United States v. Leslie Pollington ( 1996 )

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No. 96-1885
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Leslie William Pollington, III, *
*
Appellant. *
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Submitted: September 10, 1996
Filed: October 1, 1996
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Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN,
Circuit Judge.
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HENLEY, Senior Circuit Judge.
Leslie William Pollington, III appeals from a judgment of the
district court1 entered upon a conditional plea of guilty to possession
with the intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1). We affirm.
On March 29, 1995, after the fourth time Trooper Christopher Thompson
saw the tires of a motor home go over the interstate shoulder line, he
pulled the vehicle over. On approaching the vehicle, Thompson smelled the
strong odor of laundry detergent. The driver, Tim Tooley, told Thompson
that he had borrowed the
1
The Honorable Thomas M. Shanahan, United States District
Judge for the District of Nebraska.
motor home so that he and Pollington, who was the passenger, could take a
weekend trip from Michigan to Las Vegas. Tooley told Thompson that they
had not slept in the motor home, but had borrowed it because he and
Pollington each had only one car, and they did not want to leave their
wives without cars. While Tooley was in the patrol car, Thompson told
Tooley that contraband is sometimes found in borrowed or rented vehicles
and asked if any contraband was in the motor home. Tooley said no and
Thompson asked if he could search the vehicle. Tooley replied, "No
problem." On searching the motor home, Thompson found a package containing
marijuana. During a further search of the vehicle, troopers discovered
about 191 pounds of marijuana.
Pollington moved to suppress. After a suppression hearing, which
included the testimony of Thompson and a videotape of the traffic stop and
search, the district court denied Pollington's motion to suppress.
Pollington then entered a conditional guilty plea, reserving the right to
challenge the district court's denial of his suppression motion.
On appeal, Pollington raises three issues. All are without merit.
First, Pollington argues that the stop of the motor home was not supported
by probable cause. At the suppression hearing, Thompson testified that he
stopped the vehicle because it crossed the highway lines in violation of
Neb. Rev. Stat. § 60-6, 142, which prohibits driving on the shoulder of the
road. In Whren v. United States, 116 S. Ct. 1769, 1777 (1996), the Supreme
Court recently confirmed that where an officer has probable cause to
believe that a traffic violation has occurred, the stop of a vehicle is
reasonable under the Fourth Amendment. See also United States v. Lowe, 9
F.3d 43, 45 (8th Cir. 1993) ("[W]when an officer observes a traffic
offense--however minor--he has probable cause to stop the vehicle.")
(internal quotation omitted), cert. denied, 510 U.S. 1181 (1994); United
States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993) (lawful traffic stop
where officer saw car driving
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partially on shoulder of road).
Second, Pollington argues that the detention exceeded the scope of
the stop. At the suppression hearing, Thompson testified that he had
detained the occupants because he smelled laundry detergent, which he knew
was commonly used by drug traffickers to mask the smell of narcotics; did
not believe Tooley's story that he and Pollington had borrowed a gas-
guzzling motor home to take a weekend trip from Michigan to Las Vegas; and
observed that Tooley was nervous, avoided eye contact and shifted in his
seat. These factors clearly gave rise to reasonable suspicion to support
the detention of the motor home and its occupants. See United States v.
Bloomfield, 40 F.3d 910, 918-19 (8th Cir. 1994) (en banc), (detention
supported by reasonable suspicion where officer smelled strong masking odor
and saw a pager and the defendant "fidget[ing]"), cert. denied, 115 S. Ct.
1970 (1995).
Last, Pollington argues that Tooley's consent to search was not
voluntary. Given the totality of the circumstances, the district court did
not err in finding that Tooley's consent to search was voluntary. See
United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990) (listing
relevant factors in determination of voluntariness of consent to search).
Of special significance, we note that Tooley offered to open the motor
home's back door to facilitate Thompson's search. See United States v.
Gleason, 25 F.3d 605, 607 (8th Cir.) (consent to search could be inferred
from fact defendant facilitated trooper's search), cert. denied, 115 S. Ct.
283 (1994); United States v. Armstrong, 16 F.3d 289, 295 (8th Cir. 1994)
(consent voluntary where defendant cooperated in search). Contrary to
Pollington's suggestion on appeal, written consent to search is
unnecessary, Gleason, 25 F.3d at 607, and an officer need not inform an
individual that he can refuse consent to search, Armstrong, 16 F.3d at 295.
Accordingly, the judgment is affirmed.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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