State v. Brumfield

42 P.3d 706, 136 Idaho 913, 2001 Ida. App. LEXIS 112

• Court: Idaho Court of Appeals
• Decided: December 18, 2001
• Docket: 26388
• Status: Published

Opinions

LANSING, Judge.

Michael Brumfield appeals the district court’s denial of his motion to suppress evidence found in the trunk of the car in which he was a passenger., Additionally, Brumfield argues that the district court abused its discretion by imposing an excessive sentence and denying his Idaho Criminal Rule 35 Motion for reduction of the sentence.

I.

BACKGROUND

On October 1, 1999, Lieutenant Mark Black of the Bannock County Sheriffs Department was “running radar” on Interstate 15 in his marked police vehicle. At approximately 2:00 p.m., Black observed a Nissan Altima without a front license plate pass by his position. Black pursued the ear to determine if it was from a state that required only one license plate. After catching up to the car, which had slowed to 55 miles per hour in a 75 mile per hour zone, Black observed from the rear license plate that the ear was from Arizona, a state which requires only one plate. Pulling alongside the car, Black observed that the driver of the vehicle was sitting up close to the steering wheel, while a passenger in the front seat was sitting low in the seat and puffing “excessively” on a cigar. Black called in a registration check on the vehicle. After Black had followed the car for several miles, dispatch informed Black that the car was not reported to be stolen but that the ear’s registration in Arizona had been suspended. On the basis of the registration suspension, Black initiated a stop of the vehicle at approximately 2:12 p.m.

When Black approached the automobile, he could smell a cigar odor. Black ordered the driver, Gilbert Houston, to exit the vehicle. Black questioned Houston about who owned the car, then patted him down for weapons, and asked if Houston was involved in “gang-banging.”¹ Black next explained the reason for the stop, asked for Houston’s driver’s license, and inquired about Houston’s destination. Houston said that the car belonged to the passenger’s brother. With respect to his destination, Houston first said he was headed to North Dakota, then abruptly changed his story to say that he was traveling to Montana to attend his uncle’s funeral. After this conversation, Black called dispatch to request a driver’s license and arrest warrant check on Houston and to summon backup.

Next, Black ordered the passenger, Michael Brumfield, out of the vehicle. Black patted Brumfield down, inquired about “gang banging,” and then explained the reason for the stop. Brumfield explained that the car’s registration had been suspended for failure to show proof of insurance. He said that his brother, Tony Brumfield, who owned the car, was supposed to have obtained reinstatement of the registration by presenting proof of insurance to the Arizona Department of Motor Vehicles. Brumfield showed Black a current proof of insurance card in Tony Brumfield’s name. Black then asked dispatch to verify with Arizona the reason for the suspension, but he received no additional information. When Black asked about Brumfield’s travel destination, Brumfield said that he and Houston were traveling to Montana to attend the funeral of Brumfield’s grandmother. Black requested a driver’s license and warrant check on Brumfield. At approximately 2:21 p.m., dispatch responded to the earlier request about Houston, reporting that his license was valid and that thex'e wex'e no outstanding wan-ants for his axTest.

While waiting for dispatch to x*eturn the information on Bx’umfield, Black asked Bx'umfield if there wex'e any drugs or weapons in the car. Brumfield x-eplied that there were none. Black then asked both Bx'um-field and Houston for pexanission to seax'ch the cax\ Both refused, but when Black asked if he could search just the luggage located in the back seat, both consented. As Black began searching the luggage he discovered in the back seat a bag of cooked pork chops. Next, Black asked Bx-umfield what was in the trunk, and Bx’umfield x'eplied that he “had no idea.”

At appx'oximately 2:26 p.m., Black told Bx'umfield and Houston that he suspected there were drugs in the car, and he called for a drug dog to a sniff theix’ vehicle. Sevex’al minutes later, dispatch notified Black that Brumfield’s drivex’’s license was suspended but thex’e wex-e no active waxa-ants for his arrest.

The di’ug canine handler, Deputy Young, came from a location thirty miles away and axrived at approximately 3:00 p.m. Young’s drug dog alerted on the ti'unk of the vehicle. At that point, Bx'umfield and Houston wex-e handcuffed for “officer safety and for investigative pui'poses.” Using the cax- keys, Black opened the tnxnk and found six large packages of max’ijuana. Brumfield and Houston were arrested. The next day, Bx'umfield admitted to Black that he had known about the marijuana in the trunk.

Brumfield was charged with trafficking in marijuana, Idaho Code § 37-2732B(a)(1)(C), and filed a motion to suppx-ess evidence resulting from the vehicle stop. The district court denied the motion. Thereafter, Brumfield entered a conditional guilty plea pursuant to I.C.R. 11(a)(2), reserving his x'ight to appeal the district court’s ox'der denying his suppression motion. Bx'umfield was sentenced to a unified pi'ison tei'm of fifteen year's with eight yeax-s determinate.

II.

ANALYSIS

A. Suppression Motion

Bx’umfield assex'ts that the mai’ijuana found in the vehicle’s trank should have been suppressed because it was the px-oduct of a detention that was unlawfully pi’olonged.

A traffic stop by an officer constitutes a seizure of the vehicle’s occupants and implicates the Fourth Amendment’s prohibition against unreasonable searches and seizures. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660, 667 (1979); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.App.1996). An investigative stop must be justified by a reasonable suspicion, derived from specific articulable facts, that the detained person has committed or is about to commit a crime. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 237 (1983); State v. Fry, 122 Idaho 100, 103, 831 P.2d 942, 945 (Ct.App.1991).

Brumfield acknowledges that the initial vehicle stop was justified by probable cause to believe there was a violation of Idaho’s vehicle registration statute, I.C. § 49-456(1), but he contends that the stop was transformed into an illegal detention for a drug investigation. Brumfield argues that there was no justification for Lieutenant Black’s lengthening the detention beyond the period necessary for issuance of a citation for the registration violation. Consequently, he contends, the search of the trunk occurred during an unlawful detention and the marijuana must be suppressed. Because Brumfield does not challenge the district court’s factual findings, but contests only the court’s legal conclusions, the issue presented is one of law, which we independently review. State v. Morris, 131 Idaho 562, 565, 961 P.2d 653, 656 (Ct.App.1998); State v. McIntee, 124 Idaho 803, 804, 864 P.2d 641, 642 (Ct.App.1993); State v. Heinen, 114 Idaho 656, 658, 759 P.2d 947, 949 (Ct.App.1988).

We disagree with Brumfield’s position, for while Lieutenant Black was still investigating the vehicle registration matter, he gained information giving rise to reasonable suspicion of unrelated criminal activity. Although an investigative detention must ordinarily last no longer than is necessary to effectuate the purpose of the stop, Royer, 460 U.S. at 500, 103 S.Ct. at 1325, 75 L.Ed.2d at 238, a detention initiated for one investigative purpose may disclose suspicious circumstances that justify expanding the investigation to other possible crimes. Thus, in State v. Pabillore, 133 Idaho 650, 654, 991 P.2d 375, 379 (Ct.App.1999), we held that a vehicle stop initiated for investigation of a ear theft was legitimately expanded to encompass possible drug-related offenses because, in patting down one of the vehicle occupants, officers found drug paraphernalia. See also State v. Parkinson, 135 Idaho 357, 362, 17 P.3d 301, 306 (Ct.App.2000) (“[A]ny routine traffic stop might turn up suspicious circumstances, which could justify an officer asking questions unrelated to the stop.”); State v. Myers, 118 Idaho 608, 613, 798 P.2d 453, 458 (Ct.App.1990) (same).

In the present case, even before Lieutenant Black effectuated the stop, he had observed circumstances that contributed toward development of reasonable suspicion of drug activity, for he saw Brumfield slouched low in the front seat puffing “excessively” on a cigar while the driver was hunched forward toward the steering wheel in what may have been an effort to conceal Brumfield’s activity from the officer’s view. The officer knew from training and experience that cigar smoke was sometimes used to mask the odor of drugs. Then, while investigating the vehicle registration matter, Black observed a more suspicious circumstance: the inability of Brumfield and Houston to agree on the purpose of their trip. Houston initially told Black that he was driving to North Dakota, but then changed the destination to say he was going to Montana to attend the funeral of Houston’s uncle. Brumfield, on the other hand, claimed to be going to Montana for the funeral of Brumfield’s grandmother. It is difficult to envision an explanation, other than an effort at officer deception, for such divergent responses from co-travelers. Subsequently, while performing a consensual search of luggage and waiting for dispatch to respond to a driver’s license and warrant inquiry on Brumfield, Black discovered a bag of cooked pork chops in the vehicle’s back seat. This discovery also aroused Black’s suspicion because he knew that persons transporting drugs sometimes use food to attempt to distract drug dogs. It was only after this discovery, and after also hearing Brumfield’s claim that he “had no idea” what was in the trunk of a vehicle he had reportedly been traveling in for three days, that Black called for a drug dog.

All of these events occurred before Black received a report from dispatch on the status of Brumfield’s driver’s license and warrants. Therefore, at the point when Black called for a drug dog, the detention had not been temporally prolonged beyond the period reasonably necessary to investigate Houston’s and Brumfield’s use of an unregistered vehicle that neither of them owned.

In our view, continuation of the detention beyond that point was justified by reasonable suspicion that the vehicle contained drugs. Factors then known to Lieutenant Black which contributed to this reasonable suspicion included the following: (1) while the officer was driving alongside the car, Brumfield was sitting low in the passenger seat puffing excessively on a cigar while the driver assumed a position that could have been intended to block the officer’s view of the passenger; (2) after the stop, Black noticed a very strong cigar odor coming from the car; (3) Houston and Brumfield gave inconsistent stories about the purpose of them trip, and Houston also amended his story about the state of destination; (4) Black discovered a bag of cooked pork chops in the back seat which might have been intended to distract a drug dog; and (5) Brumfield claimed not to know what was in the trunk, despite having traveled in the car for three days. Courts in other jurisdictions have held that strong odors in vehicles will contribute to reasonable suspicion of the presence of drugs. See State v. Briggs, 140 N.C.App. 484, 536 S.E.2d 858, 863 (2000) (burnt cigar odor); United States v. Hernandez-Rodriguez, 57 F.3d 895, 898 (10th Cir. 1995) (strong smell of perfume). Inconsistency in vehicle occupants’ stories has also been held to support reasonable suspicion of criminal activity. See, e.g., United States v. Hardy, 855 F.2d 753, 758 (11th Cir.1988) (after them vehicle was stopped for speeding, driver’s and passenger’s inconsistent stories supported a finding of reasonable suspicion). Although many of the circumstances that aroused Lieutenant Black’s suspicion are susceptible to innocent explanation, “a series of acts that appear innocent, when viewed separately, may warrant further investigation when viewed together.” United States v. Weaver, 966 F.2d 391, 394 (8th Cir.1992). See also United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 1586-1587, 104 L.Ed.2d 1, 11-12 (1989); Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968).

Both Black and the officer who responded with the dog pursued them investigation diligently and with reasonable speed. It was only sixteen minutes into the stop when Black called for a drug canine unit. The responding deputy and dog arrived as quickly as possible, coming a thirty-mile distance in just over thirty minutes. Brumfield was detained for, at most, forty-nine minutes before the drug dog arrived. Detentions of fifty minutes or more while awaiting drug dogs have been upheld as reasonable in other jurisdictions. See United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir.1994) (en banc) (one hour); United States v. Frost, 999 F.2d 737, 741-42 (3rd Cir.1993) (almost one hour); Hardy, 855 F.2d at 761 (fifty minutes).

Accordingly, we hold that the roadside detention of Brumfield was lawful. Although the vehicular stop began as one to investigate the operation of an unregistered automobile, information quickly developed which justified expansion of the detention to investigate a possible drug offense. Once the drug dog alerted on the vehicle, the officers possessed probable cause to conduct a warrantless search of the truck. See State v. Gallegos, 120 Idaho 894, 898, 821 P.2d 949, 953 (1991 ).² Therefore, Brumfield’s motion to suppress evidence found in the trunk was properly denied.

B. Sentence

Next, Brumfield argues that the district court abused its discretion by imposing an excessive sentence. When a sentence is challenged on appeal, we examine the record, focusing upon the nature of the offense and the character of the offender, to determine if there has been an abuse of the sen-

2. The use of the drug dog to sniff the exterior of the vehicle was not a search implicating Fourth Amendment rights. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). tencing court’s discretion. State v. Young, 119 Idaho 510, 808 P.2d 429 (Ct.App.1991). The defendant bears the burden to show that the sentence is unreasonably harsh in light of the primary objective of protecting society and the related goals of deterrence, rehabilitation and retribution. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). For purposes of appellate review, we consider the minimum period of confinement to be the probable duration of incarceration. State v. Sanchez, 115 Idaho 776, 777, 769 P.2d 1148, 1149 (Ct.App.1989). An abuse of discretion will be found only if, in light of the governing criteria, the sentence is excessive under any reasonable view of the facts. State v. Charboneau, 124 Idaho 497, 500, 861 P.2d 67, 70 (1993). Where reasonable minds might differ as to the length of the sentence, we will not substitute our view for that of the district court. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992); State v. Admyers, 122 Idaho 107, 108, 831 P.2d 949, 950 (Ct.App.1992).

Brumfield argues that his sentence is excessive in light of his remorse for the crime and his health problems. However, our independent review of the record confirms that the sentence imposed by the district court was not an abuse of discretion. Brumfield’s conviction was for trafficking in more than 178 pounds of marijuana. Although he had admitted to police shortly after his arrest that he had been aware of the marijuana in the trunk, by the time of the presentence investigation and sentencing hearing, Brumfield asserted he knew nothing of the marijuana, and he took no responsibility for the offense. Brumfield had three prior felony convictions, including possession of marijuana with intent to distribute, carrying a concealed weapon, and possession of a prohibited weapon. Brumfield also had six misdemeanor convictions for such crimes as possession of drug paraphernalia, domestic violence, and weapons violations. Brumfield had not been employed since he was paroled from prison in 1996. Considering the seriousness of Brumfield’s crime, his criminal history, and his unwillingness to accept responsibility for his actions, we cannot say that the district court abused its discretion in fashioning Brumfield’s sentence.

Brumfield also argues that the district court abused its discretion by denying his motion for a reduction of the sentence. A motion to reduce an otherwise lawful sentence is essentially a plea for leniency, and a decision on such a motion is committed to the sound discretion of the sentencing court. State v. Wersland, 125 Idaho 499, 504, 873 P.2d 144, 149 (1994); State v. Lavy, 121 Idaho 842, 845, 828 P.2d 871, 874 (1992); State v. Hernandez, 121 Idaho 114, 117, 822 P.2d 1011, 1014 (Ct.App. 1991). If the original sentence was not excessive when imposed, the appellant must demonstrate that it is excessive in light of new or additional information presented with the motion to reduce. Id.; State v. Springer, 122 Idaho 544, 545, 835 P.2d 1355, 1356 (Ct.App.1992). Brumfield presented no new information with his Rule 35 motion and only asked that his sentence be reduced to be consistent with that imposed on his co-defendant. The district court denied the motion, noting that Brumfield’s extensive criminal history was justification for a longer sentence. We perceive no abuse of discretion in this decision.

III.

CONCLUSION

The initial stop of the vehicle in which Brumfield was a passenger due to suspended vehicle registration was justifiably expanded by Lieutenant Black into a drug investigation, and the detention was not unduly or unnecessarily prolonged. Therefore, the district court correctly denied Brumfield’s motion for suppression of evidence developed during the stop. Brumfield has shown no abuse of discretion in the sentence imposed or in the denial of his motion for reduction of the sentence. Accordingly, the judgment of conviction and sentence, and the order denying Brumfield’s Rule 35 motion, are affirmed.

Judge Pro Tern MEEHL concurs.

1 . "Gang banging” is a slang term used to describe illegal street gang activity such as drug trafficking and the accompanying violence.

2 . Conveniently absent from Black’s matrix of suspicion was the fact that Houston and Brumfield were young, African American men, wearing clothes and hairstyles slereotypically associated with gang activity, driving an out-of-state car. Black testified, however, that officers of the CIU were strangers to the notion of "racial profiling”:

Q: Has [the CIU] established any drug courier profiles?

Black: I’m not certain what you mean by profiles. Could you explain that to me?

Q: Okay. One thing that is popular in agencies around the country is the, at airports and various places is to establish profiles of individuals they believe that may be involved in trafficking drugs. Do you have any written guidelines through the CIU or Bannock County's Sheriff's Office with regard to that?

A: I still don't understand the question.

Q: Do you have any guidelines on the types of people, the way they dress or whatever that would lead you to perhaps suspect that there may be criminal involvement with drugs with those people?

A: No, we do not.

See and compare State v. Zavala, 134 Idaho 532, 537-40, 5 P.3d 993, 998-1001 (Schwartzman, J. dissenting.)