United States v. Cervine

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 22 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 02-3169

JOHN J. CERVINE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. Ct. No. 00-CR-40024-21-SAC)

Submitted on the briefs: *

David S. Rauzi, Law Offices of David S. Rauzi, Kansas City, Missouri, appearing
for Appellant.

Eric F. Melgren, United States Attorney, Nancy Landis Caplinger, Assistant
United States Attorney, Office of the United States Attorney, Topeka, Kansas,
appearing for Appellee.

Before TACHA , Chief Circuit Judge, EBEL and BRISCOE , Circuit Judges.

*
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)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
TACHA , Chief Circuit Judge.

During a canine search of Appellant-Defendant John Cervine’s vehicle,

conducted after a stop for a traffic violation, Missouri Highway Patrol troopers

discovered marijuana and methamphetamine. Mr. Cervine pleaded guilty to one

count of conspiring to manufacture and distribute a controlled substance, in

violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and one count of possessing, with

the intent to distribute, approximately 53.2 grams of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In his plea agreement, Mr.

Cervine reserved the right to appeal the district court’s ruling on his motion to

suppress the evidence obtained from the traffic stop of his truck and from his

subsequent questioning. The district court denied the motion, finding that the

troopers’ conduct did not violate the Fourth Amendment. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. Background

Missouri state troopers arrested John Cervine on March 11, 2000, during

his return trip home to Kentucky from Baxter Springs, Kansas. Mr. Cervine

originally traveled to Baxter Springs to visit Timothy Cline, an Oklahoma resident

and owner of Biker’s Dream, a motorcycle sales and repair shop in Baxter

Springs. DEA agents had been investigating Timothy Cline as a possible

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methamphetamine distributor and pseudoephedrine supplier since late 1999.

Based on information derived from their investigation, including wiretaps of

telephone calls on March 7-11, 2001, DEA agents had reason to believe that Mr.

Cervine was involved with Mr. Cline in trafficking illegal drugs.

On March 11, 2000, Mr. Cervine telephoned Timothy Cline upon arriving

in the Baxter Springs area. After first meeting Mr. Cline at his Oklahoma home,

Mr. Cervine drove to Baxter Springs, arriving at Biker’s Dream at approximately

1:00 p.m. After about five hours, Mr. Cervine left the shop in his truck, with his

motorcycle in tow, apparently en route to Kentucky.

DEA agents followed Mr. Cervine from Baxter Springs into Missouri and

observed him on two occasions drive at a slow speed through two rest areas

without stopping, returning directly to the interstate. The DEA agents testified

that narcotics traffickers commonly adopt such behavior as a counter-surveillance

technique.

After observing this behavior, the DEA agents contacted the Missouri

Highway Patrol, informing them that Mr. Cervine was likely transporting illegal

drugs. The DEA agents also requested that the Highway Patrol stop the vehicle

for any observed traffic violations and seek permission from Mr. Cervine to

search the vehicle. After locating Mr. Cervine’s vehicle, Highway Patrol troopers

Scott Mease and Cort Stuart observed his truck veer over the line separating the

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left passing lane from the right driving lane for approximately two seconds before

returning fully to the right lane. The Highway Patrol officers stopped Mr.

Cervine for this violation. Mr. Cervine did not deny committing the violation,

claiming that deficient tongue weight in his towed trailer caused the vehicle to

swerve.

After approaching the truck and informing Mr. Cervine of the basis for the

stop, Highway Patrol Trooper Mease requested his driver’s licence. Upon

receiving this license, Trooper Mease asked Mr. Cervine to accompany him to his

patrol car. Mr. Cervine complied. After denying that he was transporting illegal

drugs in his vehicle, Mr. Cervine gave the troopers permission to search his truck.

Instead of searching the vehicle themselves, the troopers called in the

canine unit to perform the search. Although Mr. Cervine claims that the canine

unit did not arrive for approximately three hours, the troopers claim that it arrived

within thirty minutes.

A few minutes after arriving, the dog alerted the troopers to the truck’s

console, where they located marijuana and methamphetamine in vacuum-sealed

packages. Trooper Mease then arrested Mr. Cervine and read him his Miranda

rights. Once at Troop D headquarters, Mr. Cervine answered questions posed to

him by Missouri Highway Patrol officers.

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 II. Discussion

A. Standard of Review

In reviewing the denial of a motion to suppress evidence, we accept the

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

unless they are clearly erroneous. See United States v. Flores , 48 F.3d 467, 468

(10th Cir. 1995), cert. denied , 516 U.S. 839 (1995). We review the evidence in

the light most favorable to the finding of the district court and review de novo the

ultimate determination of reasonableness under the Fourth Amendment. See

United States v. Gregory , 79 F.3d 973, 977 (10th Cir. 1996).

B. Overview of Applicable Fourth Amendment Law

In reviewing the constitutionality of traffic stops under the Fourth

Amendment, we conduct a two-step inquiry. First, we must determine “whether

the officer's action was justified at its inception.” United States v.

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

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

justified the interference.” Id. “An officer conducting a routine traffic stop may

request a driver’s license and vehicle registration, run a computer check, and

issue a citation.” Id. After completion of these activities, an officer may detain a

driver for reasons unrelated to the initial traffic stop if (1) the officer has “an

objectively reasonable and articulable suspicion that illegal activity has occurred

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or is occurring[,]” or (2) “if the initial detention has become a consensual

encounter.” Id. (citations omitted).

C. Reasonableness of the Traffic Stop at Its Inception

“[A] detaining officer must have an objectively reasonable articulable

suspicion that a traffic violation has occurred or is occurring before stopping [an]

automobile.” United States v. Soto , 988 F.2d 1548, 1554 (10th Cir. 1993)

(citation omitted). Here, Trooper Mease testified that the truck driven by Mr.

Cervine crossed the line dividing the driving and passing lanes for approximately

two seconds. Trooper Mease claimed that he stopped Mr. Cervine for violating

Mo. Rev. Stat. § 304.015.6, which states:

All vehicles in motion upon a highway having two or more lanes of
traffic proceeding in the same direction shall be driven in the
right-hand lane except when overtaking and passing another vehicle
or when preparing to make a proper left turn or when otherwise
directed by traffic markings, signs or signals.

Mr. Cervine counters that the troopers did not have probable cause 2
because

“crossing over the lane divider for two seconds cannot objectively constitute a

2
Mr. Cervine uses the terms “probable cause” and “reasonable suspicion”
interchangeably throughout his brief. However, our case law makes clear that
“[w]hile either probable cause or reasonable suspicion is sufficient to justify a
traffic stop, only the lesser requirement of reasonable suspicion is necessary.”
United States v. Callarman, 273 F.3d 1284, 1287 (10th Cir. 2001). Thus, the
relevant inquiry is whether the troopers had reasonable suspicion to stop the car
driven by Mr. Cervine.

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violation” of Mo. Rev. Stat. § 304.015.6. 3
We disagree.

To support his argument, Mr. Cervine points to our holding in United States

v. Gregory , 79 F.3d 973 (10th Cir. 1996). In Gregory , the defendant, while

driving a U-Haul truck through a windstorm, swerved one time into an emergency

lane on a windy, mountain road. We held that the officer did not have reasonable

suspicion to support a traffic stop because this action did not violate Utah law.

Id. at 978. Mr. Cervine contends that the similarity of vehicles and driving

conditions here and in Gregory requires a comparable holding in this case.

Mr. Cervine misreads our decision in Gregory . For purposes of

establishing reasonable suspicion, we only consider vehicle and weather

conditions when the underlying state statute so directs. We considered these

conditions in Gregory because the underlying Utah statute contained an-as-nearly-

as-practical requirement. The relevant statute in Gregory , Utah Code Ann. §

41-6-61(1), requires that “[a] vehicle shall be operated as nearly as practical

entirely within a single lane . . . .” Id. (emphasis added). Given the difficult

3
Mr. Cervine also argues, without any evidentiary support, that Trooper
Mease believed that Mr. Cervine violated Mo. Rev. Stat. § 314.015.5(1) and that
this alleged violation supplied the actual basis for the traffic stop. Trooper Mease
testified, however, that Mr. Cervine’s apparent violation of Mo. Rev. Stat. §
304.015.6 formed the basis of his traffic stop. Mr. Cervine provided no contrary
evidence. The district court accepted the testimony of Trooper Mease. United
States v. Cervine, 169 F. Supp. 2d 1204, 1210-11 (D. Kan. 2001). We accept the
district court’s factual findings on this issue. Flores, 48 F.3d at 468.

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weather, vehicle, and road conditions, it was not “practical” for the driver in

Gregory to avoid the emergency lane at all times. See Gregory , 79 F.3d at 978;

State v. Bello , 871 P.2d 584, 587 (Utah. Ct. App. 1994) (holding that one instance

of weaving does not constitute a violation of Utah Code Ann. § 41-6-61(1)).

Thus, in Gregory , we recognized nothing more than the fact that because the

driver did not violate the Utah statute, no basis existed for the officer to form the

reasonable suspicion necessary for the traffic stop in question.

In contrast to the Utah statute, Mo. Rev. Stat. § 304.015.6 does not allow

drivers to comply with the right-lane requirement “as nearly as practicable.”

Instead, the Missouri statute sets forth only three conditions under which vehicles

may enter the left-hand lane: (1) “when overtaking and passing another vehicle”;

(2) “when preparing to make a proper left turn”; and (3) “when otherwise directed

by traffic markings, signs, or signals.” 4
Id. Unlike Utah Code Ann. § 41-6-61(1),

a driver violates Mo. Rev. Stat. § 304.015.6 if his vehicle enters the left-hand lane

for any reason other than the three justifications enumerated in the statute. The

Missouri statute does not include an exception for improper vehicle weight, driver

visibility, or wind. Thus, regardless of the wind, the darkness, or the weight of

his trailer, when Mr. Cervine’s truck entered the left lane, he violated Mo. Rev.

4
Mr Cervine does not contend that he crossed into the left-hand lane for
any of these three recognized conditions.

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Stat. § 304.015.6. 5

This violation provided the troopers with reasonable suspicion to stop Mr.

Cervine’s car. The fact that the troopers had other motivations for stopping Mr.

Cervine has no bearing upon this review. “Subjective intentions play no role in

ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States ,

517 U.S. 806, 813 (1996). “[A] traffic stop is valid under the Fourth Amendment

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 ). Thus, once the Trooper observed a traffic violation, such as

swerving across the lane dividing line in violation of Mo. Rev. Stat. § 304.015,

the subsequent traffic stop was valid. Accordingly, we find our decision in

Gregory inapposite here and hold reasonable the initial traffic stop of Mr.

5
The Missouri Court of Appeals in State v. Mendoza, 75 S.W.3d 842 (Mo.
Ct. App. 2002), found that a driver did not violate Mo. Rev. Stat. § 304.015.6
when his vehicle moved into the left lane while passing a parked patrol car, after
which it returned promptly to the right lane. Accordingly, in Mendoza, no
reasonable suspicion existed for stopping the vehicle. This holding, however,
rested on the fact that “§ 304.015.6 does not specifically proscribe” moving into
the left lane to pass a vehicle parked in the shoulder. Id. at 846. In fact, Mo.
Rev. Stat. § 304.015.6 explicitly permits drivers to enter the left lane to “pass[]
another vehicle” without distinguishing between moving and non-moving
vehicles. Id. Therefore, unlike the swerving of the vehicle in the present case,
the driver’s use of the left lane in Mendoza specifically fell within the realm of
action permitted under the statute.

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Cervine. 6

D. Reasonable Suspicion of Illegal Activity as the Basis for the Canine Search

“Generally, an investigative detention must ‘last no longer than is necessary

to effectuate the purpose of the stop.’” United States v. Patten , 183 F.3d 1190,

1193 (10th Cir. 1999) (quoting Florida v. Royer , 460 U.S. 491, 500 (1983)).

Under ordinary circumstances, this limits the officer to a request for the driver's

license and registration, a computer check on the car and driver, an inquiry about

the driver's travel plans, and the issuance of a citation. See, e.g., United States v.

Williams , 271 F.3d 1262, 1267 (10th Cir. 2001).

Generally, “[i]f the driver produces a valid license and proof of right to

operate the vehicle, the officer must allow him to continue on his way without

delay for further questioning.” Soto , 988 F.2d at 1554 (quoting United States v.

Pena , 920 F.2d 1509, 1514 (10th Cir. 1990)). The officer, however, may extend

this detention for reasons unrelated to the traffic stop under two circumstances:

(1) if the officer has “an objectively reasonable and articulable suspicion that

6
We do not hold that a suspect must commit a traffic violation before
officers may stop a vehicle to investigate drug trafficking. Because the
government did not argue that the troopers stopped Mr. Cervine based on the
objective, reasonable, and articulable suspicion of drug trafficking as
communicated to them by the DEA, absent any traffic violation, we had no
occasion to consider that argument. See United States v. Celio, 945 F.2d 180 (7th
Cir. 1991) (holding state troopers may stop suspected drug traffickers without
violating the Fourth Amendment based solely on request from DEA to stop a
suspected vehicle).

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illegal activity has occurred or is occurring”; or (2) “if the initial detention has

become a consensual encounter.” Gonzalez-Lerma , 14 F.3d at 1483 (citations

omitted).

The district court found that Mr. Cervine did not validly consent to the

search of his vehicle and the related detention because the troopers did not return

his driver’s license to him prior to obtaining consent. See Cervine , 169 F. Supp.

2d at 1212 (citing United States v. Gonzales-Lerma , 14 F.3d 1479, 1483 (10th

Cir. 1994)). The United States does not contest this determination on appeal.

Therefore, the troopers conducted a proper detention only if they had “a

particularized and objective basis for suspecting legal wrongdoing.” United

States v. Arvizu , 534 U.S. 266, 273 (2002) (internal quotations omitted). In

making this determination, we must examine the totality of the circumstances,

meaning that reasonable suspicion may exist even if “each of the[] factors alone is

susceptible of innocent explanation.” Id. at 277.

In the present case, it is uncontroverted that the initial traffic stop itself did

not provide reasonable suspicion for the further detention and search of Mr.

Cervine’s vehicle. In determining reasonable suspicion, however, we must also

“look to the knowledge of all the police involved in this criminal investigation,

since probable cause can rest upon the collective knowledge of the police, rather

than solely on that of the officer who actually makes the arrest.” United States v.

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Merritt , 695 F.2d 1263, 1268 (10th Cir. 1982), cert. denied , 461 U.S. 916 (1983)

(internal quotations omitted); see also United States v. Swingler , 758 F.2d 477

(10th Cir. 1985) (finding probable cause for automobile searches and the arrest of

their occupants based on knowledge possessed by FBI agents, not the arresting

state officers, that the defendants were transporting amphetamines). 7

Although Merritt and Swingler apply the collective knowledge doctrine to

only an investigative stop and an arrest, respectively, the reasoning of these cases,

as well as rulings from outside this circuit, support application of this doctrine to

justify a continued detention. See United States v. Celio , 945 F.2d 180 (7th Cir.

1991) (allowing a traffic stop, vehicle search, and protracted detention based on

the collective knowledge).

Following the guidance of Merritt and Swingler, the district court found

that the troopers had reasonable suspicion based both on the representations by

DEA Agent Robert Ryan that Mr. Cervine was likely transporting illegal narcotics

and on the facts supporting this assertion. See Cervine, 169 F. Supp. 2d at

7
Although we can find no opinion that applies the collective knowledge
doctrine to justify a search when the stop was based on an unrelated traffic
violation, we see no reason that the policies underlying the collective knowledge
doctrine would not support such a use. Cf. United States v. Shareef, 100 F.3d
1491, 1503-04 (10th Cir. 1996) (utilizing collective knowledge analysis, though
refusing to impute collective knowledge on the arresting officer for other reasons,
where a traffic violation formed the basis of the initial stop, but reasonable
suspicion of criminal activity formed the basis of the vehicle search and occupant
detention).

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1213-14. According to the district court, Agent Ryan reasonably reached this

conclusion based on his knowledge of the following facts at the time of the traffic

stop:

(1) Timothy Cline was a primary supplier of pseudoephedrine
to the primary methamphetamine manufacturer in the state of Kansas
and received methamphetamine and other drugs in return for
redistribution and use; (2) Cline was a member and former president
of the Quapaw, Oklahoma chapter of The Loners motorcycle club and
Cervine was the president of The Loners motorcycle club in
Kentucky; (3) outlaw motorcycle groups were known to be associated
with the drug business; (4) Cervine had been arrested in 1976 for
possession of a controlled substance, possession of a hand grenade
and possession of a firearm; (5) Cline and Cervine had recently been
seen talking with each other at the national officers’ meeting of The
Loners motorcycle club in Las Vegas, Nevada; (6) authorized
wiretaps of Cline’s residential telephone on March 7, 2000 and
March 11, 2000 revealed that Cline and Cervine were friends or close
associates, that Cline called Cervine "Chief," and Cervine called
Cline "Pony," that Cervine was planning to come to Kansas or
Oklahoma and to bring his motorcycle to Cline’s shop for repairs; (7)
Rudolph James Maio, another friend or associate of Cline’s, had been
stopped in Oklahoma on February 22, 2000, after leaving Cline’s
motorcycle shop; Troopers found approximately $34,000, some of
which was wrapped in a heat-sealed bag, in the saddlebags of the
motorcycle Maio was hauling, and immediately detected the odor of
marijuana upon opening that wrapper; (8) Cervine drove from
Kentucky to Kansas, stayed approximately five hours at Cline’s shop,
then returned to his vehicle and drove toward Kentucky; (9) Cervine
pulled off the interstate at least twice into a rest stop or exit and
drove around very slowly but did not stop. Id.

Mr. Cervine does not dispute these facts. 8 Given these facts and the

Mr. Cervine claims that he actually stopped at the rest stops. The district
8

court, however, accepted the contrary testimony of Agent Ryan. We accept the
(continued...)

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experience of DEA Agent Ryan, the troopers possessed reasonable, articulable

suspicion of criminal activity sufficient to justify detaining Mr. Cervine for 30-50

minutes.

That these facts could also reflect innocent conduct, as Mr. Cervine alleges,

is of no consequence. “A determination that reasonable suspicion exists . . . need

not rule out the possibility of innocent conduct.” Arvizu, 534 U.S. at 277. Thus,

reasonable suspicion exists even though the facts at hand could evidence a

legitimate transaction.

Finally, the length of Mr. Cervine’s detention did not violate the Fourth

Amendment. Based on the troopers’ testimonies and the dispatch log records, the

district court concluded that the traffic stop, detention, and canine search of Mr.

Cervine’s vehicle lasted approximately fifty minutes. Cervine, 169 F. Supp. 2d at

1214-15. We have upheld similar waiting periods as satisfying the Fourth

Amendment. See, e.g., United States v. Villa-Chaparro, 115 F.3d 797, 802-03

(10th Cir. 1997), cert. denied, 522 U.S. 926 (1997) (holding that the arresting

officer “acted reasonably in detaining Defendant for five minutes from the time

he stopped Defendant . . . and for an additional thirty-eight minutes while he

waited for the canine unit to arrive.”).

8
(...continued)
district court’s factual finding on this score. Flores, 48 F.3d at 468.

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III. Conclusion

Considering the totality of the circumstances, we AFFIRM the district

court’s denial of Cervine’s motion to suppress.

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