United States v. Douglas Jensen

425 F.3d 698, 2005 U.S. App. LEXIS 21631, 2005 WL 2456930
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 6, 2005
Docket04-30094
StatusPublished
Cited by113 cases

This text of 425 F.3d 698 (United States v. Douglas Jensen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Douglas Jensen, 425 F.3d 698, 2005 U.S. App. LEXIS 21631, 2005 WL 2456930 (9th Cir. 2005).

Opinion

BEA, Circuit Judge.

It was an excess of speed that initially brought him to the attention of authorities, but bad news eventually caught up with Defendant-Appellant Douglas Jensen (“Jensen”). Jensen was convicted for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and sentenced to life imprisonment without parole under 21 U.S.C. § 841(b)(1)(A) and 21 U.S.C. § 851(a)(1). On appeal, Jensen contends that the district court erred in denying his motion under Fed.R.Crim.P. 12(b)(3) to suppress the evidence seized from his vehicle and residence on the grounds that his arrest and the seizure of his vehicle were executed without probable cause and, accordingly, all of the evidence in the case was seized in violation of the Fourth Amendment.

Jensen also appeals his sentence on the ground that the sentencing scheme under which he was sentenced, 21 U.S.C. § 841(b)(1)(A) and 21 U.S.C. § 851(a)(1), is unconstitutional insofar as it violates: (1) the constitutional separation of powers and non-delegation doctrines; (2) Jensen’s due process rights; and (3) the Eighth Amendment’s prohibition on cruel and unusual punishment.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm Jensen’s conviction and sentence.

I. BACKGROUND

A. Report of Jensen’s Reckless Driving

At approximately 8:00 a.m. on February 19, 2003, a private citizen saw a black 1987 Ford Taurus station wagon traveling in excess of 75 miles per hour driving north *701 bound on Highway 93 in Flathead County, Montana. The speed limit in the area was 25 miles per hour. The citizen called 911 and reported that the vehicle was traveling at a high rate of speed and “weaving in and out of traffic” in a reckless manner. He provided the dispatcher with a description of the car and the license number of the vehicle.

Thereafter, the Flathead County Sheriffs Department issued an “attempt to locate” dispatch for a reckless, possibly drunk driver, reported by a concerned citizen, and that dispatch was received by the police department in Kalispell. An “additional attempt to locate” was later issued and broadcast, which described the car more specifically as a black 1987 Ford Taurus and provided the license plate number.

At approximately 8:30 a.m., Sergeant Lonnie Eugene Cook of the Whitefish Police Department driving south on Highway 93, heard both the original “attempt to locate” dispatch and the additional “attempt to locate” dispatch.

B.Arresting Officer’s Information Regarding Jensen’s Drug Activities

Sergeant Cook had served on the Northwest Drug Task Force (“Task Force”) from September 2000 to January 2003. During that time, he was also cross-deputized as a Flathead County Deputy Sheriff. In January 2003, Cook returned to service as a sergeant on the Whitefish Police Department, and was replaced on the Task Force by another Whitefish police officer, Detective Michael Meehan. While on the Task Force, Cook had received intelligence on Jensen’s drug-running activities which included a description of Jensen’s car: A black Ford Taurus station wagon. '

On the basis of knowledge obtained during his time on the Task Force, Cook suspected that Jensen was the driver of the vehicle. Cook then called the Flathead County Sheriffs Department to confirm his suspicion that Jensen was the driver of the vehicle. After receiving confirmation from the Sheriffs Department that the car was Jensen’s, Cook continued driving south on Highway 93 with the intention of intercepting the speeding vehicle. At that point, Cook heard on his police radio Flathead County Deputy Tykachk say that the vehicle was going north at a “high rate of speed” and that Tykachk “could not get in behind it” or catch up due to the vehicle’s speed. Cook continued south along Highway 93.

C. Traffic Stop

At approximately 9:00 a.m., Cook caught up with Jensen as Jensen’s vehicle made a westbound turn onto Blanchard Lake Road. Sergeant Cook stopped Jensen’s car, asked to see Jensen’s driver’s license, and proceeded to question Jensen. A short time later, Deputy Tykachk and Flathead County Corporal Phil Meredith arrived.

Corporal Meredith began to conduct an investigation and field sobriety test. Based on the information he obtained, Corporal Meredith concluded., that Jensen was not intoxicated but indicated he would cite Jensen for careless driving.

D. Arrest and Impoundment of Jensen’s Vehicle

From his three years of experience as a member of the Task Force, Cook knew that the Task Force had been interested in Jensen. Cook called Task Force Detective Michael Meehan and informed Meehan that Jensen was the subject of a traffic stop. Cook then asked whether the Task Force “ha[d] any ongoing investigations” or was “looking at[Jensen] for anything” to *702 which Detective Meehan responded, “Oh, I didn’t know he was back from Mexico.” Shortly thereafter, Meehan arrived at the scene of the traffic stop.

Cook called Officer Zimmerman, a senior officer on duty at the Kalispell Police Department, and inquired whether the Kalispell Police Department wished to cite Jensen for careless driving or take him into custody. Officer Zimmerman gave Cook clearance to arrest Jensen. Cook arrested Jensen and ordered Jensen’s vehicle impounded. Cook then took Jensen to the impound lot, where they met Detective Meehan. After Jensen refused to consent to a search of his automobile, a police department K-9 unit drug-sniffing dog was used to check the vehicle. The dog alerted police to the presence of narcotics. Cook then transferred Jensen to the custody of the Kalispell Police Department.

As a result of the dog’s indicating the presence of narcotics in Jensen’s vehicle, Detective Meehan applied to a district court judge for a search warrant to search Jensen’s vehicle for evidence related to the criminal possession of illegal drugs. In addition to describing the results of the canine alert, the sworn application included the statement that Jensen “is known to Meehan and other members of the [Northwest Drug Task Force] of being involved in the sale and trafficking of methamphetamine.” The application also stated:

Meehan has received recent information on or about January 21, 2003 from an informant who has been proven reliable by the NWDTF. The informant advised that Jensen was currently making a trip to the Nevada California [sic] area to pick up a large quantity of methamphetamine. The informant advised that Jensen was using his black Ford station wagon to haul methamphetamine back to Montana.

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Bluebook (online)
425 F.3d 698, 2005 U.S. App. LEXIS 21631, 2005 WL 2456930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-douglas-jensen-ca9-2005.