United States v. Abdur-Raheem Akram

165 F.3d 452, 1999 U.S. App. LEXIS 380, 1999 WL 9783

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 13, 1999
• Docket: 97-4429
• Status: Published

Opinions

MOORE, J., delivered the opinion of the court, in which NELSON, J., joined. GUY, J. (pp. 457-460), delivered a separate dissenting opinion.

OPINION

MOORE, Circuit Judge.

This ease concerns the constitutionality of a stop and search of the appellant’s U-Haul truck, in which police found contraband videotapes and audiotapes. The initial stop of the truck was justified by a police officer’s observation of a traffic violation, and the search of the truck was justified by information the police had obtained in an encounter with the appellant the day before. We therefore AFFIRM the district court’s order denying the appellant’s motion to suppress the evidence obtained from the search.

I. BACKGROUND

On February 26,1997, Abdur-Raheem Ak-ram was riding in a U-Haul driven by Charles Bassett, heading east on the Ohio Turnpike. Mark Gooding of the Ohio State Highway Patrol (“OSHP”) stopped the truck after determining that it was traveling at sixty-seven miles per hour.¹ The posted speed limit was sixty-five miles per hour for most vehicles but fifty-five miles per hour for trucks over eight-thousand pounds. See Ohio Rev.Code Ann. § 4511.21(D)(3) (Banks-Baldwin West 1994 & Supp.1998). Believing that the degree to which Bassett had violated the speed limit depended on the total weight of the truck and its contents, Gooding asked Bassett what they were carrying.² Bassett said there was nothing in the truck. When Gooding later asked Akram the same question, Akram said they were carrying pillows and comforters. Akram also told Gooding that they were traveling from Detroit to New York, which Gooding considered “source cities” for narcotics. Akram was unable to produce rental papers for the truck.

These facts aroused Gooding’s suspicion, and he enlisted the aid of Paul Newburn and Xaver, also of the OSHP. Xaver is a dog trained to detect drugs, and Newburn is his handler. Gooding told Akram to pull the truck up the highway to where Newburn and Xaver were working. On Xaver’s second walk around the truck, he alerted by scratching at the back of the vehicle, and the officers searched the truck. They found no drugs, but they did find ten to fifteen boxes containing videotapes. Gooding noticed several titles that he did not think had been released to the public. Akram told Gooding that the tapes were “bad” and that he was returning them to New York. Unsure how to proceed, the officers called an OSHP investigator, who promised to call back and advise them. Forty-five minutes later, when the investigator had not called back, Gooding decided to release Bassett and Akram with warnings about their speed, possession of the tapes, and failure to produce their rental agreement. Soon after the pair had left, the OSHP investigator called back and told the officers that they could have arrested Bassett and Akram. The officers and the investigator discussed how they should proceed if a similar situation arose in the future.

Early the next morning, February 27, Bas-sett and Akram were driving them U-Haul on the same highway, this time headed west. Newburn and Xaver had been driving ea t and were in the process of crossing over to the westbound side when Newburn saw the truck. According to his testimony, he did not recognize either the truck or its occupants from the day before, but he did observe that the truck “went from the passing lane to the driving lane, and as I made my turn, went over the white line,” all without signaling. Joint Appendix (“J.A.”) at 161, 173 (Newburn Test.). He pulled the truck over to the side of the highway.³ When he approached the truck he recognized Akram and Bassett, and he called Gooding, who was working just a few miles away, to the scene.

Akram and Bassett told Newburn they were headed-back home from New York. They still did not have rental papers, and this time they said they were carrying pillows and jewelry. Newburn led Xaver around the truck twice, -and he says that Xaver again alerted. The parties dispute whether Akram consented to the subsequent search, which revealed the truck to be filled with apparently counterfeit tapes. The officers told Ak-ram and Bassett to drive to an OSHP patrol post, where federal agents examined the tapes and determined that at least some of them were counterfeit.

Akram pleaded not guilty to charges under 18 U.S.C. § 2818, which prohibits trafficking in counterfeit videotapes, and moved to suppress the fruits of the February 27 search. The district court denied this motion, holding that a traffic violation and Xaver’s alert justified the February 27 stop and search. Ak-ram then changed his plea to guilty but reserved the right to appeal the adverse ruling. He was sentenced to twelve months plus one day of incarceration, to begin on January 5, 1998, followed by two years of supervised release. Akram then filed timely notice of this appeal.

II. ANALYSIS

This court reviews a district court’s denial of a motion to suppress de novo but adheres to the district court’s factual findings unless they are clearly erroneous. See United States v. Diaz, 25 F.3d 392, 394 (6th Cir.1994).

A. PROBABLE CAUSE FOR THE FEBRUARY 27 STOP

1. Failure to Signal a Lane-Change

The parties dispute whether New-burn stopped the U-Haul on February 27 because of traffic violations or because he recognized Akram and Bassett from the previous day. However, an officer who has probable cause to believe a civil traffic violation has occurred may generally stop the vehicle regardless of his or her subjective motivation for doing so. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Ferguson, 8 F.3d 385 (6th Cir.1993) (en banc), cert. denied, 513 U.S. 828, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994). Newburn had probable cause to stop the truck because it failed to signal before changing lanes, in violation of Ohio law. See Ohio Rev.Code Ann. § 4511.39.

In the briefs, the parties focused on whether the truck had violated Ohio’s general prohibition of changing lanes “until the driver has first ascertained that such movement can be made with safety.” Ohio Rev.Code Ann. § 4511.33(A). However, both Newburn and the district court noted the truck’s failure to signal its lane-change. Section 4511.39 of the Ohio code requires the use of a turn signal when changing lanes, regardless of whether a driver complies with § 4511.33(A)’s general admonition to be safe. We affirm the constitutionality of the stop on the basis of the truck’s violation of § 4511.39.

2. Credibility of the Prosecution’s Witnesses

The dissent makes a strong case for disbelieving Newburn’s explanation for the February 27 stop. We agree that this case is an example of the very questionable police conduct that is permitted by Whren and Ferguson. Were the author of this opinion writing on a clean slate, she would hold that the police may not use a trivial traffic violation as a pretext for stopping a vehicle, when their real purpose would not justify a stop. We are, however, bound by the opposite holding. While the dissent demonstrates that the officers were uninterested in the traffic violation and were really looking for drugs, the point of Whren and Ferguson is that the motives of the police are irrelevant. A traffic violation provides a. justification under the Fourth Amendment for a stop, and the stop is deemed valid, regardless of the motive, unless the motorist can demonstrate that the police have violated some other provision of the Constitution, such as the Equal Protection Clause. Akram has not tried to do so, and we cannot see a basis for distinguishing this case from other cases of pretextual stops.

Of course, the dissent is also correct that we could hold the stop unconstitutional if we did not credit Newburn’s testimony. To do so, we would have to conclude that Newburn was lying not just about his motive for the stop-but also about the historical fact of whether the truck failed to signal. The district court, which is charged with primary responsibility for determining witness credibility, believed Newburn’s testimony that he did not see the truck signal its lane-change. J.A. at 78 (Dist.Ct.Op.). We review that factual finding for clear error, giving due deference to the district judge’s credibility determination. See Diaz, 25 F.3d at 394. Certainly this standard for reviewing that finding is not so high that it can never be overcome. However, Akram and Bassett never contradicted Newburn’s testimony. Instead, Akram has argued to us that “it was safe for Mr. Akram’s truck to move out of the passing lane into the right side lane without signaling.” Akram Br. at 15; J.A. at 28 (Suppl. Mot. to Suppress). In addition, the fact that the proceedings in the district court did not initially focus on the signaling issue could have led the district court to give Newburn’s testimony more credit. His statement that the truck did not signal was an explanation of what he saw, given in response to a question from the court, rather than part of the prosecution’s justification for the stop. In the absence of any contradictory testimony, we will abide by the district court’s findings of fact.

B. PROBABLE CAUSE FOR THE FEBRUARY 27 SEARCH

The preferred procedure for searching private property is for the government to obtain a warrant. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). One of the exceptions to this requirement is the “automobile exception,” which excuses the police from obtaining a warrant when they have probable cause to believe that a vehicle they have stopped at the side of the road contains evidence of a crime. See United States v. Pasquarille, 20 F.3d 682, 690 (6th Cir.) (citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)), cert. denied, 513 U.S. 986, 115 S.Ct. 481, 130 L.Ed.2d 394 (1994). When a judicial officer issues a search warrant, we review his or her determination of probable cause with deference. See United States v. Rosenbarger, 536 F.2d 715, 719 (6th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977). However, when a search is conducted without a warrant, the district court decides whether the objective facts known to the officers established probable cause, and we review that decision de novo. See Diaz, 25 F.3d at 394; Pasquarille, 20 F.3d at 685.

We hold that the search was constitutional because the information obtained during the February 26 search provided probable cause to believe there would be contraband or other evidence of criminal activity in the truck on February 27. We reject Akram’s argument that the information obtained on February 26 was “stale” and could not justify a repeat search.⁴

To determine whether evidence establishing probable cause is “stale,” we consider the inherent nature of the suspected crime and the objects sought. See Andresen v. Maryland, 427 U.S. 463, 478 n. 9, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) (noting that business records are likely to be kept); United States v. Canan, 48 F.3d 954, 958 (6th Cir.1995), cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996) (stating that older information is more likely to support finding of probable cause when criminal activity is on-going); United States v. Henson, 848 F.2d 1374, 1382 (6th Cir.1988) (same), cert. denied, 488 U.S. 1005, 109 S.Ct. 784, 102 L.Ed.2d 776 (1989). Given the nature of the crime and the tapes, it might have been unreasonable to expect the same tapes to be in the truck on the second day. However, all that was needed to justify a search was probable cause that the truck would contain some evidence of a crime. See Pasquarille, 20 F.3d at 685-86 (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)).

The inherent nature of the crime and the facts known to the officers would have caused a reasonable person to believe that the truck contained evidence of a crime. The officers knew that Akram and Bassett were returning from a transaction of some kind involving contraband tapes. They were therefore likely to have with them eith^ new tapes or some evidence that would identify their supplier. On February 27, they told Newburn that they were carrying pillows, the same things Akram had falsely claimed to be carrying the day before. Finally, the officers had observed on the first day that the truck was filled to only a fraction of its capacity. J.A. at 140 (Gooding Test.) (describing ten to fifteen boxes, each at most two cubic feet in volume). A reasonable person would expect that the truck had been rented for some purpose. Since it was not being used to carry more than could fit in an ordinary car on the outbound trip, one would infer that Akram and Bassett planned to acquire more cargo at some point in their trip.

Our holding does not mean that police officers, having once observed a person in the possession of contraband, are free to search that person’s effects at any time in the future. Compare United States v. Weaver, 99 F.3d 1372, 1378-80 (6th Cir.1996) (holding that affidavit did not establish probable cause where “only claim of possible wrongdoing is the averment that ... the informant was on the suspect premises and, while there, he saw some quantity of marijuana”), and United States v. Hatcher, 473 F.2d 321, 323-24 (6th Cir.1973) (“The mere fact that two persons known to have been engaged in trafficking in narcotics were observed on the same premises cannot justify a search of the premises without something more.”), with United States v. Caicedo, 85 F.3d 1184, 1192-93 (6th Cir.1996) (holding that defendant’s arrest in connection with companion’s possession of cocaine, coupled with defendant’s attempt to conceal his address and officer’s experience that many drug traffickers keep contraband in their homes, established probable cause to search defendant’s home). Here, Akram’s statement about the purpose of the journey and the apparent fact that he and Bassett expected to need a truck for the return trip provided the necessary evidence that the illegal activity observed on February 26 was part of a continuing course of conduct. It was objectively reasonable for Newburn to believe on February 27 that he had found Akram and Bassett in a later stage of committing the same criminal act he had witnessed the day before.

III. CONCLUSION

Because the February 27 stop and search of Akram’s U-Haul were justified by probable cause, we AFFIRM the district court’s judgment of conviction.

1 . Contrary to OSHP policy, Gooding failed to videotape the stop.

2 . Gooding was incorrect. The lower speed limit applies to any truck with empty weight over eight-thousand pounds. See Ohio Rev.Code Ann. § 4511.21(D)(3). The contents of the truck were therefore irrelevant to the speed limit violation.

3 .This stop, like the one the day before, was not videotaped.

4 . Akram does not challenge whether, on February 26, the officers had a reasonable suspicion of drug activity to justify detaining Akram and Bassett beyond the scope of the initial stop. Cf. United States v. Mesa, 62 F.3d 159, 162-63 (6th Cir.1995) (holding that motorists could be further detained only if "something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention”).