred. Once their suspicion evaporated, the officers had no reason to continue
to detain the vehicle or its occupants and therefore their subsequent actions
(requesting the drivers’ documents, running a criminal history check, inquiring
about travel plans and seeking consent to search) were unlawful. This case stands
in sharp contrast. Ranieri’s suspicion for stopping Lyons’ vehicle (illegible
expiration tag) did not evaporate, but rather was confirmed, once he stopped
Lyons’ vehicle. Therefore, Ranieri’s detention of Lyons while performing a
license and vehicle registration check and issuing a warning ticket did not violate
the Fourth Amendment. See United States v. Ledesma, 447 F.3d 1307, 1312-14
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(10th Cir. 2006) (holding officer’s detention and questioning of the defendant
after stopping her vehicle because he did not observe a license plate were lawful;
although officer was able to observe a registration tag once he stopped the
vehicle, the tag was not displayed “in a place and position to be clearly visible”
as required by Kan. Stat. Ann. § 8-133); see also United States v. DeGasso, 369
F.3d 1139, 1149 (10th Cir. 2004) (concluding the officer’s detention of the
defendant was lawful because the officer observed a continuing violation of state
law after stopping the defendant’s vehicle). 6
2. Continued Detention
Lyons argues his continued detention after Ranieri returned his driver’s
license, the rental agreement and the alleged warning ticket was unlawful even if
the initial stop was proper.
In addition to being justified at its inception, a lawful traffic stop must be
“reasonably related in scope to the circumstances which justified the interference
in the first place.” Williams, 271 F.3d at 1266. “A seizure that is justified solely
by the interest in issuing a warning ticket to the driver may become unlawful if it
is prolonged beyond the time reasonably required to complete that mission.”
6
Even if the original purpose of the stop was satisfied prior to Ranieri
questioning Lyons and requesting his driver’s license and vehicle registration, it
may well be that Ranieri’s suspicions about the spare tire were enough to justify a
license and registration check. McSwain and Edgerton involved no such
additional facts. This issue is best left for another day since it is unnecessary to
our decision.
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Illinois v. Caballes, 543 U.S. 405, 407 (2005); see also United States v. Wood,
106 F.3d 942, 945 (10th Cir. 1997) (“An investigative detention must be
temporary, lasting no longer than necessary to effectuate the purpose of the stop,
and the scope of the detention must be carefully tailored to its underlying
justification.”). Therefore, once an officer returns the driver’s license and vehicle
registration and issues a warning ticket, he must allow the driver to proceed
without further detention or questioning unless the officer has an objectively
reasonable and articulable suspicion that the driver is engaged in illegal activity.
Karam, 496 F.3d at 1161.
In determining whether an officer had reasonable suspicion to continue to
detain a driver after returning the driver’s paperwork and issuing a warning ticket,
we look to “the totality of the circumstances to see whether the officer had a
particularized and objective basis for suspecting legal wrongdoing.” United
States v. Williams, 403 F.3d 1203, 1207 (10th Cir. 2005) (quotations omitted).
“This process allows officers to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information
available to them that might elude an untrained person.” United States v. Santos,
403 F.3d 1120, 1134 (10th Cir. 2005) (quotations omitted). We give deference to
“an officer’s ability to distinguish between innocent and suspicious actions.”
Williams, 403 F.3d at 1207. “Reasonable suspicion, however, may not be derived
from inchoate suspicions and unparticularized hunches.” Williams, 271 F.3d at
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1268.
The district court concluded that after the driver’s license and other
paperwork were returned to Lyons, Ranieri had reasonable suspicion to believe
Lyons was engaged in illegal activity:
Prior to the time that Trooper Ranieri returned defendant Lyons’[s] driver’s
license and other documents, he had an objectively reasonable suspicion
that illegal drugs were being transported in [Lyons’ vehicle]. He knew that
the [vehicle] was a rental vehicle traveling east on I-70. He knew the spare
tire was a different brand and a larger size than the tires on the four wheels.
The spare tire looked suspiciously clean and appeared to be carried lower
on the vehicle than normal. It had fingerprints and tool marks on it.
Ranieri knew that spare tires are often used to smuggle drugs. He knew
that defendant Lyons had a criminal history for drug possession and
trafficking. In addition, Ranieri noticed a radar detector in the vehicle and
thought he smelled air freshener.
Under these circumstances, the court believes Ranieri had sufficient
grounds to continue [Lyons’] detention to ask questions relevant to drug
transportation and to request consent to search the vehicle.
(R. Vol. 1, Doc. 35 at 12-13.) 7 We agree that these factors, considered in their
totality, provided Ranieri reasonable suspicion to continue to detain Lyons.
Lyons does not challenge the existence of these factors or their relevancy to
the reasonable suspicion analysis. Rather, relying on McSwain, he asserts that
once Ranieri returned his paperwork to him and issued the alleged warning ticket,
7
The district court also concluded Lyons consented to the continued
detention and questioning. While an officer may lawfully detain a motorist for
questioning unrelated to the initial stop if the motorist voluntarily consents, see
Karam, 496 F.3d at 1161, because we conclude Ranieri had reasonable suspicion
of criminal activity, we need not address whether the continued detention of
Lyons was consensual.
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the purpose of the stop was satisfied and any further detention was improper.
McSwain is clearly distinguishable. There, once the purpose of the stop was
satisfied by the officer verifying the validity of the temporary registration sticker,
the officer had no further reason to continue to detain McSwain. Here, once the
purpose of the stop was satisfied (issuing Lyons a warning ticket and returning his
paperwork) Ranieri had reasonable suspicion of other criminal activity based
upon his concerns about the spare tire. His continued detention of Lyons to
facilitate further investigation of those suspicions was permissible.
3. Search of Vehicle and Spare Tire
Lyons argues the warrantless search of his vehicle, including its spare tire,
violated the Fourth Amendment. The district court determined (1) the search of
the back of Lyons’ vehicle, including the visual examination of the spare tire, was
justified by Lyons’ unequivocal consent to Ranieri’s request to “look in the
back,” (2) even if the scope of Lyons’ consent did not extend to the visual
examination of the spare tire, this examination did not require consent because it
was not a search under the Fourth Amendment, and (3) Ranieri’s lowering of the
spare tire and cutting it open was justified by probable cause.
a) Consent to Search
Lyons claims his consent to search was not voluntary and even if it was, the
search exceeded the scope of his consent.
(i) Voluntariness of Consent
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In the district court, Lyons argued he never gave Ranieri permission to look
in the back of his vehicle. He takes a different approach on appeal, claiming his
permission to look in the back of the vehicle was not freely and voluntarily given.
He asserts he felt extreme pressure to consent because of the presence of two
police officers and his reluctance to provide consent is evidenced by the fact
Ranieri had to repeatedly (actually, twice) ask for his permission to look in the
back of the vehicle. 8
Normally, we do not review issues raised for the first time on appeal.
United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004). However, this
rule is not jurisdictional and it is within our discretion to address an issue not
raised in the district court. United States v. Jarvis, 499 F.3d 1196, 1201 (10th
Cir. 2007). We generally only exercise this “in the most unusual circumstances.”
Our discretion allows us to determine an issue raised for the first time on appeal
if it is a pure matter of law and its proper resolution is certain. Id. at 1202.
While the determination of whether Ranieri’s consent to “look in the back” was
8
During his cross-examination of Ranieri at the suppression hearing, Lyons
suggested Ranieri asked him five times to “look in the back.” In addition to
Ranieri’s first request, “Can I look in, can I look in the back?,” Lyons counts
“Okay, can I look in the back, would you mind if I looked in the back?” as
Ranieri asking for permission twice. We disagree. After Lyons’ responds “go
ahead,” Ranieri asks Lyons for permission to pat him down and look in the
vehicle’s passenger compartment for weapons. In doing so, Ranieri says “if I
look in the back” twice. Lyons attempts to count each of these statements as a
request to “look in the back.” It is apparent from the videotape, however, that
Ranieri is merely explaining why he is requesting to perform a pat-down search
and search of the passenger compartment for weapons.
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voluntary is a question of fact, United States v. Zubia-Melendez, 263 F.3d 1155,
1162 (10th Cir. 2001), the issue has been fully briefed by the parties and the
record is sufficiently developed. In particular, the videotape of the stop shows
the conditions under which Lyons consented. Its proper resolution is certain.
Consequently, we exercise our discretion to address the issue.
“[W]arrantless searches violate the Fourth Amendment unless they fall
within a specific exception to the warrant requirement.” Zubia-Melendez, 263
F.3d at 1162. Consent is one such exception and therefore, “a vehicle may be
searched if a person in control of the vehicle has given his voluntary consent to
the search.” Id. Whether voluntary consent was given is a question of fact
determined by the totality of the circumstances. Id. The government bears the
burden of showing the consent was voluntary. Id. To meet its burden, the
government (1) “must proffer clear and positive testimony that consent was
unequivocal and specific and freely given” and (2) “prove that this consent was
given without implied or express duress or coercion.” Id. (quotations omitted).
The videotape of the incident shows that Ranieri asked Lyons twice for
permission to “look in the back.” See supra at 5-6. Lyons’ response to the first
request is inaudible but it appears Lyons did not directly respond to the request
because whatever he said led Ranieri to ask him about the overdue rental
agreement. In any event, it is clear Lyons did not say “no.” However, when
Ranieri asked him the second time, Lyons unequivocally responded “‘go ahead’”
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and unlocked the back door. (Id.; R. Vol. 3 at 71.) Nothing in the exchange
suggests Lyons’ grant of permission was involuntary. Indeed, the videotape
shows Ranieri’s manner and tone of voice when seeking permission to search was
pleasant, not intimidating. See Concepcion-Ledesma, 447 F.3d at 1314-15
(stating an officer’s pleasant manner and tone of voice are factors demonstrating
voluntariness of consent). The fact Trooper Dean was also present does not affect
our conclusion. While the threatening presence of multiple officers is a factor in
determining whether an individual’s consent is voluntary, id. at 1314, it is but one
factor and there is no evidence Dean’s presence was coercive or threatening. In
fact, when Lyons gave Ranieri permission to search, Dean was standing on the
other side of the vehicle.
(ii) Scope of Consent
Lyons argues that even assuming his consent was voluntary, the search
exceeded the scope of his consent. Specifically, he asserts that when he gave
Ranieri permission to look in the back of his vehicle, he had a right to believe
Ranieri was only going to look in the back of the vehicle, not under it, and
certainly not remove the tire and cut it open.
The scope of the consent determines the scope of the search. United States
v. Osage, 235 F.3d 518, 520 (10th Cir. 2000). “In determining the scope of a
defendant’s consent, [the question is] what a reasonable person would have
understood by the exchange between the defendant and police officer.” United
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States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999). A “court determines from
the totality of the circumstances whether a search remains within the boundaries
of the consent, viewing the evidence in the light most favorable to the
government.” West, 219 F.3d at 1177. Generally, “where a suspect does not limit
the scope of a search, and does not object when the search exceeds what he later
claims was a more limited consent, an officer is justified in searching the entire
vehicle.” Id. (quotations omitted).
Once Lyons consented to Ranieri “look[ing] in the back,” Ranieri went to
the back of the vehicle and began searching for the tools to lower the spare tire.
He did not find the tools, but found four cans of Fix-A-Flat Tire. He then
performed an “echo test” on the spare tire with a stethoscope. After performing
the “echo test,” he looked under the rear bench seat where he found the tools to
lower the spare tire. We agree with the district court that Lyons’ consent to
Ranieri’s request to “look in the back” allowed Ranieri to search the back of the
vehicle and Lyons does not contend otherwise. Although the district court did not
specifically address the issue, we conclude Lyons’ consent also permitted Ranieri
to look under the rear bench seat after performing the “echo test” on the tire.
This conclusion is bolstered by Lyons’ failure to object to Ranieri searching
under the rear bench seat or otherwise attempting to limit the scope of his consent
(and he had plenty of opportunity to do so while Ranieri was looking in the back
of the vehicle and performing the “echo test”).
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We also agree with the district court that it is unnecessary to decide
whether Lyons’ consent to “look in the back” allowed Ranieri to visually examine
the spare tire underneath the vehicle because such conduct does not constitute a
search for purposes of the Fourth Amendment. See United States v. Rascon-Ortiz,
994 F.2d 749, 754 (10th Cir. 1993) (because the undercarriage of a vehicle is part
of its exterior and not afforded a reasonable expectation of privacy, an officer’s
brief visual examination of it is not a search under the Fourth Amendment).
However, the court’s conclusion was limited to visual inspection of the tire and
Ranieri did more than simply visually examine the spare tire; he also performed
an “echo test,” which required him to hit the tire while listening to it with a
stethoscope. Nevertheless, we conclude this conduct was also within the scope of
Lyons’ consent. 9
9
Whether an “echo test” is a search presents a close and interesting issue.
A search under the Fourth Amendment “occurs when an expectation of privacy
that society is prepared to consider reasonable is infringed.” United States v.
Jacobsen, 466 U.S. 109, 113 (1984). It is clear there is no reasonable expectation
of privacy in a vehicle’s undercarriage. Rascon-Ortiz, 994 F.2d at 754. However,
does this extend to a spare tire attached to that undercarriage, in particular, to the
contents of that spare tire, which is the information gleaned from an “echo test”?
See United States v. Nicholson, 144 F.3d 632, 639-40 (10th Cir. 1998) (although
an individual may expect his personal luggage to be subject to certain contact by
other passengers, he has a reasonable expectation that it will not be manipulated
in such a manner as to reveal its contents and therefore officers’ touching,
pressing and manipulating of defendant’s luggage in such a way as to determine if
hard bundles were inside was a search). If there is a reasonable expectation of
privacy in the contents of a spare tire, is an “echo test” nevertheless so minimally
intrusive, and the information gleaned therefrom so limited, as to not rise to the
level of a search? See, e.g., United States v. Place, 462 U.S. 696, 707 (1983)
(finding dog sniff of luggage not a search due to its minimal intrusiveness and the
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A reasonable person may have understood that Lyons consent to “look in
the back” extended to Ranieri hitting the tire and listening to the resulting
sound. 10 Regardless, Lyons did not object to an “echo test” or make any attempt
to limit the scope of his consent at that time. His current objection is late
blooming and convenient. His consent to “look in the back” rendered the entire
rear portion of Lyons’ vehicle, including the rear part of its undercarriage and the
spare tire attached thereto, fair game for all that might be revealed to the senses.
It may have extended further.
Lyons also claims his consent did not give Ranieri permission to remove
the spare tire and cut it open. Because we agree with the district court that
limited information obtained therefrom). We need not decide this issue, however,
because the scope of Lyons’ consent extended to Ranieri performing the “echo
test.”
10
Ranieri could have simply hit the spare tire and listened to the resulting
sound without the stethoscope. We do not consider the use of a stethoscope
significant under the circumstances. Use of such sense-enhancing devices by
police officers generally does not affect the Fourth Amendment analysis.
Compare Texas v. Brown, 460 U.S. 730, 739-40 (1983) (police officer’s use of
flashlight to illuminate interior of car and shifting of his position to obtain a
better view of car’s interior not a search) and Rascon-Ortiz, 994 F.2d at 755
(brief visual inspection of undercarriage of vehicle with flashlight and mirror not
a search) with Kyllo v. United States, 533 U.S. 27, 34 (2001) (“We think that
obtaining by sense-enhancing technology any information regarding the interior
of the home that could not otherwise have been obtained without physical
intrusion into a constitutionally protected area, constitutes a search -- at least
where . . . the technology in question is not in general public use.”) (quotations
and citation omitted). The stethoscope merely enhanced sounds Ranieri could
have heard (like Brown and Rascon-Ortiz) rather than revealed information he
could not have otherwise obtained (like Kyllo).
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Ranieri’s removal of the spare tire and cutting it open were supported by probable
cause, infra § b), we need not address Lyons’ argument that his consent did not
extend to these actions. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1261
(10th Cir. 2006) (stating consent to search vehicle unnecessary where probable
cause exists).
b) Probable Cause to Search
Another exception to the Fourth Amendment’s warrant requirement is the
automobile exception. United States v. Sparks, 291 F.3d 683, 690 (10th Cir. 2002).
Under this exception, an officer who has “probable cause to believe there is
contraband inside an automobile that has been stopped on the road may search it
without obtaining a warrant.” Id. (quotations omitted). “If probable cause justifies
the search of a lawfully stopped vehicle, it justifies the search of every part of the
vehicle and its contents that may conceal the object of the search.” United States v.
Ross, 456 U.S. 798, 825 (1982). An officer has probable cause to search a vehicle if
“under the totality of the circumstances there is a fair probability that the car
contains contraband or evidence.” United States v. Jurado-Vallejo, 380 F.3d 1235,
1238 (10th Cir. 2004) (quotations and emphasis omitted). “In determining whether
probable cause exists, an officer may draw inferences based on his own experience.”
Id. (quotations omitted).
The district court determined that Ranieri had probable cause to lower the
spare tire on Lyons’ vehicle and cut it open once he observed the cans of Fix-A-Flat
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Tire and confirmed his suspicions that the spare tire contained contraband by
performing the “echo test.” We agree.
The spare tire on Lyons’ vehicle was hanging lower than normal. While the
rim of the spare tire was salty and dirty, the tire was clean. The spare tire also
contained fingerprints and tool marks where the rim and tire meet. These facts
suggested the tire had been placed on the rim, and, based on the difference in
weather conditions between the day of the stop and the previous one, that the tire
had been placed on the rim that day. The spare tire was a different brand and larger
than the other four tires on the vehicle. The results of the “echo test” performed on
the spare tire were consistent with the presence of contraband hidden therein. There
were four cans of Fix-A-Flat Tire in the vehicle, which was unusual considering the
vehicle was a rental. The presence of the Fix-A-Flat Tire in the vehicle also led
Ranieri to the reasonable inference that Lyons was concerned about getting a flat
tire because the spare tire was inoperable. When Ranieri lowered the spare tire, the
vehicle rose up and when Ranieri pulled the tire from under the vehicle, it was
extraordinarily heavy. These factors, as well as Ranieri’s experience with drugs
being transported in spare tires, demonstrate there was a fair probability that the
spare tire contained contraband.
IV. CONCLUSION
Based on Lyons’ enforceable waiver of appellate rights, we DISMISS his
appeal challenging the denial of his motion to dismiss the indictment. We
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AFFIRM the district court’s denial of his motion to suppress.
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United States v. Lyons
Court: Court of Appeals for the Tenth Circuit
Date filed: 2007-12-18
Citations: 510 F.3d 1225
Copy CitationsCombined Opinion