United States v. Lindsey , 160 F. App'x 708 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 22, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-3494
JAMES EARL LINDSEY, (D.C. No. 03-CR-40011-01-RDR)
(D.Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before McCONNELL and BALDOCK, Circuit Judges, and ARMIJO,** District
Judge.***
A jury convicted Defendant James Earl Lindsey of possession of crack cocaine and
marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), use and carrying
of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
*
This order and judgment is not binding precedent, except under the doctrines of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.
The Honorable Maria C. Armijo, United States District Judge for the District of
**
New Mexico, sitting by designation.
After examining the briefs and appellate record, this panel has determined
***
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
924(c)(1)(A), and possession of a firearm by a drug user in violation of 18 U.S.C. §
922(g). On appeal, Defendant challenges the district court’s denial of his motion to
suppress. According to Defendant, the police officer who stopped his vehicle lacked
reasonable suspicion to detain him once the initial purpose of the stop was satisfied. We
have jurisdiction under 28 U.S.C. § 1291. In reviewing the district court’s denial of
Defendant’s motion to suppress, we consider the totality of the circumstances and view
the evidence in a light most favorable to the Government. We accept the district court’s
factual findings unless clearly erroneous. The ultimate determination of reasonableness
under the Fourth Amendment is a question of law reviewable de novo. United States v.
McKissick, 204 F.3d 1282, 1296 (10th Cir. 2000). Applying these standards, we affirm.
I.
The relevant facts as found by the district court and supported by the record are as
follows: Kansas Highway Patrol Trooper Craig Davis stopped Defendant’s van on
Interstate 70 eastbound during daylight hours. While following the van, Officer Davis
observed a crack in the windshield apparently obstructing the driver’s view in violation of
Kansas State law.1 When Defendant rolled down his window following the stop, the
officer smelled a “very strong” odor of air freshener. Defendant’s eyes appeared glassy
1
Defendant does not argue on appeal that the officer’s initial stop of his van was
unlawful. In any event, we agree with the district court’s conclusion that “Trooper
Davis’s observation of a crack that spanned the entire width of the windshield and which
appeared to be in the driver’s field of vision supplied reasonable suspicion to support the
traffic stop.”
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and bloodshot. Defendant produced a California driver’s license. He informed the
officer that he was traveling from California to Georgia. The officer asked Defendant
whether he owned the vehicle. Defendant said he was the co-owner and had been making
payments. The officer asked for Defendant’s registration and insurance. Defendant
replied that his insurance was “okay” but he didn’t have the card. Defendant told the
officer he had just come from a jury trial in California for an incident related to his
vehicle, and the police had retained his insurance card. He produced a registration that
listed Alan Nash as the owner. Defendant informed the officer Alan Nash had leased the
van but Defendant had paid for it. The officer then asked, “Is Alan just a buddy of yours
or a relation? Or...” to which Defendant replied, “Yeah. Yeah. I’ll show you my receipt.
I got a receipt. It’s my vehicle.”
Officer Davis observed the van’s passenger door had been “shot up,” apparently
with buckshot. Defendant explained that “Some guys in California” had shot the door:
“Some gang guys. You know. They was some guys in blue.” The officer advised
Defendant that he would write a warning, and went back to his patrol car. Three minutes
after the initial stop, Officer Davis radioed for backup. Trooper Jeffrey Patrick and his
canine arrived twelve minutes later.
Dispatch informed Officer Davis of an outstanding Georgia warrant against
Defendant for hindering or obstructing an officer. The warrant did not request
extradition. Officer Davis could not determine whether the van’s registration was
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current, as the tag number was not on file. The officer re-approached Defendant’s van
and asked him about the Georgia warrant. Defendant said he didn’t know anything about
it and that “I never had no incident with the cops.” The officer handed Defendant a
warning citation for the cracked windshield and a regular citation for no proof of
insurance. The officer then stated, “That’s all I got for you. Have a safe trip.” The
officer then stepped away from Defendant’s van, stepped back towards it, and asked,
“Hey, James, before you take off can I ask you something real quick? You don’t travel
with any handguns or anything illegal or anything like that?” The defendant replied no.
Officer Davis asked if he could search to make sure. Defendant replied no. Officer
Davis then told Defendant Officer Patrick would run a dog sniff around the perimeter of
the vehicle. The dog alerted. The officers searched the vehicle and found cocaine,
marijuana, and a gun.
II.
The evidence required to establish reasonable suspicion must create more than an
unparticularized hunch, but is considerably less than proof of wrongdoing by a
preponderance of the evidence. United States v. Sokolow, 490 U.S. 1, 7 (1989); United
States v. Cantu, 87 F.3d 1118, 1121 (10th Cir. 1996). We review the facts under the
totality of the circumstances to determine they create reasonable suspicion. United States
v. Salzano, 158 F.3d 1107, 1114 (10th Cir. 1998). Extending a detention beyond the
purpose of the initial stop for additional questioning is permissible if the officer has an
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objectively reasonable and articulable suspicion that illegal activity has occurred or is
occurring. United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998).
A number of factors present in this case may give rise to reasonable articulable
suspicion of drug activity. For instance, inability to prove ownership of or authorization
to operate a vehicle normally leads first to reasonable suspicion of a stolen vehicle. See
United States v. Williams, 271 F.3d 1262 (10th Cir. 2001) (citing cases). We have,
however, frequently used an inability to prove ownership or authorization in conjunction
with other factors to justify continued detention and expanded questioning about drugs.
“[I]nability to offer proof of ownership or authorization to operate the vehicle has figured
prominently in many of our cases upholding further questioning.” Hunnicutt, 135 F.3d at1349 (citing cases). Failure to show insurance, a strong odor of air freshener, or vague,
ambiguous, or evasive answers can also contribute to reasonable suspicion. Id., 135 F.3d
at 1350, n.1 (insurance), Salzano, 158 F.3d at 1114 (air freshener); United States v.
Santos, 403 F.3d 1120, 1131 (10th Cir. 2005) (answers). Involvement in prior crimes
may also contribute to reasonable suspicion of criminal activity. United States v.
Sandoval, 29 F.3d 537, 542 (10th Cir. 1994) (citing cases). Lying about one’s criminal
history makes an even more powerful inference of wrongdoing. Santos, 403 F.3d at
1132-1133.
III.
We agree with the district court in this case that all of the factors considered
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together created reasonable suspicion justifying Defendant’s detention beyond the initial
purpose of the traffic stop. Defendant’s car smelled strongly of air fresheners, which are
commonly used to mask the smell of drugs. Defendant could produce no proof of
insurance, and the tag number from the registration was not on file. The van was
registered in someone else’s name. Defendant had difficulty explaining this discrepancy.
A spray of buckshot marked the vehicle’s passenger side, apparently the result of some
sort of violent encounter. Georgia had placed a warrant on Defendant for obstructing the
police, and Defendant denied it. Collectively, these factors give rise to a clear probability
of criminal activity. We hold the totality of the circumstances in this case created
reasonable suspicion for Officer Davis to detain Defendant beyond the initial purpose of
the stop while Officer Patrick ran the dog sniff that led to the discovery of the drugs.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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