United States v. Gary Oh Ward ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3366
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Gary Oh Ward, *
*
Defendant-Appellant. *
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Submitted: February 14, 2007
Filed: April 26, 2007
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Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
After a conditional guilty plea, Gary Oh Ward was convicted of conspiracy to
distribute marijuana, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 846. Ward appeals
the district court's1 denial of his motion to suppress. This court affirms.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, adopting the report and recommendation of the Honorable David L.
Piester, United States Magistrate Judge for the District of Nebraska.
I.
Ward was pulled over by a Nebraska state trooper for following too close to
another vehicle. Before the cars stopped, the trooper learned that Ward's SUV was a
rental (based on the license plate). Approaching the SUV, the trooper saw a "Support
Our Troops" magnet on it and that Ward's U-Haul trailer had a newer padlock. Ward
was wearing a "DEA" ball cap and using a radar detector in a rental car. The trooper
smelled the scent of an air freshener.
Requesting Ward's license and rental agreement, the trooper asked Ward to
accompany him to the patrol car, to receive a warning ticket. There, the trooper
inquired about his travel plans and purpose, employment, residence, the DEA cap,
and the female passenger. Ward replied that he was moving the passenger, his
girlfriend, from California to Chicago; they both loaded the trailer (with her stuff);
and, he worked for the Department of Homeland Security. The trooper testified there
was some confusion over Ward's employment, as Ward initially displayed INS
credentials. According to the trooper, Ward was notably nervous.
Before completing the warning ticket, the trooper exited the patrol car to check
the vehicle identification number (VIN). The trooper then approached the passenger.
She denied being Ward's girlfriend (as he was married) or packing the U-Haul. She
said she was just along for a ride to Connecticut. A subsequent search of the trailer
revealed 540 pounds of marijuana.
Ward argues that the trooper lacked reasonable, articulable suspicion to check
the VIN or question the passenger. He contends his Fourth Amendment rights were
violated by an extended stop, and therefore the district court should have suppressed
the evidence from the search.
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II.
On appeal of a denial of a motion to suppress, this court reviews factual
findings for clear error and conclusions of law de novo. United States v. Durham,
470 F.3d 727, 733 (8th Cir. 2006). This court affirms unless the decision "is
unsupported by substantial evidence, based on an erroneous interpretation of
applicable law, or, based on the entire record, it is clear a mistake was made." United
States v. Harper, 466 F.3d 634, 643 (8th Cir. 2006), quoting United States v. Annis,
446 F.3d 852, 855 (8th Cir. 2006).
Ward concedes that the initial traffic violation provided probable cause to stop
his vehicle and conduct a reasonable investigation. See United States v. Sanchez,
417 F.3d 971, 974-75 (8th Cir. 2005). Ward asserts, however, that the trooper
unreasonably extended the investigation by approaching the vehicle to check the VIN
and question the passenger, because the trooper already had all the information needed
for a warning ticket.
Once an officer is legally authorized to stop the driver, the officer may conduct
an investigation "reasonably related in scope to the circumstances that justified the
interference in the first place." United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir.
1994) (en banc). This reasonable investigation includes asking for a driver's license
and registration, requesting the driver sit in the patrol car, and asking questions about
destination and purpose. Id.Contrary to Ward's assertion, a reasonable investigation also includes checking
the VIN. A "demand to inspect the VIN, like a demand to see license and registration
papers, is within the scope of police authority pursuant to a traffic violation stop."
New York v. Class, 475 U.S. 106, 115 (1986). See also id. at 120 (Powell, J.,
concurring) ("an officer making a lawful stop of a vehicle has the right and duty to
inspect the VIN").
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This court has consistently held that as part of a reasonable investigation, an
"officer may also question a vehicle's passengers to verify information provided by
the driver." Sanchez, 417 F.3d at 975. See United States v. Williams, 431 F.3d 296,
298 (8th Cir. 2005) (a reasonable investigation includes asking passengers about their
destination, route and purpose); United States v. Coney, 456 F.3d 850, 857 (8th Cir.
2006) (officers are entitled to question vehicle occupants to verify the driver's
answers); United States v. Linkous, 285 F.3d 716, 719 (8th Cir. 2002) (same); United
States v. Barragan, 379 F.3d 524, 529 (8th Cir. 2004) (same); United States v.
Brown, 345 F.3d 574, 578 (8th Cir. 2003) (same); United States v. Gregory, 302 F.3d
805, 809 (8th Cir. 2002) (same); United States v. Rodriguez-Arreola, 270 F.3d 611,
617 (8th Cir. 2001) (same); United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2000)
(same); United States v. Edmisten, 208 F.3d 693, 694 (8th Cir. 2000) (same); United
States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995) (same); United States v.
Cummins, 920 F.2d 498, 502 (8th Cir. 1990) (same).
Ward repeatedly asserts that the trooper was "dilatory" in writing the warning
ticket. He invokes United States v. Beck, 140 F.3d 1129, 1134-35 (8th Cir. 1998), for
the proposition that once the purposes of the initial traffic stop are completed, an
officer cannot further detain the vehicle or its occupants by asking questions. In Beck,
however, questioning continued after the purpose of the initial stop was completed
when the officer gave a verbal warning and told the driver he was free to leave. Id.The district court here made no finding that the trooper was dilatory and the trooper
had not finished writing the warning ticket before he checked the VIN and questioned
the passenger.
Ward ignores that the scope of a stop can be expanded. "If reasonably related
questions raise inconsistent answers . . . a trooper's suspicions may be raised so as to
enable him to expand the scope of the stop to ask additional, more intrusive,
questions." United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994). The Ramos
case allowed asking the passenger reasonably related questions, but found that if "no
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answers are inconsistent and no objective circumstances supply the trooper with
additional suspicion, the trooper should not expand the scope of the stop" by asking
unrelated questions. Id.If "the responses of the detainee and the circumstances give rise to suspicions
unrelated to the traffic offense, an officer may broaden his inquiry to satisfy those
suspicions." Johnson, 58 F.3d at 357. Here, the circumstances – the patriotic magnet
on a rental car, newer lock on the U-Haul trailer, DEA cap, inconsistent
INS/Homeland Security credentials, air freshener, and Ward's nervousness – support
suspicions unrelated to the traffic offense. See United States v. Pulliam, 265 F.3d
736, 740 (8th Cir. 2001).
This broadened inquiry must be reasonable. Bloomfield, 40 F.3d at 916.
"[T]he investigative methods employed should be the least intrusive means reasonably
available to verify or dispel the officer's suspicion in a short period of time." Id.Here, the trooper verified the VIN and questioned the passenger in less than five
minutes. In total, about twenty minutes elapsed while the trooper stopped the vehicle,
questioned Ward, checked the VIN, and questioned the passenger. The length of the
detention was reasonable and did not involve delay unnecessary to the legitimate
investigation of the trooper.
III.
The judgment of the district court is affirmed.
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