United States v. Robinson , 16 F. App'x 966 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 14 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3393
(D. Kan.)
JOHN D. ROBINSON, (D.Ct. No. 00-CR-40023-SAC)
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE,
Circuit Judge.
Defendant John D. Robinson entered a conditional guilty plea to possession
of over one hundred kilograms of marijuana with the intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. Mr. Robinson’s
conditional plea reserved the right to appeal the district court’s denial of his
motion to suppress. The district court sentenced Mr. Robinson to sixty months
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The 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.
imprisonment, four years of supervised release, and a $100 assessment. On
appeal, Mr. Robinson challenges the district court’s denial of his motion to
suppress. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
BACKGROUND
On March 9, 2000, Mr. Robinson drove his pickup truck, which had a
locked cover over the truck bed, eastbound on Interstate 70. Kansas Highway
Patrol Trooper Michael R. Weigel stopped Mr. Robinson for speeding. Trooper
Weigel’s patrol car was equipped with a video camera. He also wore a
microphone that recorded the audio. The audio-video equipment recorded the
stop and subsequent encounter between Trooper Weigel and Mr. Robinson. The
videotape admitted into evidence begins at 11:05 a.m. when Trooper Weigel’s
patrol car pulled behind Mr. Robinson’s pickup truck on the side of Interstate 70.
Trooper Weigel approached Mr. Robinson in his truck and asked for Mr.
Robinson’s driver’s license and registration. Trooper Weigel explained to Mr.
Robinson he would issue a warning for the speeding violation, and asked Mr.
Robinson where he was coming from. Mr. Robinson responded he was coming
from a ski trip in Colorado. After engaging in a brief dialogue, Trooper Weigel
told Mr. Robinson he intended to run Mr. Robinson’s driver’s license check
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through police dispatch.
Trooper Weigel returned to his patrol car, and waited for the results of the
driver’s license check. At approximately 11:12 a.m., Trooper Weigel informed
Mr. Robinson the driver’s license check would take a few more minutes because
the dispatcher’s computer system was not operating correctly, and asked Mr.
Robinson for proof of insurance. After examining Mr. Robinson’s proof of
insurance, Trooper Weigel returned to his patrol car.
During the traffic stop, Trooper Weigel noticed Mr. Robinson made very
little eye contact, his hands were visibly shaking, he was “real fidgety,” and he
consistently wiped his palms on his pant legs. Trooper Weigel also observed
litter from fast food wrappers and a box of “Stay Awake” pills on the passenger
seat. Trooper Weigel’s suspicions were raised because, in his experience, he
knew drug traffickers use caffeine pills or other substances to stay awake, in
order to arrive at their destination more quickly. In addition, Mr. Robinson had
no visible skiing paraphernalia or clothing that would normally be expected of a
traveler returning from a ski vacation. Finally, Trooper Weigel testified the back
of Mr. Robinson’s pickup truck was “squatting low,” suggesting it contained a
“heavy load.”
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At approximately 11:17 a.m., Trooper Weigel handed Mr. Robinson back
his driver’s license and documents, and issued him a warning ticket. Trooper
Weigel told Mr. Robinson, “That’s all I got,” and then immediately inquired,
“You don’t mind if I ask you a couple of questions do you?” Trooper Weigel
testified Mr. Robinson answered, “Yes.” Trooper Weigel then asked, “You don’t
have anything illegal in the back of the truck, can I take a look in the back?” Mr.
Robinson replied he had lost the key that unlocked the cover of his truck bed.
However, he assured Trooper Weigel the truck bed was “pretty much empty.”
Trooper Weigel then inquired, “You don’t mind if I get a dog up here and
sniff around a little?” Mr. Robinson responded, “Sure.” As Trooper Weigel
walked back to his patrol car, he told Mr. Robinson to “hold tight.” Trooper
Weigel returned to his car and radioed for the canine unit. A second trooper,
Trooper Irock, arrived shortly thereafter and sat in Trooper Weigel’s patrol car.
At approximately 11:23 a.m., Trooper Weigel told Mr. Robinson, who
remained seated in his pickup truck, the canine unit would arrive in a few
minutes. Trooper Weigel testified Mr. Robinson responded the additional delay
for the canine unit was “‘Okay,’ or words to that effect.” At 11:27 a.m., Trooper
Patrick arrived with his drug sniffing dog. Troopers Weigel and Patrick went up
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to Mr. Robinson’s pickup and asked Mr. Robinson whether there was anything
illegal in the back of the truck; Mr. Robinson denied the presence of anything
illegal. The drug sniffing dog then walked around the back of the truck and
alerted to the presence of controlled substances at the tailgate of Mr. Robinson’s
pickup truck. After the dog alerted, the troopers searched the cab of the pickup
for the missing key to the truck bed cover, but they were unable to find it.
Ultimately the troopers used a crowbar to pry the cover off. The troopers
observed a large steel box running the length and width of the truck bed, and then
placed Mr. Robinson under arrest. The steel box inside Mr. Robinson’s pickup
truck contained approximately 385 pounds of marijuana.
Mr. Robinson was charged in a one count grand jury indictment with
violations of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. Mr.
Robinson entered a conditional guilty plea and filed a motion to suppress the
evidence. The district court denied the motion, holding the traffic stop evolved
into a consensual encounter between Mr. Robinson and Trooper Weigel, and the
troopers’ search of the pickup truck did not violate the Fourth Amendment.
Specifically, the district court reasoned the detention ended when Trooper Weigel
returned Mr. Robinson’s license and documents and told Mr. Robinson that was
all Trooper Weigel had for him; thereafter, Mr. Robinson’s and Trooper Weigel’s
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encounter during the additional questioning was consensual. The district court
also concluded Mr. Robinson “consented to extend the length of [the] stop for a
canine to arrive and walk around the exterior of his pickup truck.” According to
the district court, once the dog alerted to the presence of controlled substances,
the troopers had probable cause to search the pickup truck.
On appeal of a motion to suppress, we view the evidence in the light most
favorable to the prevailing party, in this instance the government. United States
v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999). “We review the district court’s
findings of historical fact for clear error and give due weight to inferences which
the district court draws from those findings.” 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....
Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”
United States v. De la Cruz-Tapia, 162 F.3d 1275, 1277 (10th Cir. 1998)
(quotation marks, alteration, and citation omitted). “The credibility of witnesses
and the weight to be given the evidence is the province of the district court.”
Patten, 183 F.3d at 1193. The district court’s ultimate determination of
reasonableness under the Fourth Amendment is a question of law we review de
novo. De la Cruz-Tapia, 162 F.3d at 1277.
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DISCUSSION
Mr. Robinson does not challenge the basis or validity of the traffic stop.
He claims Trooper Weigel detained him without his consent by (1) continuing to
question him after returning his driver’s license and other documents, and (2)
requiring him to wait for the canine unit to arrive to “search” his truck. 1
It is beyond dispute 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. McRae, 81 F.3d 1528, 1534 (10th
Cir. 1996) (quotation marks and citation omitted). Generally, once the driver
produces a valid license and registration, “he must be allowed to proceed on his
way, without being subject to further delay by police for additional questioning.”
Id. (quotation marks and citation omitted). An officer may, however, further
question the driver “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.” United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997)
1
Mr. Robinson also alleges Trooper Weigel lacked reasonable and articulable
suspicion that Mr. Robinson was engaged in criminal activity. We need not address
whether Trooper Weigel possessed reasonable and articulable suspicion because we hold
Trooper Weigel’s and Mr. Robinson’s encounter was consensual.
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(quotation marks and citation omitted). The driver’s consent means the encounter
ceases to be seizure or detention, “and hence the Fourth Amendment’s strictures
are not implicated.” Id.In determining whether a consensual encounter or unlawful detention
transpired, we consider the totality of the circumstances. Id. at 814. “A traffic
stop may become a consensual encounter if the officer returns the license and
registration and asks questions without further constraining the driver by an
overbearing show of authority.” United States v. Hernandez, 93 F.3d 1493, 1498
(10th Cir. 1996). “A consensual encounter is the voluntary cooperation of a
private citizen in response to non-coercive questioning by a law enforcement
officer.” United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000) (emphasis
added and quotation marks and citation omitted). Whether an encounter is
consensual “depends on whether the police conduct would have conveyed to a
reasonable person that he or she was not free to decline the officer’s requests or
otherwise terminate the encounter.” Id. (quotation marks and citation omitted).
Although not an exhaustive list, certain factors indicating a “coercive show of
authority” may suggest an encounter is not consensual: “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 might be
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compelled.” United States v. Turner, 928 F.2d 956, 959 (10th Cir.), cert. denied,
502 U.S. 881 (1991); see United States v. Sandoval, 29 F.3d 537, 540-41 (10th
Cir. 1994).
1. Consent to Officer’s Additional Questioning
Mr. Robinson acknowledges Trooper Weigel issued the warning and
returned Mr. Robinson’s documents before asking further questions. Mr.
Robinson claims a reasonable person would not have felt free to leave after
Trooper Weigel said “That’s all I’ve got,” because Trooper Weigel (1) did not
step away from Mr. Robinson’s truck; (2) failed to inform Mr. Robinson he was
free to leave; (3) testified he did not know whether he would have allowed Mr.
Robinson to terminate the encounter and drive away if Mr. Robinson had tried;
and (4) immediately asked Mr. Robinson a series of follow-up questions without
waiting for Mr. Robinson’s response. According to Mr. Robinson, he did not
consent to Trooper Weigel’s inquiry whether he would mind if Trooper Weigel
asked him a few questions; instead, he responded to Trooper Weigel’s request to
look underneath the truck bed cover.
The district court found Trooper Weigel returned Mr. Robinson’s
documents, told him that the purpose of the traffic stop was concluded, stepped
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away from the driver’s window, used a conversational tone of voice, and asked
and received permission before making further inquiries. The court also found
the encounter occurred during the day on a public highway, Trooper Weigel was
the only officer present during the inquiry, and Mr. Robinson could have driven
away from the scene, but instead voiced no objections and remained attentive and
responsive to Trooper Weigel’s questions.
Despite Mr. Robinson’s contentions to the contrary, Trooper Weigel was
not required to step away from Mr. Robinson’s pickup truck or inform Mr.
Robinson he was free to leave, in order for their encounter to be deemed
consensual. See West, 219 F.3d at 1176-77 (recognizing the officer likely stood
close to the vehicle to avoid being hit by traffic on the interstate and holding
“[a]n officer is not required to inform a suspect ... that he was free to leave”).
Nevertheless, after viewing the videotape, we are not “left with the definite and
firm conviction” that the district court clearly erred in finding Trooper Weigel did
step away from Mr. Robinson’s window. De la Cruz-Tapia, 162 F.3d at 1277.
We also note it is evident from the record that Trooper Weigel did not in any way
block the path of Mr. Robinson’s vehicle. Trooper Weigel’s testimony that he did
not know whether or not he would have permitted Mr. Robinson to leave if Mr.
Robinson had tried to drive away is immaterial because this statement is merely
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an expression of his indefinite, subjective motivations in a hypothetical event.
See United States v. Anderson, 114 F.3d 1059, 1065 (10th Cir. 1997).
While it is true Trooper Weigel promptly asked follow-up questions after
returning Mr. Robinson’s documents and telling him “[t]hat’s all I got,” there is
absolutely no evidence in the record suggesting Trooper Weigel’s tone of voice
when asking these relatively routine questions, or his subsequent conduct, was
aggressive or coercive. See West, 219 F.3d at 1177. Although Mr. Robinson
claims he never permitted Trooper Weigel to make further inquiries, the district
court found, based on Trooper Weigel’s testimony, that Mr. Robinson agreed to
allow additional questioning. See Patten, 183 F.3d at 1193 (recognizing witness
credibility and the weight accorded to evidence is within the district court’s
province). In any event, Mr. Robinson implicitly indicated his “voluntary
cooperation” with Trooper Weigel’s questioning when he responded he lost the
key to the truck bed cover. See West, 219 F.3d at 1176. Based on the entire
record and our standard of review, we simply cannot conclude the district court
clearly erred in finding Mr. Robinson consented to additional questioning.
Accordingly, we hold Trooper Weigel asked Mr. Robinson additional
questions during a consensual encounter. In short, Mr. Robinson chose to listen
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to and answer Trooper Weigel’s questions without any objective reason to believe
he was not free to leave.
2. Consent to Extended Encounter to Wait for Canine Unit
Mr. Robinson claims that because Trooper Weigel did not lawfully detain
him after returning his documents, his continued detention “to wait for the canine
unit to arrive to search his truck and the consequent search by the dog constitute
an unreasonable search and seizure.” Stated differently, Mr. Robinson maintains
that he did not consent to await the arrival of the canine unit or the “subsequent
dog sniff search.”
Both parties apparently accept Mr. Robinson’s characterization that the use
of the drug sniffing dog constituted a search of his pickup, and rely on consent to
search case law exclusively. However, this court has recognized a dog sniff of a
lawfully detained vehicle is not a search. United States v. Morales-Zamora, 914
F.2d 200, 203 (10th Cir. 1990). Similarly, random dog sniffing of vehicles
without prior lawful detention or reasonable suspicion is not a search. United
States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993). From the reasoning of this
case law, it is a logical extension that a canine sniff of a vehicle whose driver has
consented to an extended encounter is not a search. See id. Accordingly, the
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drug sniffing dog that walked around the exterior of Mr. Robinson’s pickup truck
did not “search” the truck, and an evaluation under our consent to search case law
is inappropriate. This does not end our analysis, however, for we still must
determine whether the district court clearly erred in finding Mr. Robinson
consented to continue his encounter to await the arrival of the canine unit after
Trooper Weigel completed his additional questioning. See United States v.
Chavira, 9 F.3d 888, 890 n.1 (10th Cir. 1993) (“Although consent is not required
for a dog sniff of a lawfully detained vehicle ... it is required for continued
detention beyond the lawful period.”).
The district court determined Mr. Robinson “consented to extend the length
of this stop for a canine to arrive and walk around the exterior of his pickup
truck.” The district court found Trooper Weigel asked Mr. Robinson whether he
minded waiting for a dog to arrive and sniff around Mr. Robinson’s truck.
According to the district court, Mr. Robinson’s manner and intonation when he
responded “sure” conveyed his consent to Trooper Weigel’s request, and not his
objection. Trooper Weigel then told Mr. Robinson “O.K., hold tight,” which the
district court found was merely a request to be patient while Trooper Weigel made
arrangements for the canine unit. Before the canine unit arrived, Trooper Weigel
returned to the pickup truck and informed Mr. Robinson the delay would last a
couple more minutes. The district court noted Trooper Weigel’s testimony that
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Mr. Robinson indicated the additional delay was okay, and found Mr. Robinson
did not object to the delay. Because the district court concluded Mr. Robinson
plainly consented to wait for the drug sniffing dog to arrive and walk around his
truck, the court held “[t]his is not a situation where the defendant must give any
additional voluntary consent to search, for consent is not required for a dog sniff
of a lawfully detained vehicle.” (Emphasis added and quotation marks and
citation omitted.) Finally, the district court held the troopers had probable cause
to search the pickup truck once the dog alerted to the presence of controlled
substances, and did not need Mr. Robinson’s consent to search.
On appeal, Mr. Robinson contends the district court clearly erred in finding
he consented to Trooper Weigel’s question whether he minded if Trooper Weigel
called a canine unit. Mr. Robinson claims his response can be construed as either
consent (“sure a dog could sniff around”) or objection (“sure he minded if a dog
sniffed around”) to the prolonged encounter and dog sniff. Mr. Robinson’s
argument is not persuasive.
From the record before us, the district court did not clearly err in finding
Mr. Robinson’s demeanor and tone indicated his consent to wait. In addition, Mr.
Robinson does not challenge the district court’s finding that he did not object
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when he learned Trooper Weigel had in fact called a canine unit and the dog
would arrive in a couple of minutes. Trooper Weigel testified that when he
informed Mr. Robinson of the delay in the canine unit’s arrival, Mr. Robinson
indicated his willingness to wait a couple more minutes for the canine sniff by
saying “‘Okay,’ or words to that effect.” In short, Mr. Robinson’s initial response
and subsequent conduct indicate he consented to the extended encounter. See De
la Cruz-Tapia, 162 F.3d at 1277 (“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”).
To the extent Mr. Robinson alleges his consent to the extended encounter
was involuntary or a product of police coercion, we disagree. See Sandoval, 29
F.3d at 541 (recognizing lack of “coercive show of authority” may indicate, but
does not compel the conclusion, that driver consented voluntarily to a police-
citizen encounter). In denying Mr. Robinson’s motion to suppress, the district
court implicitly found Mr. Robinson’s consent to the extended encounter was
voluntary and not coerced. This finding should be accepted by this court absent
clear error. See Patten, 183 F.3d at 1193; see also United States v. Toro-Pelaez,
107 F.3d 819, 824-25 (10th Cir.), cert. denied, 522 U.S. 845 (1997). Mr.
Robinson reiterates his argument that Trooper Weigel did not tell him he is free to
leave; however, Trooper Weigel was not required to inform Mr. Robinson in order
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for the prolonged encounter to be deemed consensual. See West, 219 F.3d at
1176-77. Although Mr. Robinson asserts Trooper Weigel did not inform him he
had the right to refuse consent, Mr. Robinson fails to provide reasoned argument
or legal authority to support a claim that such information must be conveyed for
an extended encounter to be deemed consensual. Mr. Robinson also suggests the
presence of the second trooper created an intimidating environment. It is
uncontroverted Trooper Weigel was the only officer present when Mr. Robinson
initially consented to wait, and when the second officer did arrive he remained in
Trooper Weigel’s car until after the canine unit alerted to the presence of
controlled substances. Finally, Mr. Robinson maintains his consent was
involuntary and coerced because Trooper Weigel was determined to find out what
was under the truck bed cover by “announcing his intent” to call the canine unit.
We note Trooper Weigel first asked Mr. Robinson whether he could bring in the
canine unit, and only after receiving Mr. Robinson’s consent did Trooper Weigel
call for the drug sniffing dog. In other words, Trooper Weigel announced his
intent after receiving Mr. Robinson’s consent. Accordingly, there is no evidence
in the record before us from which we could conclude the district court clearly
erred in finding Mr. Robinson’s consent to the prolonged encounter was voluntary
and not coerced.
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Once the canine alerted to the presence of drugs, the troopers had probable
cause to search the pickup truck, and did not need Mr. Robinson’s consent. Mr.
Robinson briefly asserts, in a conclusory fashion, that the troopers unlawfully
searched the cab of his pickup truck. We note, however, the troopers searched the
cab of the pickup after the dog alerted to the presence of illegal substances, and
the troopers found no evidence in the cab. Furthermore, once the dog alerted,
there was probable cause to conduct a warrantless search of the entire pickup
truck and its contents where contraband may be hidden. See United States v.
Klinginsmith, 25 F.3d 1507, 1510 (10th Cir.), cert. denied, 513 U.S. 1059 (1994);
see also United States v. Barbee, 968 F.2d 1026, 1030 (10th Cir. 1992) (quoting
United States v. Ross, 456 U.S. 798, 825 (1982) (“If probable cause justifies the
search of a lawfully stopped vehicle, it justifies the search of every part of the
vehicle and its contents that may conceal the object of the search.”)). Mr.
Robinson’s argument necessarily fails.
We affirm the district court’s denial of Mr. Robinson’s motion to suppress
the evidence.
Entered by the Court:
WADE BRORBY
United States Senior Circuit Judge
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