United States v. Hunnicutt

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 9, 1998
• Docket: 97-5087
• Status: Published

Opinion

F I L E D United States Court of Appeals Tenth Circuit PUBLISH FEB 9 1998 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, vs. No. 97-5087

DENNY RAY HUNNICUTT,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 96-CR-87-BU)

C.W. Hack of Hack & Lundy, P.A., Tulsa, Oklahoma, for Defendant-Appellant.

Allen J. Litchfield, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.

Before PORFILIO, TACHA, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-appellant Denny Ray Hunnicutt was convicted of conspiracy to

possess methamphetamine with intent to distribute, in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(A), and 846, and conspiracy to use or carry firearms during

and in relation to the commission of a drug trafficking crime, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He now appeals the district court’s denial

of his motion to suppress all searches and seizures. Our jurisdiction arises under

28 U.S.C. § 1291 and we affirm.

Background

After being indicted by a grand jury, Mr. Hunnicutt moved to suppress

various evidence, and his motion was denied. He conditionally pleaded guilty to

the two counts referred to above and reserved the right to appeal the denial of his

suppression motion. The following facts are recounted in the light most favorable

to the government. See United States v. Villa-Chaparro, 115 F.3d 797, 800-01

(10th Cir.), cert. denied, 118 S. Ct. 326 (1997).

While on patrol during the night of January 7, 1996, Officer Raines of the

Glenpool, Oklahoma Police Department turned onto Highway 75 behind a silver

BMW driven by Mr. Hunnicutt, who was accompanied by two passengers. Over

the course of four or five miles, the officer saw the vehicle weave four or five

times across the shoulder line and the center line. He suspected the driver might

be driving under the influence of alcohol and decided to stop the vehicle. He

turned on the video camcorder in his patrol car and the wireless microphone on

his body which recorded the subsequent events. He then turned on his overhead

emergency lights. The vehicle pulled off to the shoulder but took about ten to

twelve seconds over the course of a half of a mile to slow to a stop.

-2- Mr. Hunnicutt produced a driver’s license, but had no insurance

verification. The officer asked Mr. Hunnicutt to accompany him to his patrol car

where he ran a computer check on the vehicle and driver’s license. In response to

questioning, he told the officer he was taking a passenger to Muskogee. The

computer checks showed the person from whom Mr. Hunnicutt claimed to be

purchasing the vehicle was not the registered owner, and Mr. Hunnicutt’s license

was suspended. In response to further questioning, he denied there were any

illegal substances or weapons in the car. He was then arrested for driving under

suspension.

Mr. Hunnicutt refused to consent to a search of the car, and a canine unit

was requested. A backup officer who had arrived on the scene informed Officer

Raines that the passengers appeared extremely nervous and that one of the

passengers said they were going to Morris, Oklahoma. Approximately fifteen

minutes later, the canine unit arrived. The passengers denied possession of any

illegal weapons or contraband; however, upon exiting the vehicle, one of the

passengers handed the officer a brown bag, in which he found what appeared to

be a large quantity of methamphetamine.

The dog did not alert to the interior or exterior of the car, but did alert to

the bag. A search of the car revealed a packet of bindle bags underneath the

driver’s seat, a banana clip of .22 caliber shells on the console, and financial

-3- records. Upon viewing its contents, the backup officer decided to search the

trunk at the police station. The officer continued searching the passenger

compartment and found a knife between the seats and a loaded .44 magnum

revolver on the console. At the police station, officers recovered several

additional weapons, narcotics, digital scales, ammunition, drug dealing records, a

police scanner, and used and unused syringes.

Mr. Hunnicutt appeals the denial of his suppression motion, arguing that (1)

the initial stop was unjustified, (2) further questioning about guns and drugs was

unsupported by reasonable suspicion, (3) the canine sniff was beyond the scope of

the stop, (4) the canine sniff was outside the purposes of a search incident to

arrest, (5) his refusal to consent to a search should not have been considered in

determining reasonable suspicion or probable cause, (6) impoundment was

improper, and (7) any inventory search was not done pursuant to standardized

procedures.

Discussion

When reviewing the denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous. See United States

v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir. 1995), cert. denied, 116 S. Ct. 2529

(1996). Judging the credibility of the witnesses, determining the weight to be

given to evidence, and drawing reasonable inferences and conclusions from the

-4- evidence are within the province of the district court. See Villa-Chaparro, 115

F.3d at 801. On appeal of a denial of a suppression motion, we consider the

totality of the circumstances and view the evidence in the light most favorable to

the government. Villa-Chaparro, 115 F.3d at 800-01. The ultimate determination

of reasonableness under the Fourth Amendment is a question of law which we

review de novo. See id.

The Fourth Amendment protects the “right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. A traffic stop is a “seizure” within the

meaning of the Fourth Amendment, “even though the purpose of the stop is

limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S.

648, 653 (1979). A routine traffic stop, however, is more analogous to an

investigative detention than a custodial arrest. See United States v. Jones, 44

F.3d 860, 871 (10th Cir. 1995). We therefore analyze such stops under the

principles developed for investigative detentions set forth in Terry v. Ohio, 392

U.S. 1 (1968). See Botero-Ospina, 71 F.3d at 786. To determine the

reasonableness of an investigative detention, we make a dual inquiry, asking first

“whether the officer’s action was justified at its inception,” and second “whether

it was reasonably related in scope to the circumstances which justified the

interference in the first place.” Terry, 392 U.S. at 20.

-5- A. The Initial Stop

Mr. Hunnicutt argues the initial stop violated the Fourth Amendment. He

asserts that there was never any traffic violation and that the allegation of

improper use of lane was a pretext for searching the vehicle. Our cases make

clear that the government need not show a violation actually occurred to justify an

initial traffic stop. An initial traffic stop is valid under the Fourth Amendment

not only if based on an observed traffic violation, but also if the officer has a

reasonable articulable suspicion that a traffic or equipment violation has occurred

or is occurring. See Botero-Ospina, 71 F.3d at 787. It is irrelevant that the

officer may have had other subjective motives for stopping the vehicle. See id.;

accord Whren v. United States, 116 S. Ct. 1769, 1773-77 (1996). Our sole

inquiry is whether the particular officer had reasonable suspicion that the

particular motorist violated “any . . . of the multitude of applicable traffic and

equipment regulations” of the jurisdiction. Prouse, 440 U.S. at 661.

Oklahoma law allows driving in the center lane for certain purposes and

under certain circumstances, none of which is consistent with weaving into and

out of the center lane. See Okla. Stat. Ann. tit. 47, § 11-309.2 (West 1988). Mr.

Hunnicutt argues that he never crossed into the center lane, but the district court’s

contrary finding is not clearly erroneous given the officer’s testimony.

The district court also found that the vehicle weaved across the shoulder

-6- line three or four times, but Mr. Hunnicutt contends that the testimony on this

point was not credible because § 11-309.2 was cited in the police report, and not

§ 11-309.1, which governs crossing the shoulder line. See id. § 11-309.1. The

officer testified that he stopped Mr. Hunnicutt for “improper use of lane,” which

encompasses crossing the center line and the shoulder line. Thus, the officer had

a reasonable articulable suspicion that Mr. Hunnicutt had violated statutes

governing the proper use of lanes. Alternatively, after witnessing his driving

conduct, the officer had a reasonable articulable suspicion that Mr. Hunnicutt was

driving under the influence of alcohol. See id. § 11-902. The initial stop

therefore did not offend the Fourth Amendment.

B. Further Detention and Questioning

Mr. Hunnicutt argues that questioning about guns or drugs was “far

outside” the scope of the initial stop, and without any subsequent events to lead a

reasonable officer to believe that a gun or drug violation was occurring. An

officer conducting a routine traffic stop may request a driver’s license and vehicle

registration, run a computer check, and issue a citation. See United States v.

Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095

(1994). The investigative detention usually must “last no longer than is necessary

to effectuate the purpose of the stop,” and “[t]he scope of the detention must be

carefully tailored to its underlying justification.” Florida v. Royer, 460 U.S. 491,

-7- 500 (1983).

Lengthening the detention for further questioning beyond that related to the

initial stop is permissible in two circumstances. First, the officer may detain the

driver for questioning unrelated to the initial stop if he has an objectively

reasonable and articulable suspicion illegal activity has occurred or is occurring.

See United States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993). Second, further

questioning unrelated to the initial stop is permissible if the initial detention has

become a consensual encounter. See Gonzalez-Lerma, 14 F.3d at 1483. The

officer had not returned Mr. Hunnicutt’s license at the time he asked about guns

and drugs, so further questioning unrelated to the initial stop must have been

supported by an objectively reasonable suspicion of illegal activity. See id.;

United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993) (holding that

encounter cannot become consensual while officer retains driver’s documents).

A variety of factors may contribute to the formation of an objectively

reasonable suspicion of illegal activity. Among those factors that have justified

further questioning are having no proof of ownership of the vehicle, having no

proof of authority to operate the vehicle, and inconsistent statements about

destination. See United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995);

Gonzalez-Lerma, 14 F.3d at 1483-84; United States v. Pena, 920 F.2d 1509, 1514

(10th Cir. 1990), cert. denied, 501 U.S. 1207 (1991). Also among those are driving

-8- with a suspended license, see Jones, 44 F.3d at 872, and reluctance to stop, see

id.; Villa-Chaparro 115 F.3d at 802; United States v. Walraven, 892 F.2d 972, 975

(10th Cir. 1989). In particular, the inability to offer proof of ownership or

authorization to operate the vehicle has figured prominently in many of our cases

upholding further questioning. See United States v. Horn, 970 F.2d 728, 732

(10th Cir. 1992); United States v. Turner, 928 F.2d 956, 959 (10th Cir.), cert.

denied, 502 U.S. 881 (1991); United States v. Arango, 912 F.2d 441, 447 (10th

Cir. 1990), cert. denied, 499 U.S. 924 (1991); see also United States v. Fernandez,

18 F.3d 874, 879 (10th Cir. 1994) (The “defining characteristic of our traffic stop

jurisprudence is the defendant’s lack of . . . some . . . indicia of proof to lawfully

operate and possess the vehicle in question, thus giving rise to objectively

reasonable suspicion that the vehicle may be stolen.”)

When the officer asked Mr. Hunnicutt about guns and drugs, he was

confronted with a driver who had no proof he was the vehicle’s owner, no

registration, and no proof he was otherwise authorized to operate the vehicle.

The person he claimed to have purchased the vehicle from was not the registered

owner. He failed to stop promptly, which led the officer to wonder whether the

occupants were stuffing things under the seats; and after the stop, the passengers

repeatedly moved back and forth and leaned over. To understate, we disagree

with Mr. Hunnicutt’s contention that no subsequent events justified further

-9- questioning. Police officers need not close their eyes to suspicious circumstances.

See United States v. Espinosa, 782 F.2d 888, 891 (10th Cir. 1986). Under the

totality of the circumstances, Mr. Hunnicutt’s further detention and questioning

were supported by a reasonable articulable suspicion of illegal activity. 1 See

Turner, 928 F.2d at 959 (holding reasonable suspicion “sufficient to permit the

single question about the presence of drugs or weapons”).

C. The Canine Sniff

Mr. Hunnicutt maintains that the canine sniff was beyond the scope of any

justified intrusion. A canine sniff itself does not implicate Fourth Amendment

rights because of the limited information it provides and its minimal

intrusiveness. See United States v. Place, 462 U.S. 696, 707 (1983). Thus, we

have held that a canine sniff of an already legitimately detained automobile is not

a “search” within the meaning of the Fourth Amendment. See United States v.

Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990). Likewise, detention of the

1 We do not consider in our assessment of reasonable suspicion, as the district court did, the driver’s suspended license or lack of verification of insurance. Although these factors support reasonable suspicion, see Jones, 44 F.3d at 872; United States v. Pereira-Munoz, 59 F.3d 788, 791-92 (8th Cir. 1995), the officer expressly testified at the suppression hearing that he did not rely on them. See III R. at 30. In the case today, ample other factors were present, within the officer’s awareness, and articulated by him at the hearing. We therefore leave for another day the question of whether factors not within the officer’s awareness or not relied upon by him may be considered by a reviewing court.

- 10 - driver at the scene to accomplish a canine sniff is generally reasonable where the

driver is already under lawful arrest. See United States v. Fiala, 929 F.2d 285,

288 (7th Cir. 1991) (holding one and one-half hour wait for dog reasonable

because defendant was already under lawful arrest). Arrest “is inevitably

accompanied by future interference with the individual’s freedom of movement.”

Terry, 392 U.S. at 26.

Based on these legal principles, and under the circumstances of this case,

no individualized reasonable suspicion of criminal activity was required to call

the canine unit. The officers were already justified in impounding the vehicle

because no one had indicia of authority to drive it or verification of insurance.

See South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976). Mr. Hunnicutt was

already under lawful arrest for driving under suspension, and the wait for the dog

was only fifteen minutes. Alternatively, the sniff and detention to accomplish it

were supported by reasonable suspicion based on the factors discussed above, and

the additional factors the officer testified were within his awareness at that time:

the extreme nervousness of the passengers and the inconsistent statements about

destination. See United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir.), cert.

denied, 115 S. Ct. 1721 (1995); Soto, 988 F.2d 1556 & n.4 (stating that although

nervousness of either the driver or passenger itself is insufficient to create

reasonable suspicion, there are, no doubt, circumstances in which nervousness

- 11 - contributes to reasonable suspicion); United States v. Zukas, 843 F.2d 179, 182-

83 (5th Cir. 1988), cert. denied, 490 U.S. 1019 (1989) (holding plane passenger’s

nervousness contributed to reasonable suspicion). This analysis of the propriety

of the canine sniff renders moot Mr. Hunnicutt’s argument that it was beyond the

purposes of a search incident to arrest.

D. Refusal to Consent to Search

Mr. Hunnicutt asserts that his refusal to consent to search should not have

been used to contribute to the officer’s suspicions. We agree, but conclude the

sniff was independently justified for the reasons discussed above, and that the

later searching was independently supported by probable cause after one of the

passengers handed the officer a large quantity of what appeared to be

methamphetamine, to which the trained drug dog alerted. See Michigan v.

Thomas, 458 U.S. 259, 261-62 (1982) (per curiam) (holding that properly finding

some contraband supports probable cause for additional searching); Morales-

Zamora, 914 F.2d at 205 (holding dog alert created probable cause to search).

Mr. Hunnicutt’s assertion is not without evidentiary basis. Officer Raines

explicitly testified that the refusal to consent persuaded him Mr. Hunnicutt “had

something to hide.” III R. at 30. Although ample other factors supporting

reasonable suspicion were present here, as well as alternative justifications for all

searching and further detention, we emphasize that refusal to consent should not

- 12 - have been considered in determining reasonable suspicion. See Florida v.

Bostick, 501 U.S. 429, 437 (1991); Royer, 460 U.S. at 498; Brown v. Texas, 443

U.S. 47, 51-52 (1979); United States v. Manuel, 992 F.2d 272, 274 (10th Cir.

1993). Any other rule would make a mockery of the reasonable suspicion and

probable cause requirements, as well as the consent doctrine. These legal

principles would be considerably less effective if citizens’ insistence that searches

and seizures be conducted in conformity with constitutional norms could create

the suspicion or cause that renders their consent unnecessary.

E. Impoundment of the Vehicle

Mr. Hunnicutt challenges the impoundment of his vehicle because one of

the passengers had a valid license and Mr. Hunnicutt permitted him to drive the

vehicle. However, Mr. Hunnicutt had no evidence of authority to permit another

to drive the vehicle, and no one produced any verification of insurance. Thus, the

officers properly impounded the vehicle in their community-caretaking function.

See South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976); Cady v.

Dombrowski, 413 U.S. 433, 441 (1973). Alternatively, the officers properly

impounded the vehicle to later search it based on probable cause. See Thomas,

458 U.S. at 261; Chambers v. Maroney, 399 U.S. 42, 51-52 (1970); United States

v. Anderson, 104 F.3d 1059, 1065-66 (10th Cir. 1997).

- 13 - F. Inventory Search

Finally, Mr. Hunnicutt argues that any inventory search was invalid because

it was not done pursuant to standardized procedures. The officer testified that he

was unaware of any such procedures; therefore, any inventory search by him

necessarily would have been unconstitutional. See Opperman, 428 U.S. at 374-

75. As discussed above, however, all searching was supported by probable cause

after one of the passengers handed the officer what appeared to be a large

quantity of methamphetamine, to which the trained drug dog alerted. The

government need not establish a regulated inventory search as an alternative

justification.

AFFIRMED.

- 14 -