United States v. Lloyd , 46 F. App'x 912 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 30 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-3297
(D.C. No. 00-CR-40077-RDR)
TIMOTHY R. LLOYD, (D. Kansas)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and KELLY,
Circuit Judge.
On August 22, 2000, Timothy R. Lloyd (“Lloyd”) was charged in a three-count
indictment as follows: possession of methamphetamine with an intent to distribute in
violation of 21 U.S.C. § 841(a); attempt to manufacture methamphetamine in violation of
21 U.S.C. § 841(a); and possession of a listed chemical with an attempt to manufacture
methamphetamine in violation of 21 U.S.C. § 841(d)(1). On September 19, 2000, Lloyd
filed a motion to suppress the use at trial of evidence obtained in a search of his van
*
This order and judgment is not binding precedent, except under the doctrines of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.
occurring on March 26, 2000, and the evidence obtained in a search of his two residences
occurring on March 26 and March 29, 2000. On October 20, 2000, the district court in a
memorandum order granted Lloyd’s motion to suppress in part, and denied it in part.
Specifically, the district court suppressed the use at trial of the evidence obtained in the
search of Lloyd’s van, but held that the evidence obtained in a search of Lloyd’s two
residences on March 26 and March 29, 2000, was admissible and not subject to a motion
to suppress. On October 27, 2000 the government filed a motion to reconsider that part of
the district court’s order suppressing the use at trial of evidence obtained in the search of
Lloyd’s van, which motion was denied on December 22, 2000. Thereafter on April 17,
2001, Lloyd filed a motion with the district court to reconsider its ruling with regard to
the use at trial of evidence obtained in the search of Lloyd’s two residences. The
government also filed an additional motion asking the district court to reconsider its order
of December 22, 2000, denying its motion to reconsider the order of October 20, 2000.
On May 17, 2001, the district court vacated its earlier order of October 20, 2000, and
denied Lloyd’s motion to suppress in toto, holding that the government, at trial, could use
the evidence obtained in the search of Lloyd’s van, as well as the evidence obtained
thereafter in the search of Lloyd’s two residences.
On June 6, 2001, pursuant to Fed. R. Crim. P. 11 (a)(2), Lloyd entered a
conditional plea of guilty to a one count information alleging a conspiracy to manufacture
and distribute a detectable amount of methamphetamine. He was sentenced to
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imprisonment for 151 months followed by 36 months of supervised release. On appeal,
counsel argues that the district court erred in denying Lloyd’s motion to suppress, as such
relates to both the search of Lloyd’s van and his two residences. Finding no reversible
error, we affirm.
On March 26, 2000, at 1:19 p.m. Lloyd, while traveling east in a blue two-tone van
on Interstate 70, was stopped by Russell County Sheriff’s Deputy Kelly Schneider
(“Schneider”) on suspicion of driving while intoxicated. According to Schneider, Lloyd
was weaving in and out of his driving lane. When asked, Lloyd said he had not been
drinking. When requested, Lloyd gave Schneider his driver’s license and registration.
Schneider returned to his patrol car, ran the usual checks and wrote Lloyd a warning
citation. Schneider then returned to Lloyd’s vehicle and asked Lloyd to step out of his
vehicle and accompany him to the area between the rear of the van and the front of the
patrol car. After giving Lloyd the warning citation and his driver’s license and
registration, Schneider asked Lloyd if he could “ask” him a couple of questions. Lloyd
replied “yes.” Schneider stated that there was a lot of drug traffic on I-70 and asked
Lloyd if he had anything like that in his van. Lloyd replied he did not. Schneider then
asked if he could look in Lloyd’s van. Lloyd replied “no.” Schneider testified at the
suppression hearing that he had “received prior information reference to Mr. Lloyd
manufacturing and distributing methamphetamine.” Because of the “prior information”
he had received concerning Lloyd, Schneider believed he was justified in running his
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narcotics dog around the car, which he then did. When the dog alerted, Schneider
searched the van and found methamphetamine, marijuana, drug paraphernalia, and a
“blue money bag.” After searching the van, Schneider prepared affidavits in support of
applications to search Lloyd’s residence in Russell, Kansas, and a second residence in
Lorraine, Kansas, which warrants issued later the same day. An ensuing search of
Lloyd’s Russell residence disclosed nothing. The search of Lloyd’s Lorraine residence
disclosed certain items related to the manufacture of methamphetamine.
Schneider’s testimony at the suppression hearing held on October 11, 2000,
concerning the “prior information” about Lloyd which he had at the time he stopped
Lloyd driving his blue van east on I-70 in Russell County, Kansas, is summarized as
follows:
1. On December 17, 1999, he (Schneider) received a phone
call from the Ellsworth County Sheriff, one Tracey Ploutz,
wherein Ploutz advised him that he had talked to a
confidential informant who stated that one Steve Shute was
going to Lloyd’s house in Russell to purchase
methamphetamine.
2. In February, 2000, he learned that the Russell County
Sheriff, one John Fletcher, had received a phone call from one
Fred Deibes of the Corrections Department in Great Bend,
that a confidential informant had advised him that Lloyd
manufactured methamphetamine and had a large quantity of
ephedrine and money in his house and also had a quantity of
ephedrine stored across the Oklahoma border.
3. On March 5, 2000, he and an agent of the Kansas Bureau
of Investigation interviewed Steve Shute, who stated that
Lloyd runs the Last Chance Barbecue in Russell and that he
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has two Ford vans, one white and one blue. Shute also
advised him at the same time that Lloyd manufactured
methamphetamine with the anhydrous and lithium metal
process and that he had recently purchased between $3000
and $5000 worth of ephedrine in Oklahoma. Shute also
added that Lloyd had recently purchased a house in Lorraine,
Kansas, and had two persons who distributed one ounce
of methamphetamine for him weekly.
and 4. On March 24, 2000, he and another agent of the Kansas
Bureau of Investigation interviewed one Kenneth Peterson
who stated that Lloyd manufactured methamphetamine and
that he (Peterson) and Lloyd about three months before had
gone to Oklahoma where he (Peterson) purchased $6000
worth of ephedrine with Lloyd’s money. Peterson also stated
at that time he had seen Lloyd cook and manufacture
methamphetamine in Lloyd’s house and his barbecue trailer
and that Lloyd had recently purchased a second home in
Lorraine, Kansas. Peterson also advised them that Lloyd
often took his vans “out in the country” where he cooked his
methamphetamine. Finally, Peterson stated that Lloyd often
carried methamphetamine and cash in a “blue money bag.”
On appeal, counsel for Lloyd does not argue that Schneider’s initial stop of the van
Lloyd was driving was unlawful, or that after the narcotics dog alerted to the van,
Schneider did not have probable cause to search the van. Counsel does argue, however,
that the “continued detention” of Lloyd after Schneider had returned to Lloyd his driver’s
license and registration and given him the warning ticket was unlawful because it was not
based on any “objectively reasonable and articulable suspicion” that Lloyd was involved
in criminal activity which had occurred or was occurring.
The government, in turn, concedes that nothing occurring between Schneider and
Lloyd at the scene of the stopping indicated any past or present criminal conduct on the
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part of Lloyd, except for the traffic violation. However, the government does contend
that Schneider’s continued detention of Lloyd after he had returned Lloyd’s driver’s
license and registration to him and given him the warning citation was lawful since, based
on the “prior information” which Schneider possessed, he had an “objectively reasonable
and articulable suspicion” that Lloyd was engaged in drug trafficking. As indicated, the
district court on October 20, 2000, agreed with Lloyd’s counsel and suppressed the use at
trial of the evidence seized in Schneider’s search of the van. However, on May 17, 2001,
the district court vacated its earlier order and denied Lloyd’s motion to suppress the use at
trial of the evidence taken from Lloyd’s van. In changing its mind on the matter, the
district court spoke as follows:
“The court can only say that further review of the record has
convinced us that we earlier reached an incorrect decision.
We certainly regret this turn of events. Nevertheless, we
believe that it is necessary to reach the correct result, even if
the path to that decision is rocky.”
In United States v. McKissick, 204 F.3d 1282, 1296 (10th Cir. 2000) in discussing
our standard of review when reviewing a district court’s denial of a motion to suppress,
we spoke as follows:
When reviewing a district court’s denial of a 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 those findings are clearly erroneous. The credibility of
witnesses, the weight to be given evidence, and the reasonable
inferences drawn from the evidence fall within the province
of the district court. Keeping in mind that the burden is on the
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defendant to prove that the challenged seizure was illegal
under the Fourth Amendment, the ultimate determination of
reasonableness under the Fourth Amendment is a question of
law reviewable de novo.
The fact that Lloyd did not consent to a search of his van cannot “form any part of
the basis of reasonable suspicion.” United States v. Manuel, 992 F.2d 272, 274 (10th Cir.
1993). Absent consent, the scope and duration of a traffic stop may be expanded beyond
its initial purpose if, and only if, the police officer has “a particularized and objective
basis for suspecting the particular person stopped of criminal activity.” United States v.
Wood, 106 F.3d 942, 946 (10th Cir. 1997).
In United States v. Sokolow, 490 U.S. 1, 7 (1989) the Supreme Court was
concerned with whether there was “reasonable suspicion” to justify a Terry stop. In
connection with the quantum of evidence necessary to establish “reasonable suspicion,”
the Supreme Court spoke as follows:
The officer, of course, must be able to articulate
something more than an “inchoate and unparticularized
suspicion or ‘hunch’” [Terry v. Ohio, 392 U.S. 1, 27]. The
Fourth Amendment requires “some minimal level of objective
justification” for making the stop. That level of suspicion is
considerably less than proof of wrongdoing by a
preponderance of the evidence. We have held that probable
cause means “a fair probability that contraband or evidence of
a crime will be found,” and the level of suspicion required for
a Terry stop is obviously less demanding than for probable
cause. (Citations omitted.)
In accord with Sokolow, in United States v. Williams, 271 F.3d 1262, 1268 (10th
Cir. 2001) we spoke as follows:
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We consider it worth repeating that our analysis of whether an
investigative detention is supported by an objectively
reasonable suspicion of illegal activity turns on our review of
the totality of the circumstances. In doing so, we “judge the
officer’s conduct in light of common sense and ordinary
human experience,” and we accord deference to an officer’s
ability to distinguish between innocent and suspicious actions.
Reasonable suspicion, however, may not be derived from
inchoate suspicions and unparticularized hunches. (Citations
omitted.)
In Alabama v. White, 496 U.S. 325, 330 (1990) the Supreme Court commented on
the “reliability” aspect of information previously received by a police officer involved in
a traffic stop as follows:
Reasonable suspicion is a less demanding standard than
probable cause not only in the sense that reasonable suspicion
can be established with information that is different in
quantity or content than that required to establish probable
cause, but also in the sense that reasonable suspicion can arise
from information that is less reliable than that required to
show probable cause.
As above indicated, in the instant case Schneider’s “prior information” concerning
Lloyd was derived from four sources. In this connection the Eighth Circuit in United
States v. Goodson, 165 F.3d 610, 614 (8th Cir. 1999) in discussing “probable cause” (not
reasonable suspicion) for a search warrant spoke as follows:
We also note that even though the other two informants may
not have had a track record of reliability, their tips
corroborated the first informant’s tip and to some extent each
other’s tips, which also “render[s] their information enough to
support a finding of probable cause.” United States v.
Fulgham, 143 F.3d 399, 401 (8th Cir. 1998).
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In like fashion, in United States v. Le, 173 F.3d 1258, 1266 (10th Cir. 1999), a case
where the sufficiency of an affidavit upon which a search warrant was challenged, we
said:
The affidavit contained information provided by two different
informants whose stories were remarkably consistent.
“[C]onsistency between the reports of two independent
informants helps to validate both accounts.” United States v.
Schaefer, 87 F.3d 562, 566 (1st Cir. 1996); see also United
States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998) (holding
that the magistrate’s finding of probable cause was supported
by, among other things, the “reciprocally corroborative”
consistency in the information provided by two separate
informants); United States v. Pritchard, 745 F.2d 1112, 1121
(7th Cir. 1984) (stating that “[b]y telling consistent yet
independent stories, the informants provide ‘cross-
corroboration,’ and enhance the reliability of the application
as a whole” (citations omitted). Also, it was against the penal
interest of the informants to provide this type of information
to the police, a factor we have considered indicative of
reliability. See United States v. Sturmoski, 971 F.2d 452, 457
(10th Cir. 1992).
In concluding that Schneider had such “reasonable suspicion” that Lloyd was
engaged in an ongoing criminal activity as to justify his continued detention of Lloyd in
order that he could run his narcotics dog around Lloyd’s van, the district court spoke as
follows:
Deputy Schneider decided to run the drug dog around
the van because he had been involved in an investigation of
Mr. Lloyd prior to March 26, 2000, and had learned from
several sources that Mr. Lloyd was actively engaged in the
methamphetamine business. Deputy Schneider had received
the following information: (1) a telephone call from the
Ellsworth County Sheriff on December 17, 1999, indicating
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that a confidential informant had told him that Steve Shute
was going to Mr. Lloyd’s house in Russell, Kansas, and
purchasing methamphetamine; (2) a telephone call from Fred
Deibes who worked with the Kansas Department of
Corrections indicating that a confidential informant had told
him that Mr. Lloyd manufactured methamphetamine and had
a large quantity of ephedrine and money in his house as well
as a quantity of ephedrine stored in Oklahoma; (3)
information from Steve Shute on March 5, 2000, that Mr.
Lloyd (a) manufactures methamphetamine, (b) purchases
ephedrine in Oklahoma, (c) recently purchased a house in
Lorraine, (d) drives two Ford vans, a blue one and a white
one, (e) owns a business called the Last Chance Barbeque in
Russell, and (f) has two people who distribute one ounce of
methamphetamine weekly for him; and (4) information from
Kenneth Peterson on March 24, 2000, that Mr. Lloyd (a)
manufactured methamphetamine in his barbeque trailer, (b)
traveled with Peterson to Oklahoma three months ago to
purchase $6,000 of ephedrine, (c) recently purchased a house
in Lorraine, (d) drives his vans out in the country and to the
house in Lorraine and cooks the methamphetamine, and (e)
often transports methamphetamine and cash in a blue money
bag. Deputy Schneider also knew, based upon his training
and experience, that drug dealers carry concealed weapons,
drug money and contraband on their persons and in their
vehicles.
Without further belaboring the matter, we conclude, under the authorities above
cited, that the district court’s ruling that Schneider had such “reasonable suspicion” as
would justify Schneider’s continuing detention of Lloyd until he ran his narcotics dog
around the van, is supported by the record.
In this appeal, Lloyd also challenges the sufficiency of Schneider’s affidavits upon
which a magistrate judge issued search warrants authorizing a search of Lloyd’s two
residences. In those affidavits, Schneider, in addition to detailing the “prior information”
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which he had concerning Lloyd, also set forth all the facts and circumstances surrounding
his stop of Lloyd’s van on March 26, 2000, and the evidence found in the van on that
occasion. We agree with the district court that the affidavits were sufficient to meet the
“probable cause” requirement of the Fourth Amendment. Much of counsel’s argument is
based on the assumption that the search of Lloyd’s van was unlawful. Having held that
the search of the van was lawful, this then is not a case of “fruit from a poisonous tree.”
Wong Sun v. United States, 371 U.S. 471 (1963) is inapplicable.
Judgment affirmed.
Entered for the Court
Robert H. McWilliams
Senior Circuit Judge
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