United States v. Ramstad

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 24 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 00-3407

HOWARD LEE RAMSTAD,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 98-CR-40085-01-DES)

Joseph D. Johnson, Law Office of Joseph D. Johnson, Chtd., Topeka, Kansas, for
Defendant-Appellant.

Robin D. Fowler, Assistant United States Attorney (Gregory G. Hough, Assistant
United States Attorney, and Jackie N. Williams, United States Attorney, Topeka,
Kansas, on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Before EBEL, BALDOCK, and KELLY, Circuit Judges.

EBEL, Circuit Judge.
 On March 2, 1999, Defendant-Appellant Howard Lee Ramstad

conditionally pled guilty to knowingly and intentionally possessing with the intent

to distribute 100 kilograms or more of a substance or mixture containing a

detectable amount of marijuana, in violation of 21 U.S.C. § 841(a)(1). As part of

his conditional guilty plea, which was entered pursuant to Rule 11(a)(2) of the

Federal Rules of Criminal Procedure, Mr. Ramstad reserved the right to appeal

the district court’s denial of a pretrial motion to suppress the marijuana, which

Mr. Ramstad argued was obtained in violation of his Fourth Amendment rights.

The district court subsequently sentenced Mr. Ramstad to fifty-one months in

prison, four years of post-release supervision, and a $100.00 assessment, and Mr.

Ramstad appealed the district court’s denial of his suppression motion. Finding

that “the district court did not make any findings or otherwise explain the basis

for its decision [denying Mr. Ramstad’s motion to suppress the marijuana],” we

remanded Mr. Ramstad’s appeal to the district court “for further fact-finding.”

United States v. Ramstad, 219 F.3d 1263, 1265 (10th Cir. 2000). On remand, the

district court again denied Mr. Ramstad’s suppression motion, and this appeal

followed. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we now

affirm.

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 I. BACKGROUND

The events surrounding Mr. Ramstad’s arrest and guilty plea were

discussed in detail in our prior decision, see Ramstad, 219 F.3d at 1264-65, as

well as in the district court’s opinion on remand. See United States v. Ramstad,

120 F. Supp. 2d 973, 975-77 (D. Kan. 2000). Accordingly, we limit our

discussion here to those facts most relevant to the present appeal.

On Sunday, July 19, 1998, Trooper Brian K. Smith of the Kansas Highway

Patrol (KHP) observed Mr. Ramstad’s motor home traveling on Interstate 70, near

Topeka, Kansas. Trooper Smith noticed a California license plate on the rear of

the vehicle, but he did not observe a front license plate. Although Kansas law

generally only requires vehicles to display a rear license plate, see Kan. Stat. Ann.

§ 8-133, Trooper Smith believed that, under California law, California vehicles

must display both a front and a rear license plate. Trooper Smith further believed

that an interstate compact between California and Kansas authorized Kansas

patrol officers to stop out-of-state vehicles that were not in compliance with their

home state’s motor vehicle laws, even if the out-of-state vehicle was not violating

any Kansas laws governing Kansas vehicles. Consequently, Trooper Smith began

following Mr. Ramstad’s vehicle and “ran the registration plate [he had seen]

through the Topeka dispatch,” which informed him that the plate belonged to a

1964 GMC vehicle. Unable to determine the vehicle’s make and model, Trooper

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Smith activated his emergency lights and pulled over Mr. Ramstad’s motor home.

At the time he initiated the stop, Trooper Smith intended (1) to warn the driver

that California vehicles must display a front license plate and (2) to ascertain

whether, in fact, the vehicle was a 1964 GMC.

After the vehicle pulled over, Trooper Smith approached Mr. Ramstad, who

produced a valid California driver’s license, as well as the vehicle’s proof of

insurance. See Ramstad, 219 F.3d at 1264; Ramstad, 120 F. Supp. 2d at 975. Mr.

Ramstad appeared “extremely nervous” to Trooper Smith. Ramstad, 219 F.3d at

1264. He noticed that Mr. Ramstad’s hands shook as he presented his driver’s

license, observed that “the veins in his neck were distended,” and, given his

distended veins, thought that his heart rate “was very rapid.” Mr. Ramstad also

paced back and forth as he spoke with Trooper Smith.

Trooper Smith later asked Mr. Ramstad about his travel plans, and Mr.

Ramstad indicated that he was driving from San Diego, California, to Indianapolis,

Indiana. He also explained that during the journey, he had stopped in Durango,

Colorado. At some point, Mr. Ramstad and Trooper Smith left the roadside and

went to Trooper Smith’s patrol car, where Mr. Ramstad’s nervous behavior

continued. While in the patrol car, Mr. Ramstad indicated that he was traveling to

Indianapolis because his girlfriend, Ryn Reavis, who was a passenger in the motor

home, was going “to be on a Talk Show of some sorts.” He also informed Trooper

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Smith that he had purchased the motor home recently, but that he was currently

unemployed.

Trooper Smith then left Mr. Ramstad in the patrol car and returned to the

motor home to verify its vehicle identification number (VIN). While in the

vehicle, Trooper Smith encountered Ms. Reavis, who told him that she and Mr.

Ramstad were traveling to Indianapolis “to see a friend who had a skin condition.”

Ramstad, 120 F.Supp. 2d at 976. During his conversation with Ms. Reavis,

Trooper Smith noticed that the wallpaper in the bedroom area of the motor home

differed from the other living areas of the vehicle, which, based on his experience,

Trooper Smith found unusual.

Trooper Smith subsequently returned to his patrol car and explained to Mr.

Ramstad that he would receive a warning citation for not displaying a front

California license plate. Trooper Smith then returned Mr. Ramstad’s proof of

insurance and driver’s license, gave him the citation, and told him “[T]hat’s all I

got. Have a safe trip okay.” Ramstad, 120 F. Supp. 2d at 976. During the next

eight seconds, Mr. Ramstad asked Trooper Smith if the Kansas Highway Patrol

monitored “CB” traffic, explaining that a driver up the road had radioed for

assistance. Ramstad, 120 F. Supp. 2d at 976. Literally one second after Mr.

Ramstad finished his statement, and before Mr. Ramstad exited the patrol car,

Trooper Smith asked Mr. Ramstad, “Can I ask you a couple of questions real

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quick? We’re all done with everything.” Mr. Ramstad quickly consented to the

additional questioning, and Trooper Smith asked, “You guys aren’t hauling

anything illegal with you are you: no guns, drugs, weapons, contraband, large sums

of money?” Mr. Ramstad denied hauling anything illegal. Trooper Smith

immediately responded by asking for permission to take “a quick look around” the

motor home. Mr. Ramstad consented to the search, provided that Trooper Smith

would not “tear anything up.” Trooper Smith agreed that he would not tear

anything up.

Once inside the motor home, Trooper Smith noticed discrepancies in the

wall near the bedroom area, including a recessed area, recent scrapes and scratches

on the wall, and fresh caulking, screws, and trim. He also noted “that the speaker

grill covers [in the wall] did not cover speakers, but just covered a small hole with

a wire.” Ramstad, 219 F.3d at 1264. In the course of this search, Trooper Smith

unscrewed and removed the speaker covers. Ramstad, 120 F. Supp. 2d at 976.

Trooper Smith then exited the motor home and walked to the rear of the

vehicle, where he observed a depth discrepancy of approximately twenty-eight

inches between the interior and exterior walls of the motor home. Based on his

prior experience, Trooper Smith suspected that the motor home contained a false

wall. At that point, Trooper Smith radioed his Topeka dispatcher and requested

that a K-9 narcotics dog be sent to inspect the vehicle. The drug sniffing dog

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arrived ten to fifteen minutes later. Inside the vehicle, the dog alerted at the rear

wall, near the same area where Trooper Smith had noticed “fresh scratches and

marks.” Ramstad, 219 F.3d at 1264.

After the dog alerted, Trooper Smith asked Mr. Ramstad to drive the motor

home to a nearby KHP facility, where Trooper Smith removed a mirror and

plywood panel from the rear of the motor home. Behind the panel, Trooper Smith

discovered thirty-eight plastic-wrapped bundles containing 567.3 pounds of

marijuana.

Prior to trial, Mr. Ramstad filed a motion to suppress the marijuana. Among

other things, Mr. Ramstad argued that the stop preceding the discovery of the

marijuana was illegal because the failure to display a front license plate in

accordance with California law did not violate Kansas law. Second, assuming the

stop’s illegality, Mr. Ramstad contended that his consent to Trooper Smith’s

search did not purge the illegality of the stop. Third, even if the stop was legal, or

his subsequent consent to the search purged any illegality, Mr. Ramstad asserted

that Trooper Smith exceeded the scope of his consent by unscrewing and removing

the speaker covers. Ramstad, 219 F.3d at 1265.

In response, the government argued several provisions of Kansas law

justified the stop. First, the government cited two interstate compacts joined by

Kansas, the “Driver License Compact,” Kan. Stat. Ann. § 8-1212, and the

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“Nonresident Violator Compact,” Id. § 8-1219, which, argued the government,

“provide that Kansas shall give full faith and credit to the traffic laws of its sister

states and the District of Columbia, and report traffic offenses to sister

jurisdictions.” Aplt. App., Vol. I at 29. Second, the government invoked § 8-142

of the Kansas Statutes Annotated, which makes it illegal to operate a vehicle that

“does not have attached thereto and displayed thereon the license plate or plates

assigned thereto by [the Kansas] [D]ivision [of Vehicles of the Department of

Revenue] for the current registration year.” Kan. Stat. Ann. § 8-142.

After holding a suppression hearing, the district court denied Mr. Ramstad’s

motion. The district court made no findings of fact, and simply held:

As to the motion for an order suppressing illegally obtained evidence,
the motion is denied and overruled. We’re basing our decision
primarily on Tenth Circuit law, which we believe is inconsistent with
the position of the defendant. They want to change that law, we’ll let
them do it. I’m not going to try it for them. So that’s the ruling of
the court.

Ramstad, 219 F.3d at 1265. On appeal, a divided panel of this court remanded the

case, finding “the record below . . . insufficiently developed regarding the

suppression issue” and ordering the district court to “make specific findings as to

whether the original traffic stop violated the Fourth Amendment, and if so whether

Defendant subsequently gave consent sufficient to remove the taint of the illegal

stop.” Ramstad, 219 F.3d at 1265.

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 On remand, the government abandoned the statutory authority previously

used to justify the stop. The government conceded that § 8-142 did not provide a

legal basis for the stop. Nor did the government invoke the interstate compacts as

providing justification for the stop. Instead, it asserted for the first time that a

separate provision of the Kan. Stat. Ann., § 8-138a, authorized the stop. In

addition, the government also suggested for the first time that the stop was

permissible because Mr. Ramstad’s rear license plate “was partially obscured.”

In its ruling on remand, the district court agreed that neither of the interstate

compacts originally cited by the government authorized the stop. 120 F. Supp. 2d

at 977. Disagreeing with the government, however, the district court concluded

that § 8-142 – the provision requiring Kansans to display every license plate issued

them by the Kansas Division of Vehicles – justified the stop. Id. at 978. In

reaching this conclusion, the district court expressly relied upon § 8-138a, a

provision that grants “nonresident [motor vehicle] owners, when duly licensed in

the state of residence,” Kan. Stat. Ann. § 8-138a, the privilege of operating their

vehicles on Kansas’s roads. The district court interpreted § 8-138a as applying to

duly licensed vehicles, and, after reading the statute in conjunction with § 8-142,

concluded that by “duly licensed,” the statute meant vehicles displaying “both

license plates assigned to the vehicle.” Id. at 978. The district court also

concluded that Mr. Ramstad voluntarily consented to the search of his vehicle and

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that Trooper Smith’s subsequent search did not exceed the scope of that consent.

Id. at 979, 981-82. The court concluded, however, that if the stop was illegal, Mr.

Ramstad’s consent to the search was insufficient to remove the taint of illegality.

Id. at 981.

Soon after the district court’s ruling, Mr. Ramstad filed a motion for

reconsideration with the district court, arguing, among other things, that § 8-

138a’s “duly licensed” language only refers to duly licensed owners, not duly

licensed vehicles. The district court denied Mr. Ramstad’s motion, and this appeal

followed.

II. CONTROLLING LAW

As the Supreme Court explained in Whren v. United States, 517 U.S. 806

(1996), “The Fourth Amendment guarantees ‘[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures.’ Temporary detention of individuals during the stop of an automobile by

the police, even if only for a brief period and for a limited purpose, constitutes a

‘seizure’ of ‘persons’ within the meaning of this provision.” Id. at 809-10. Under

Tenth Circuit precedent, routine traffic stops are considered akin to the

investigatory stops sanctioned by the Supreme Court in Terry v. Ohio, 392 U.S. 1

(1968). United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998); United

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States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996). Consequently, a traffic

stop “is reasonable under the Fourth Amendment at its inception if the officer has

either (1) probable cause to believe a traffic violation has occurred or (2) a

reasonable articulable suspicion that ‘this particular motorist violated any one of

the multitude of applicable traffic and equipment regulations of the jurisdiction.’” 1

United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999) (internal citations

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

1995) (en banc)).

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

findings of the district court unless they are clearly erroneous and view the

evidence in the light most favorable to the district court’s determination. On

appeal, we consider the totality of the circumstances and treat the ultimate

determination of reasonableness under the Fourth Amendment as a question of law

1
In Whren, the Supreme Court explained that “[a]s a general matter, the
decision to stop an automobile is reasonable where the police have probable cause
to believe that a traffic violation has occurred.” 517 U.S. at 810. We recently
rejected the notion that Whren implicitly overruled our prior precedent holding
that reasonable suspicion, as opposed to the higher standard of probable cause, is
required to justify a traffic stop. See United States v. Callarman, 273 F.3d 1284,
1286-87 (10th Cir. 2001). We explained that while Whren and other Supreme
Court decisions “indicate that probable cause is a sufficient ground for a stop,
none of them indicates that it is necessary for a stop.” Id. at 1286; see also
United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000) (collecting
cases and reaching the same conclusion).

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which we review de novo.” United States v. Williams, 271 F.3d 1262, 1266 (10th

Cir. 2001) (citations omitted).

III. LEGALITY OF THE STOP

The primary question before us is whether Kansas law empowered Trooper

Smith to stop Mr. Ramstad for driving his vehicle in Kansas without two

California license plates. On this appeal, the United States argues § 8-138a

authorized the traffic stop. 2 The section, in its entirety, states:

The provisions of this section shall apply only to the nonresident
owner or owners of any motor vehicle constructed and operated
primarily for the transportation of the driver or the driver and one or
more nonpaying passengers. Such nonresident owners, when duly
licensed in the state of residence, are hereby granted the privilege of
operation of any such vehicle within this state to the extent that
reciprocal privileges are granted to the residents of this state by the
state of residence of such nonresident owner.

Kan. Stat. Ann. § 8-138a (emphasis added). 3

2
The government’s brief relies almost exclusively on § 8-138a, although it
also argues that § 8-142 makes illegal the operation of a car in Kansas that does
not have a privilege to use the highways under § 8-138a.
3
Mr. Ramstad argues that even if Kansas law permitted the stop, “[Trooper]
Smith’s mistake of law as to the source of his authority to conduct a traffic stop
undermines the legality of the stop.” Aplt. Br. at 23. In recent years, however,
the Supreme Court has emphasized that a traffic stop will be upheld if,
objectively speaking, the officer possessed probable cause or reasonable suspicion
to carry out the stop. See Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001) (per
curiam); Ohio v. Robinette, 519 U.S. 33, 38 (1996); Whren v. United States, 517
U.S. 806, 812-13 (1996). Courts interpreting and applying Whren repeatedly have
ruled that an arrest or stop will be constitutional if an objectively valid basis for
carrying out the seizure exists, even if the ground cited by the officer for
(continued...)

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 Section 8-138a apparently grants to nonresident owners the privilege of

operating in Kansas a vehicle only if “such vehicle” is “duly licensed” in the state

of the owner’s residence. From this, the negative implication is that such a vehicle

not duly licensed in the state of the owner’s residence is not permitted to be

operated in Kansas and any such operation is therefore illegal.

Mr. Ramstad argues that § 8-138a refers only to driver’s licenses, rather

than to vehicle licenses. Several factors, however, lead us to conclude that the

Kansas Supreme Court would construe § 8-138a as applying to vehicles’ licenses.

First, every decision by a Kansas court that has considered § 8-138a has assumed

or held that the section requires that out-of-state vehicles be properly licensed in

their home state. See State v. Wakole, 959 P.2d 882, 883 (Kan. 1998); State v.

Wakole, 945 P.2d 421, 422 (Kan. Ct. App. 1997); State v. Hayes, 660 P.2d 1387,

1389 (Kan. Ct. App. 1982). Although Mr. Ramstad would dismiss these references

as dicta, at least the reference in Wakole does not appear to be dicta. Had § 8-

138a only applied to personal driver’s licenses, as opposed to licensed vehicles,

Wakole would not have been able to assert her “reciprocity” defense, and the

Kansas courts would have been compelled to affirm, rather than to reverse, her

conviction. In any event, even dicta can be persuasive evidence of how a state

3
(...continued)
justifying the stop is unconstitutional. See, e.g., United States v. Bookhardt, 277
F.3d 558, 565 (D.C. Cir. 2002)..

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court might rule on an issue of state law. Carl v. City of Overland Park, 65 F.3d

866, 872 (10th Cir. 1995).

Second, §8-138a is surrounded completely by other statutory provisions that

govern a vehicle’s registration, license plates, and tags. See Kan. Stat. Ann. §§ 8-

126a (discussing different terms for license plates), 8-127 (imposing vehicle

registration requirements), 8-128 (exempting certain vehicles from registration), 8-

129 (outlining application procedure for vehicle registration), 8-131 (discussing

issuance of vehicle registration), 8-132 (requiring the state to issue license plates

to owners of all registered vehicles), 8-133 (establishing license plate display

requirements), 8-135 (outlining procedure for transferring vehicles), 8-136

(governing dealer license plates), 8-139 (establishing procedures for lost or stolen

license plates, registrations, and titles). Indeed, nearly all of the article of the

Kansas Statutes Annotated where § 8-138a is located deals with vehicle

registration and vehicle license plates and tags. See id. §§ 8-101 through 8-1,151.

By contrast, the provisions pertaining to driver’s licenses and the right of

individuals to drive within Kansas fall entirely in a distinct and separate article of

the chapter. See id. §§ 8-201 through 8-2,148. Just as importantly, the provision

governing driver’s licenses explicitly exempts nonresident drivers who possess a

valid license from their home state from Kansas’s driver’s license requirements.

Id. § 8-236. Thus, were a court to read § 8-138a as only applying to licensed

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individuals, it would render redundant and superfluous the provision governing

driver’s licenses for nonresidents.

Third, the phrase, “when duly licensed in the state of residence” appears to

at least include the proper license of the vehicle because, absent that link, the

operator of any such vehicle would not be “duly licensed.” This reading is

enhanced by the adjective “such” that precedes the word “vehicle.” Immediately

following a requirement of being “duly licensed,” to refer to “such vehicle” must

mean that the vehicle, among other things, must be duly licensed.

Here, California law appears to require both a front and rear license plate

for Mr. Ramstad’s vehicle. California Vehicle Code § 5200 states that “[w]hen

two license plates are issued . . . for a vehicle, they shall be attached to the vehicle

for which they were issued, one in the front and the other in the rear.” Cases from

California suggest that vehicles, including motor homes, must display front license

plates, see, e.g., People v. Gonzalez, 75 Cal. Rptr. 2d 272, 274 (Cal. Ct. App.

1998); People v. Dewey, 49 Cal. Rptr. 2d 537, 538 (Cal. Ct. App. 1996); People v.

Lee, 67 Cal. Rptr. 709, 711 (Cal. Ct. App. 1968), and it is undisputed that Mr.

Ramstad received a front license plate for his vehicle.

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 Thus, we conclude that the traffic stop for failure by Mr. Ramstad to display

a front California plate was objectively reasonable and the stop was therefore

legal. 4

IV. CONSENT TO SEARCH

We agree with the district court’s conclusion that Mr. Ramstad’s consent to

search was knowingly and voluntarily given. Mr. Ramstad’s documents had been

returned to him and he had been advised by the officer, “that’s all I’ve got. Have

a safe trip, okay.” The officer then asked if he could take “a quick look around”

and Mr. Ramstad consented. Given the fact that we have found that the stop was

legal, the record establishes that the consent to search was legal as well.

We are troubled by the other legal justification for the stop offered by the
4

government’s brief – that some unidentified object or material partially obscured
the motor home’s rear license plate. The government offers absolutely no record
evidence to support this factual claim, and our careful review of the record has
unearthed no support. Indeed, the record contradicts the government’s claim. As
discussed above, Trooper Smith followed Mr. Ramstad’s motor home for a period
of time before stopping the vehicle. While following the car, Trooper Smith
testified that he was able to read the letters and numbers on the vehicle’s rear
license plate and relay them to his dispatcher to “[run] the registration plate.” We
find the government’s assertion of this argument negligent, careless, and
misinformed, at best.

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 V. SCOPE OF THE SEARCH

Finally, Mr. Ramstad argues that the search exceeded the scope of the

consent. We disagree. The scope of a search “is generally defined by its

expressed object and is limited by the breadth of the consent given.” United States

v. Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997) (internal quotations and citations

omitted). The expressed purpose of the search, to which Mr. Ramstad consented,

was to look for drugs or contraband. That certainly implies that the officer could

look wherever drugs might be hidden. United States v. Pena, 143 F.3d 1363,

1367-68 (10th Cir. 1998).

The only limitation that was placed on his consent was that the officer not

tear anything up. Other than passive surveillance, the only interactive activity that

altered the vehicle was when the officer removed the speaker grill covers. But, he

replaced them without damage, so that activity cannot be regarded as tearing up

the vehicle.

The defendant never objected to the duration of the search and never

demanded to be present in the vehicle during the search. Thus, his consent was

reasonably interpreted by the officer to proceed as he did. 5

5
We deny appellant’s motion to strike appellee’s supplemental authority.

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 VI. CONCLUSION

Because we find no merit to any of the issues raised by the defendant on this

appeal, we AFFIRM.

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