F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 18 2000 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v. No. 98-2308 (D.C. No. CR 98-63 LH) RAYMOND FARMER, (District of New Mexico) Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, Circuit Judge, McWILLIAMS, Senior Circuit Judge and EBEL, Circuit Judge.
Appellant Raymond Farmer was indicted on one count of possession with
intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. After an evidentiary hearing, the
district court denied Farmer’s motion to suppress evidence obtained following a
vehicle stop. A jury subsequently convicted Farmer on the single count in the
indictment. On appeal, Farmer argues that the district court erred by (1)
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. improperly denying his motion to suppress, (2) allowing the cocaine to be
displayed to the jury and admitting numerous photographs of the cocaine into
evidence, and (3) overruling discovery-based objections to the testimony of two
prosecution witnesses. We exercise jurisdiction under 28 U.S.C. § 1291 and
AFFIRM.
BACKGROUND
On the night of January 14, 1998, New Mexico State Police Sergeant
Charles Devine 1 was patrolling Highway 54, which is the major highway
connecting El Paso, Texas and Alamogordo, New Mexico. Devine testified that
Highway 54 is a major corridor for drug smuggling. Moreover, the officer
testified that he knew the Border Patrol checkpoint on Highway 54 was closed
that night.
At approximately 10:10 p.m., Sergeant Devine noticed a pickup truck
heading northbound on 54 which was traveling approximately fifteen miles per
hour below the posted speed limit of 65 miles per hour. At that point, the officer
turned onto the highway to follow the truck, and immediately noticed that it was
1 At the suppression hearing, Sergeant Devine testified that he has served 10 years with the New Mexico State Police. During those ten years, Sergeant Devine has made approximately 15,000 to 18,000 traffic stops and has been involved in roughly 200 narcotics arrests.
-2- having difficulty remaining in one lane. After the truck crossed over both the
shoulder stripe and the center lane stripe several times, Sergeant Devine became
concerned that the driver was either intoxicated or that there was something
wrong mechanically with the vehicle, so he activated his red lights and pulled the
truck over.
Sergeant Devine then got out of his car and approached the truck, which he
noticed was running very poorly. He asked the defendant, the only occupant of
the truck, if he was having difficulty with the vehicle. Devine testified that the
defendant was “virtually nonresponsive” and made no eye contact. However,
despite his initial failure to respond or make eye contact, Devine did state that the
defendant answered all of his questions.
Sergeant Devine then asked defendant for his license and vehicle
registration, which the defendant handed to the officer along with his insurance
card. The license identified the driver as Raymond Farmer from Roswell, New
Mexico, while the insurance card indicated that Farmer was not the owner of the
vehicle. The truck was registered to a Miguel Ochoa in El Paso, Texas. Devine
also noticed that the insurance had been purchased the same day. Sergeant
Devine found these facts to be significant, because a month earlier he had pulled
over another vehicle where the driver was not the registered owner of the vehicle
-3- and the insurance had been purchased the same day. Narcotics were eventually
found in that vehicle.
Devine then asked if Farmer was traveling all the way to Roswell that
night, to which Farmer responded that he was heading only to Alamorgordo to
stay with his nephew because he was not feeling well. When questioned about his
nephew, Farmer was unable to provide either an address or a phone number.
Farmer informed Sergeant Devine that he had been in El Paso for a couple
of days visiting Miguel Ochoa and was heading back to Roswell for a couple of
days. Sergeant Devine testified that he observed only a small bag in the truck,
which he described as a camera bag approximately twelve inches by four to six
inches. He noticed no other luggage or clothing in the vehicle. This lack of
luggage aroused the officer’s suspicions given that Farmer had purportedly spent
several days in El Paso.
Sergeant Devine also testified that he found suspicious the fact that,
although the truck was about twenty years old, it was freshly painted and had new
tires and expensive wheels, and no clutter on the inside of the truck. The glove
compartment contained only the proof of insurance document.
At this point Sergeant Devine suspected that Farmer may have been
transporting narcotics. Sergeant Devine returned to his patrol car, and ran various
routine computer checks on the license and vehicle. During these checks, he
-4- learned that the vehicle had made a recent border crossing, although the actual
day could not be pinpointed. Sergeant Devine then contacted Deputy Brent Hill, a
canine handler, and requested the assistance of his dog.
While all of this was going on, U.S. Border Patrol Agent John Swaykus
arrived on the scene. He had heard Sergeant Devine calling for Deputy Hill over
the radio, and came to see if Devine needed any assistance. The computer check
results then came back and Sergeant Devine completed his written warning to
Farmer for the lane violation. While he was finishing the citation, Deputy Hill
arrived on the scene with his dog.
Devine then returned to Farmer’s truck and asked him to get out of the
truck. Devine explained to Farmer that he was issuing him a written warning and
advised him to have the truck fixed, and then proceeded to return all of the
documents he had received from Farmer. 2
After returning all of the documents, Devine asked Farmer three questions.
Devine first asked if Farmer was carrying any large amounts of cash, to which
Farmer responded, “no.” He then asked if Farmer was carrying any marijuana,
and Farmer again responded, “no.” Finally, Devine asked if Farmer was carrying
2 While Sergeant Devine issued the warning to Farmer, Officers Swaykus and Hill were standing behind and to the side of Sergeant Devine. Neither officer participated in the issuing of the citation, or the ensuing questions. Moreover, Deputy Hill’s canine remained in his car during this period.
-5- any cocaine. Farmer responded by raising his arms and taking several steps back
and stating “No, but if there’s anything in there, I don’t know about it.” At that
point finding Farmer’s reaction very suspicious, Devine introduced Farmer to
Deputy Hill, and requested permission to search his vehicle with the assistance of
Deputy Hill’s dog. Farmer responded, “Go ahead.” Hill retrieved his dog and
again requested consent to search the truck which he received from Farmer. The
dog alerted to all four wheels on the vehicle and on the two rear wheels under the
truck bed area. Devine then personally inspected the wheels of the vehicle and
noticed that they contained no wheel weights which aid in the balancing of the
tires. Based on the dog’s reaction to the wheels and the lack of weights, Sergeant
Devine concluded that the vehicle was carrying narcotics.
For safety reasons Sergeant Devine elected not to inspect the contents of
the wheels roadside and instead asked Farmer to accompany the agents to the
Border Patrol station in Alamogordo. Farmer agreed. At the Border Patrol
station, another canine alerted to the rear wheels of the pickup. The tires were
removed from the rear wheels, revealing secret compartments containing a total of
twelve brick-shaped packages of cocaine weighing approximately 30 pounds.
Farmer was then formally arrested.
On April 3, 1998, Farmer filed a motion to suppress physical evidence and
statements. A hearing on Farmer’s motion was held May 6, 1998, and the motion
-6- was denied. A jury trial was then held on May 11 and 12, 1998. On the morning
of trial, immediately preceding opening statements, Farmer alleged that the
government had failed to comply with Fed. R. Crim. P. 16(a)(1)(E) and the
court’s standing discovery order with respect to expert witness disclosure. 3
Farmer requested that the court exclude the testimony of forensic chemist, Ted
Chapman, and DEA Special Agent James Baker. Farmer claimed that he was not
given the basis for Chapman’s conclusion that the substance he tested was
cocaine, nor the basis for Agent Baker’s opinion on the weight of the cocaine and
his opinion as to intent to distribute versus personal use. The district court
offered Farmer a one-week continuance, which he declined. The testimony of the
two witnesses was admitted at trial over the objection of Farmer.
Finally, at trial, the government offered numerous photographs of the truck
and concealed compartments as well as separate photographs of the bundles of
cocaine that were removed from the wheels of the truck. Farmer objected to eight
of the photographs on the ground that they were cumulative in violation of Fed.
R. Evid. 403. In addition, during the testimony of one of the government
3 Rule 16(a)(1)(E) states that “[a]t the defendant’s request, the government shall disclose to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial.” Fed. R. Crim. P. 16(a)(1)(E). Farmer made such a request of the government on May 4th. In addition, the district court’s discovery order, issued February 10th made the same demand on the government as rule 16.
-7- witnesses, the government offered into evidence the box containing the packages
of cocaine seized from the truck and had the witness come down from the witness
stand and describe the contents of the box. Counsel objected on the grounds that
this was highly prejudicial, but was overruled.
After the jury trial, defendant was convicted of one count of possession
with intent to distribute more than 5 kilograms of cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2, and sentenced to 121
months imprisonment.
DISCUSSION
I. Motion to Suppress
On appeal of a motion to suppress, we view the evidence in the light most
favorable to the prevailing party, here the government. See United States v.
Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998). We accept the district court’s
factual findings unless they are clearly erroneous. Id. “‘[A] finding is “clearly
erroneous” when although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction that a mistake has
been committed.’” United States v. De La Cruz-Tapia, 162 F.3d 1275, 1277 (10th
Cir. 1998) (quoting United States v. United States Gypsum Co., 333 U.S. 364,
395, 68 S.Ct. 525, 92 L.Ed.2d 746 (1948)). We review de novo a district court’s
-8- ultimate conclusion of reasonableness under the Fourth Amendment. See Cruz-
Tapia, 162 F.3d at 1277.
Farmer does not contest the justification for the stop, 4 nor does he complain
about the length of time from the initial stop to the delivery of the warning
citation. Rather, Farmer claims that he was unlawfully detained in violation of
the Fourth Amendment when Sergeant Devine extended the length of the traffic
stop after he returned Farmer’s documents and asked the three questions
concerning money and drug possession, because the encounter was not consensual
and the officer did not have reasonable suspicion to further detain Farmer. The
district court concluded that the questions following the return of the documents
occurred during a consensual encounter and, moreover, that the officer had
reasonable suspicion that the vehicle was carrying narcotics.
It is well established that during a routine traffic stop a law enforcement
officer may request a driver’s license and vehicle registration, run a computer
check, and issue a citation. United States v. Elliott, 107 F.3d 810, 813 (10th Cir.
1997). Once the driver produces a valid license and registration, he is free to go
4 “[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). Sergeant Devine observed Farmer weaving across the lanes indicating that he may have been either intoxicated or experiencing equipment failure. Based on this observation, Sergeant Devine was justified in making a traffic stop.
-9- on his way without the delay of further questioning. See id. However, if the
officer wants to detain the driver for further questioning he may do so if “(1)
‘during the course of the traffic stop the officer acquires an objectively reasonable
and articulable suspicion that the driver is engaged in illegal activity’; or (2) ‘the
driver voluntarily consents to the officer’s additional questioning.’” Id. (quoting
United States v. Sandoval, 29 F.3d 537, 540 (10th Cir. 1994)). If, however, the
officer continues to question the driver in the absence of either of these two
circumstances then “any evidence derived from that questioning (or a resulting
search) is impermissibly tainted in Fourth Amendment terms.” Elliott, 107 F.3d
at 813 (internal quotations and citation omitted).
A. Consensual Encounter
In this case, we find that the questions between Sergeant Devine and
Farmer concerning the carrying of cash, marijuana, or cocaine occurred during a
consensual encounter. “In determining whether a driver and police officer are
engaged in a consensual encounter in the context of a traffic stop, there are few,
if any, bright-line rules.” Id. We have held that the return of the driver’s
documents is required before a detention can end and a consensual encounter can
be found; however, we have also stated that the return of the documents does not
automatically equate to a consensual encounter. United States v. Anderson, 114
F.3d 1059, 1064 (10th Cir. 1997).
- 10 - Once an officer has returned the documentation to the driver, our analysis
turns to whether the driver has “an objective reason to believe that he was not
free to end his conversation with the law enforcement officer and proceed on his
way.” Sandoval, 29 F.3d at 540 (quotations and citation omitted). In making this
inquiry a court must consider the totality of the circumstances surrounding the
encounter. Elliott, 107 F.3d at 814. In United States v. Turner, 928 F.2d 956
(10th Cir. 1991), we set out the oft repeated factors that may suggest that an
encounter is not consensual. These include a “coercive show of authority” by an
officer, “the presence of more than one officer, the display of a weapon, physical
touching by the officer, or his use of a commanding tone of voice indicating that
compliance was compelled.” Id. at 959; see also Anderson, 114 F.3d at 1064; see
also Elliott, 107 F.3d at 814; Sandoval, 29 F.3d at 540-41. In Sandoval, however,
we cautioned that Turner did not set out an exhaustive list of factors, the absence
or presence of which compels a finding one way or another that a consensual
encounter occurred; instead, we stated that they are only factors that may be
considered under the totality of the circumstances analysis. Sandoval, 29 F.3d at
541.
In this case, at the time Sergeant Devine asked Farmer the three follow-up
questions, he had returned to Farmer all the documents he had taken from him.
At the point at which Sergeant Devine returned the documents to Farmer, Farmer
- 11 - was standing outside of his car and three officers were present: Devine, U.S.
Border Patrol Agent Swaykus, and Deputy Hill. Farmer argues that because he
was requested to get out of his car and was then questioned in the presence of
three officers, the encounter was not consensual. We disagree.
First, Devine asked Farmer to exit his vehicle before he gave him the
written warning for the purpose of issuing the citation. Thus, at the time Farmer
stepped out of his truck, the officer still had Farmer’s documents in his
possession and therefore he was still being detained. However, once Sergeant
Devine finished issuing the warning, he returned all of the documents to Farmer.
It was only then that he asked the three questions. 5 Because Farmer was not
asked to step out of the truck after his documents were returned, the fact that he
was out of the car when Sergeant Devine asked the questions would not by itself
indicate to a reasonable person that he was not free to leave.
5 Farmer directs our attention to United States v. Dove, 89 F.3d 851, No. 95-1415, 1996 WL 327456 (10th Cir. June 14, 1996) (unpublished), in which we held that a driver’s consent to further questioning, after his license and registration were returned, was involuntary. Id. at *5. In Dove, we focused on the fact that the driver was asked to exit the vehicle after the officer had already returned the documents to the driver. Id. Moreover, the officer directed the driver to the back of the vehicle and proceeded to ask the driver whether there was a licensed passenger in the car that could drive. Id. at *1. This series of questions was followed then by questions about the presence of drugs in the car and a request to search. Id. In this case, Farmer was asked to exit the truck prior to the return of his documents, for the purpose of issuing the citation. Sergeant Devine then returned the documents and asked three quick questions. Nothing in this scenario indicates that a reasonable person would not feel free to leave.
- 12 - Farmer also argues that because there were three officers present when
Devine directed the questions at Farmer, the encounter was not consensual. At
the time Devine asked Farmer the three questions, Agent Swaykus and Deputy
Hill were standing behind Devine and off to the side. They did not participate in
any way in the questioning of Farmer. Moreover, at no time did any of the
officers draw or motion towards their sidearm or any other weapon. Sergeant
Devine did not use a commanding or insistent voice, nor did he intimate that
Farmer was required to answer any additional questions. Finally, although the
drug dog was present at the scene, he was still in Deputy Hill’s car at the time of
the questioning. Moreover, none of the officers informed Farmer prior to the
questioning that the dog was present or that they intended to search his vehicle. 6
Under these circumstances, there was no evidence of any coerciveness on the part
of the officers, nor any indication that Farmer was required to stay and answer the
questions. While the officers did not specifically tell Farmer that he was free to
leave, this is not required for an encounter to be consensual. Anderson, 114 F.3d
at 1064; Elliott, 107 F.3d at 814. Accordingly, Farmer was not illegally detained
6 An officer’s intentions to search a vehicle are irrelevant to the question of whether there was a consensual encounter unless the officer communicates that intent to the defendant. Anderson, 114 F.3d at 1065. In this case, Devine never communicated to Farmer prior to the questioning that he intended to search the truck with a drug dog.
- 13 - when Sergeant Devine asked him the three questions concerning cash and drugs in
his possession.
B. Reasonable Suspicion To Search the Truck
After Sergeant Devine returned Farmer’s license and registration, he
proceeded to ask three questions. Devine first asked if Farmer was carrying large
amounts of cash, to which Farmer responded, “no.” He then asked if Farmer was
carrying any marijuana, again Farmer responded, “no.” Finally Devine asked if
Farmer was carrying any cocaine. In response to this question, Farmer backed up
and raised his hands in the air and said, “No, but if there’s anything in there, I
don’t know about it.” Following this response by Farmer, Devine requested
permission to search the vehicle with the assistance of Deputy Hill’s drug dog.
We find that this search was supported by reasonable suspicion.
Generally, an officer’s actions during a traffic stop must be reasonably
related in scope to the circumstances that justified the initial stop. See United
States v. McRae, 81 F.3d 1528, 1533 (10th Cir. 1996). “An investigative
detention may be expanded beyond its original purpose, however, if during the
initial stop the detaining officer acquires ‘reasonable suspicion,’ of criminal
activity. . . .” United States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir.
1997). Although “reasonable suspicion may be founded upon factors consistent
with innocent travel, . . . [s]ome facts must be outrightly dismissed as so innocent
- 14 - or susceptible to varying interpretations as to be innocuous.” Salzano, 158 F.3d
at 1111 (internal quotations and citation omitted). In this case the facts and
circumstances following the questioning collectively justified the request to
search the truck and the ensuing search.
At the suppression hearing, the government argued and the district court
found the following factors supported the reasonableness of Sergeant Devine’s
suspicion that criminal activity was afoot: (1) the truck did not belong to Farmer
and the insurance had been obtained on the same day, (2) Farmer was traveling
late at night, on a known drug corridor from El Paso, a known drug source city,
when the border check point was closed, (3) although the truck was in poor
running condition, it was freshly painted with new tires and expensive wheels, (4)
Farmer was unable to provide the officer with an address or phone number for his
nephew in Alamagordo, (5) the lack of clothing or luggage for a trip to El Paso
for a couple of days, and (6) Farmer’s initial unresponsiveness and lack of eye
contact with the officer. We analyze each of these factors separately and then in
the aggregate to determine whether they support a reasonable suspicion of
criminal activity.
First, we have often found that the inability of a defendant to provide proof
that he is entitled to operate the vehicle he is driving can support a finding of
reasonable suspicion. See Villa-Chaparro, 115 F.3d at 802 (considering fact that
- 15 - driver did not own the car and VIN appeared to have been altered); United States
v. Jones, 44 F.3d 860, 872 (10th Cir. 1995) (considering in a reasonable suspicion
calculus the inability of the driver to prove she had permission to drive rental
car); United States v. Arango, 912 F.2d 441, 447 (10th Cir. 1990) (factoring in
the inability of officer to contact the actual owner of the car to determine if the
driver was in lawful possession). In this case, Sergeant Devine never tried to
contact Mr. Ochoa, the lawful owner of the car, however, Devine testified that he
still found it suspicious, in conjunction with the other factors, that Farmer was not
the actual owner of the car. While this factor alone may not be highly suspicious,
given that the vehicle came back as not stolen and the VIN checked out, the fact
that the truck had insurance purchased the same day also plays into the suspicion
calculus. By itself, same-day insurance may not be suspicious, however, Sergeant
Devine testified at the suppression hearing that only a month earlier he had
stopped another vehicle in which he ultimately found drugs where the driver was
not the owner of the car and the insurance was purchased the same day. We can
not completely discount the previous experience of the officer. United States v.
Wood, 106 F.3d 942, 946 (10th Cir. 1997) (noting that “[c]ommon sense and
ordinary human experience are to be employed” when looking at the totality of the
circumstances). Although neither of these factors–the ownership of the car and
- 16 - the same-day insurance–are manifestly suspicious, both could properly contribute
to a reasonable suspicion in an experienced officer.
The district court also found the fact that Farmer was traveling late at night
on a known drug corridor, from a known drug source city, at a time when the
border check point was closed to be factors which suggested that criminal activity
was afoot. We have previously considered the fact that a car is traveling at night
on a known drug corridor, from a known drug source city when evaluating
whether an officer had reasonable suspicion. see Jones, 44 F.3d at 872
(considering in determination that officer had reasonable suspicion the fact that
car was traveling between Los Angeles and Detroit, two cities known for high
drug usage); United States v. Barbee, 968 F.2d 1026, 1029 (10th Cir. 1992)
(upholding evening stop of vehicle that was traveling on a highway known to be
used by drug smugglers because it avoids a border checkpoint). This factor can
therefore properly be considered in determining whether reasonable suspicion
existed.
Next, the district court found suspicious the fact that the truck was in poor
running condition and yet had a new paint job, new tires, and expensive wheels.
The cases the government relies upon are inapposite to the present case. In both
Villa-Chapparo and Mendez, we found alterations in the car to be suspicious.
However, the alterations in those two cases did not deal with a simple paint job or
- 17 - expensive wheels, but rather dealt with the alteration of the VIN plate, which
could indicate the car was stolen, see Villa-Chapparo, 115 F.3d at 802, and a
crooked faceplate and dismounted radio indicating that the owners may have been
trying to conceal drugs, see United States v. Mendez, 118 F.3d 1426, 1432 (10th
Cir. 1997). Further, in this case, the alterations made to the car could not have
led the officer to suspect that the car was stolen. 7 Nevertheless, a new paint job
could conceal a special compartment built into the vehicle body or it might help
conceal other indications of alterations in the chassis. Thus, although these facts
are not entitled to much weight, we do not dismiss them entirely from the
equation.
The district court next cited the fact that Farmer could not provide an
address or telephone number for the nephew he claimed he was going to stay with
that night in Alamagordo. We find that Farmer’s inability to provide an address
or telephone number can be used in finding reasonable suspicion. An officer
could reasonably find it suspicious that a driver would not know at least a street
name for where he was staying that night or have a way to contact his nephew.
See Mendez, 118 F.3d at 1431-32 & n.4 (considering as a factor in reasonable
suspicion that driver did not know the address of his sister, where he claimed he
7 During the course of the initial stop, Sergeant Devine received confirmation that the truck was not reported stolen.
- 18 - was headed, but knew how to get there); United States v. Kopp, 45 F.3d 1450,
1453-54 (10th Cir. 1995) (finding suspicious the driver’s inability to identify
where exactly in North Carolina he was headed).
Sergeant Devine was also suspicious of the lack of luggage present in the
car, given Farmer’s story that he had been visiting a friend in El Paso for a couple
of days and was going back home to Roswell for a couple of days. The only bag
that Devine noticed in the truck was a small bag that he described as a camera
bag. There were no other bags or clothes in the truck and no trunk in which a bag
could have been found. Under these circumstances, we find the lack of luggage
could properly contribute to a finding of reasonable suspicion. See Jones, 44 F.3d
at 872 (considering lack of luggage–only three small pieces of luggage–for a two-
week trip to Los Angeles); Arango, 912 F.2d at 447 (considering inadequate
amount of luggage for two-week trip).
Finally, the district court considered the initial unresponsiveness of Farmer
when Sergeant Devine first approached the truck. We have frequently stated that
nervousness “is of limited significance in determining reasonable suspicion and
that the government’s repetitive reliance on the nervousness of either the driver or
passenger as a basis of reasonable suspicion in all cases of this kind must be
treated with caution.” United States v. Fernandez, 18 F.3d 874, 879 (10th Cir.
1994) (citation and quotation omitted). In this case, Farmer initially failed to
- 19 - respond to the officer’s questions; however, Devine testified that Farmer did
ultimately answer all of his questions. Moreover, Farmer had explained to the
officer that he was not feeling well, which could easily explain his initial failure
to respond. However, once again this factor may contribute to a finding of
reasonable suspicion when added to all the other factors.
When this combination of suspicious circumstances is added to the unusual
response given by Farmer to the last of the three questions asked by Sergeant
Devine concerning the presence of cocaine in the truck–“No, but if there is any I
don’t know about it”–Sergeant Devine had reasonable suspicion to search the car
with the drug dog. 8 Given the totality of the circumstances, we find that Sergeant
Devine had reasonable suspicion that criminal activity was afoot, justifying a
canine search.
C. Consent to Search the Truck
Even if there was not reasonable suspicion, the search by the canine would
still be justified because Farmer voluntarily consented to the search. Following
Farmer’s unusual and suspicious answer to the final cocaine question, Sergeant
8 The district court found that the officer had reasonable suspicion even before he had asked Farmer the three questions. Because we find that the three questions occurred during a consensual encounter, it is unnecessary to decide whether Sergeant Devine had reasonable suspicion prior to the responses he received to the questions. It is clear, however, that once Farmer answered the questions the officer had reasonable suspicion when looking at the totality of circumstances.
- 20 - Devine introduced Farmer to Deputy Hill and asked if he could search the truck
with the assistance of Deputy Hill’s dog. Farmer replied, “Go ahead.” Once Hill
retrieved his dog, he again requested and received consent to search the truck.
Farmer argues that this consent was tainted by the unlawful detention which
occurred when Devine put the questions about narcotics to Farmer. We have
already determined that the question and answers between Sergeant Devine and
Farmer were consensual and thus at the time he answered, Farmer was not being
illegally detained.
The voluntariness of consent is a question of fact to be determined from the
totality of the circumstances, and therefore a district court’s finding of consent
will not be disturbed unless, viewing the facts in the light most favorable to the
court’s determination, those findings are clearly erroneous. See United States v.
McKneely, 6 F.3d 1447, 1452 (10th Cir. 1993).
In this case, Farmer verbally consented to the search twice, once to
Sergeant Devine and once to Deputy Hill. Moreover, there was no evidence that
the officers used a commanding voice when asking to search the truck, or ever
pointed or motioned towards their weapons, or communicated in any way that
consent was required. Under these circumstances, we find that the consent was
voluntary and thus the search was legal.
- 21 - D. Subsequent Search and Arrest
When the drug dog was taken around the truck, he alerted to all four wheels
on the vehicle and on the two rear wheels under the truck bed area. Devine then
personally inspected the wheels of the vehicle and noticed that they contained no
wheel weights which further confirmed his suspicions that the wheels contained
narcotics. Because of safety concerns over inspecting the wheels roadside,
Sergeant Devine asked Farmer to accompany the agents to the Border patrol
station in Alamogordo. Farmer agreed. At the Border patrol station secret
compartments were found in the tires which contained bricks of cocaine. Because
Farmer was removed from the scene of the initial detention, we must determine if
the removal was permissible, and, if not, whether Farmer’s consent to go to the
station was voluntary.
The district court found that, following the alert by the canine and the
visual inspection of the tires by Devine, Devine had probable cause to arrest
Farmer. “Absent exigent circumstances, once the detaining officer removes the
detainee from the site of the initial stop, the line between investigative detention
and custodial arrest has been crossed, and the transfer must have been supported
by probable cause.” United States v. Soto, 988 F.2d 1548, 1558 (10th Cir. 1993).
Given the alert of the drug dog to all wheels of the vehicle and the lack of
weights in the tires, we cannot conclude that the district court’s finding of
- 22 - probable cause to arrest at that point was clearly erroneous. Therefore, regardless
of whether Farmer consented to the trip to the border patrol station, it was
consistent with the requirements of the Fourth Amendment.
In conclusion, the exchange between Sergeant Devine and Farmer occurred
during a consensual encounter. Once Sergeant Devine asked the questions and
received answers from Farmer he had reasonable suspicion to search the truck.
Even without reasonable suspicion, however, Sergeant Devine was justified in
searching the truck based on the consent from Farmer. Based on the reaction of
the drug dog and the visual observations by Sergeant Devine, the officer had
probable cause to arrest, and the transfer to the border patrol station and
subsequent search was therefore justified. Accordingly, we affirm the district
court’s denial of defendant’s motion to suppress.
II. Admission of Cocaine Evidence
During trial the government introduced thirteen photographs depicting the
compartments found in the truck that contained the cocaine and pictures of the
cocaine itself. Farmer objected to the introduction of eight of the photographs as
cumulative and prejudicial. Later in the trial, the government displayed the
cocaine in court and had one of its witnesses approach the jury and describe the
- 23 - cocaine. Farmer again objected on the grounds that the display was highly
prejudicial.
We review the admission of evidence under Fed. R. Evid. 403 for an abuse
of discretion. See United States v. McVeigh, 153 F.3d 1166, 1199 (10th Cir.
1998), cert. denied, 526 U.S. 1007 (1999).
Fed. R. Evid. 403 states that a trial court may exclude relevant evidence “if
its probative value is substantially outweighed by the danger of unfair prejudice
. . . or needless presentation of cumulative evidence.” “Evidence is cumulative if
repetitive, and if the small increment of probability it adds may not warrant the
time spent in introducing it.” United States v. Davis, 40 F.3d 1069, 1076 (10th
Cir. 1994) (quotations and citations omitted). The photographs in this case show
chronologically the disassembly process engaged in by the agents and show the
organized and systematic way in which the compartments in the tires and the
cocaine packages were numbered. No two photographs depict the same thing.
The government was entitled to show the jury the sophisticated manner in which
the cocaine was being trafficked. The main issue in the trial, as conceded by
Farmer in his closing argument, was knowledge. Therefore, the methodical
manner in which the cocaine was hidden is important to that question, as is the
quantity that was placed in the tires. The jury could have concluded, from seeing
the pictures which demonstrated where the cocaine was placed in the tires, that
- 24 - the driver of the truck must have known the drugs were in the tires. In addition,
the use of the photographs likely saved time during trial because it spared the
witness from having to describe verbally exactly what he saw in the truck on the
night in question. We therefore cannot say that the trial judge abused his
discretion in admitting the photographs.
Farmer also objected to the display of the cocaine in the courtroom by a
government witness. We have held, like other circuits considering the issue, that
the display of cocaine in a drug case is not more prejudicial than probative. See
Jones, 44 F.3d at 875-76 (finding that there was no abuse of discretion where trial
court permitted the government to display over 200 pounds of cocaine); United
States v. Gonzalez, 933 F.2d 417, 428 (7th Cir. 1991) (trial court did not abuse its
discretion in permitting display of 2,248 kilograms of cocaine in drug conspiracy
case); United States v. Ramos Rodriguez, 926 F.2d 418, 420 (5th Cir. 1991) (trial
court did not err in displaying 227 pounds of marijuana); United States v. Arango-
Correa, 851 F.2d 54, 58 (2d Cir. 1988) (trial court did not abuse its discretion
under Fed. R. Evid. 403 in permitting display of 500 pounds of cocaine in drug
conspiracy case); United States v. Peyro, 786 F.2d 826, 830 (8th Cir. 1986) (trial
court did not abuse its discretion in permitting display of 10.5 kilograms of
cocaine).
- 25 - Under the circumstances of this case, undue prejudice did not occur. The
cocaine was only displayed during the testimony of one witness. Furthermore, the
trial judge did not allow the cocaine to go back into the jury room during
deliberations. After the witness displayed the cocaine to the jury, the only other
mention of the display was one brief and innocuous comment during closing
argument. Under these facts, we cannot say that the trial judge abused his
discretion.
III. Discovery Sanctions
Farmer contends that the government failed to comply with its expert
witness disclosure obligations under both Fed. R. Crim. P. 16(a)(1)(E) and the
trial court’s standing discovery order with respect to witnesses Baker and
Chapman. Baker testified as to the value of the cocaine and to his belief that the
amount of cocaine is consistent with an intent to distribute. Forensic chemist
Chapman testified that the substance in the truck was cocaine. Farmer argues that
the government failed to reveal the bases and reasons for the experts’ testimony.
Prior to trial, Farmer objected to the admission of these experts’ testimony and
requested a one-month continuance. The court denied this request and offered a
one-week continuance which Farmer declined. Farmer now contends that the
district court abused its discretion in failing to suppress the experts’ testimony.
- 26 - We review a district court’s decision of whether to grant sanctions for
discovery violations for abuse of discretion. United States v. Ivy, 83 F.3d 1266,
1280 (10th Cir. 1996). Fed. R. Crim. P. 16(a)(1)(E) states “[a]t the defendant’s
request, the government shall disclose to the defendant a written summary of
testimony that the government intends to use under Rules 702, 703, or 705 of the
Federal Rules of Evidence during its case-in-chief at trial.” The Federal Rules of
Criminal Procedure give a trial court broad discretion in imposing sanctions on a
party who fails to comply with a discovery order. See Fed. R. Crim. P. 16(d)(2)
(“[T]he court may order [a] party to permit the discovery or inspection, grant a
continuance, or prohibit the party from introducing evidence not disclosed. . . .”).
The district court’s discretion, however, is guided by several factors:
(1) the reasons the government delayed producing the requested materials, including whether or not the government acted in bad faith when it failed to comply with the discovery order; (2) the extent of prejudice to the defendant as a result of the government’s delay; and (3) the feasibility of curing the prejudice with a continuance.
United States v. Mavrokordatos, 933 F.2d 843, 847 (10th Cir. 1991) (quotations
and citations omitted); see also United States v. McClelland, 141 F.3d 967, 972
(10th Cir. 1998). If a sanction is imposed it should be the “least severe sanction
that will accomplish . . . prompt and full compliance with the court’s discovery
orders.” United States v. Peveto, 881 F.2d 844, 863 (10th Cir. 1989) (quotations
- 27 - and citations omitted). Moreover, often it is the case that the party who requested
disclosure has not been prejudiced and therefore no sanction is necessary. See
United States v. Charley, 189 F.3d 1251, 1262 (10th Cir. 1999), cert. denied, 120
S.Ct. 842 (2000). Finally, the exclusion of an expert witness’s testimony, as
requested by Farmer, is almost never granted in the “absence of a constitutional
violation or statutory authority for such exclusion.” Id. (quotations and citations
omitted).
In this case, with respect to witness Baker, the government turned over to
Farmer, two days after his request, a statement that disclosed Baker’s
qualifications and the opinion he would render that the amount seized was
consistent with an intent to distribute. Farmer also received notice of the factors
Baker relied on to make this determination and his familiarity with the price of
cocaine. The district court found this disclosure complied with its discovery
order. Finally, Farmer failed to specify any significant hindrance to his
preparation for cross-examination based on the alleged failure of the government,
or what he would have done differently if he had the requested information.
Considering that the trial court offered Farmer a one-week continuance, which he
declined, we cannot say that the district court abused its discretion in admitting
Baker’s testimony.
- 28 - With respect to witness Chapman, the government concedes that it failed to
provide the basis of Chapman’s conclusion–i.e., it did not describe the test used
to conclude the substance was cocaine. However, the government argues that
under the circumstances of this case the omission is harmless, and we agree.
First, Farmer had known since his arrest in January of 1998, nearly four months
prior to trial, that the government was claiming that the substance seized was
cocaine. In addition, the trial court offered Farmer a one-week continuance,
which he declined. In declining the one-week continuance and pushing for a one-
month continuance, Farmer was unable to articulate a specific reason why a
month’s time was necessary. Finally, Farmer has consistently maintained both at
trial and in argument to this court that the only issue in this case was whether
Farmer had knowledge of the drugs. The issue of whether the substance found in
the truck was actually cocaine was never a seriously contested issue at trial.
Under these circumstances, we find that the district court did not abuse its
discretion when it offered a one-week continuance and then, when Farmer
declined this offer, allowed the expert testimony at trial.
- 29 - CONCLUSION
For the reasons set forth above, the judgment of the district court is
AFFIRMED.
ENTERED FOR THE COURT
David M. Ebel Circuit Judge
- 30 -