United States v. Mason

628 F.3d 123, 2010 U.S. App. LEXIS 24999, 2010 WL 4977817
Court of Appeals for the Fourth Circuit·Decided December 8, 2010·No. 07-4900·Published·Cited by 75 cases

Opinions

OPINION

NIEMEYER, Circuit Judge:

After completing a traffic stop of Victor Mason on Interstate 20, between Atlanta and South Carolina, with the issuance of a warning ticket, the Georgia state trooper making the stop extended it for several minutes, based on the trooper’s suspicion of criminal activity, to allow a drug-detection dog to sniff Mason’s vehicle. The dog alerted multiple times to the presence of a narcotics odor and then jumped into the car through an open window and sat on the back seat of Mason’s vehicle, again alerting to the presence of a narcotics odor. A search of the vehicle thereafter uncovered approximately 10 kilograms of cocaine, for which Mason was convicted of conspiracy to violate 21 U.S.C. § 841(a) and sentenced to a mandatory term of life imprisonment, under 21 U.S.C. § 841(b)(1)(A).

Mason’s appeal challenges the constitutionality of the search on the ground that the trooper impermissibly extended the traffic stop to obtain probable cause to search the vehicle, as well as the enhancement of his sentence by reliance on two allegedly invalid previous drug-trafficking [126]*126convictions. For the reasons that follow, we affirm.

I

At approximately 11:40 a.m. on August 12, 2005, Georgia State Patrol Trooper Blake Swicord observed Mason driving eastbound on Interstate 20 in Morgan County, Georgia, in a vehicle that had, in Trooper Swicord’s opinion, excessively tinted windows. Swicord activated his patrol car’s blue lights to pull Mason over, which automatically activated audio and video recording equipment, capturing the traffic stop on tape.

Trooper Swicord testified that after he turned on his blue lights, it took Mason “a while to pull over,” which “was not normal,” and that he observed Mason having a conversation with his passenger, which “raised [his] suspicion.” After Mason pulled over and lowered his window, Trooper Swicord noticed, as he approached the vehicle, that Mason was nervous and sweating. He also immediately smelled an “extreme odor” of air freshener coming from the vehicle. Officer Swicord testified at the suppression hearing that the odor was “absolutely abnormal” and strong enough to give an occupant of the ear a headache. Swicord also observed that there was only one key on the key ring and that there was no luggage in the interior of the vehicle. He saw on the back seat the newspaper for that day (recognizing Tiger Woods’ picture) with a label on it that said “Radisson Hotel.” Swicord testified that these factors led him to believe that Mason and his passenger, Nathaniel Govan, were on a “turn-around” trip to Atlanta, a known source city for drugs. Swicord also testified that Inter state 20 was common route for drug traffickers.

After Mason provided his driver’s license and the vehicle’s registration, Trooper Swicord asked him to step out of the vehicle. When he asked Mason who owned the car, Mason replied that his daughter did. Swicord then asked Mason his daughter’s name and the name of his passenger, as well as the purpose for their journey. Mason told Swicord that he had driven to Atlanta to see his uncle about getting a deed. Swicord then walked to the passenger-side window and asked Go-van, who had remained in the vehicle, the reason for their trip. Govan told a different story, stating that they had driven to see a friend, giving two different names. Swicord’s questioning of Mason lasted just over two minutes (11:41:20 a.m. to 11:43:34 a.m.) and his questioning of Govan lasted just over one minute (11:43:40 a.m. to 11:44:50 a.m.). Because the two stories conflicted and the newspaper indicated that Mason and Govan had stayed in a motel, Trooper Swicord concluded that both were “lying about their itinerary and were involved in criminal activity.”

Trooper Swicord returned to his patrol car, where he radioed Sergeant Michael Kitchens, a member of the K-9 unit, requesting that Kitchens come to the scene with a drug-detection dog. He then exited to test the tint of the windows of Mason’s vehicle and determined that they were in fact illegally tinted. Swicord returned to the patrol car to write a warning ticket regarding the illegal tint and to relay to his dispatcher Mason’s and Govan’s names, as well as insurance and registration information. This practice was routinely followed as a part of a traffic stop to verify information about the vehicle and to check for any outstanding warrants.

Swicord again exited his patrol car and handed the warning ticket to Mason regarding the illegal tint. This occurred at 11:50:45 a.m., less than 11 minutes after Swicord fust activated his blue lights. At this point, Swicord had finished all the [127]*127steps necessary to complete the traffic stop.

Trooper Swicord then asked Mason for consent to search his vehicle, and Mason refused. Swicord informed Mason that he believed that there were drugs in the car and that he was going to have a dog sniff the car to determine whether drugs were inside. Swicord ordered Govan out of the car, by which point in time Sergeant Kitchens had arrived. Sergeant Kitchens took his drug-detection dog on a leash around the outside of Mason’s vehicle, and on the first lap around the vehicle (at 11:55:02 a.m.), the dog alerted at both the passenger-side and driver-side doors. On a second lap around the vehicle, the dog jumped into the vehicle through the open driver-side window and gave a positive indication of the presence of drugs by pointing her nose next to the speaker in the back seat and sitting down on the seat.

After Sergeant Kitchens coaxed the dog out of the car, Trooper Swicord searched the vehicle. In the trunk, he found approximately 10 kilograms of cocaine powder in a black gym bag.

Following Mason’s indictment for conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1),

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United States v. Mason, 628 F.3d 123, 2010 U.S. App. LEXIS 24999, 2010 WL 4977817 (4th Cir. 2010).

628 F.3d 123 (United States v. Mason) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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