United States v. Thomas Wright ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1334
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Thomas Neal Wright, *
*
Defendant - Appellant. *
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Submitted: October 16, 2007
Filed: January 7, 2008
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Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
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MURPHY, Circuit Judge.
Appellant Thomas Neal Wright appeals the district court's1 denial of his motion
to suppress 24.7 kilograms of cocaine and incriminating statements he made in the
course of a traffic stop. We affirm.
On June 2, 2005 Wright was driving a pickup eastbound on Interstate 80 in
Hamilton County, Nebraska when he noticed signs indicating that a state patrol
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
checkpoint with a drug dog was located past the next freeway exit. The signs were
placed approximately 600 feet west of the Phillips interchange which has an
eastbound exit ramp. The exit ramp accesses County Road B which turns into a gravel
road approximately 200 yards south of the interstate just past a KOA campground.
Other than at the campground there are no services or signs for services at the Phillips
interchange.
The state patrol had set up the checkpoint as a ruse designed to induce drug
traffickers to avoid it by leaving the highway. Troopers Jason Probasco and Bradley
Hand had arranged the checkpoint and had placed an unoccupied patrol car with
activated overhead lights at the underpass of the Phillips interchange. The troopers
waited in another patrol vehicle off the highway, near an abandoned gas station south
of the interstate and on the east side of County Road B. The spot at which they were
parked was approximately seventy five yards from the stop sign at the top of the
eastbound exit ramp. From their location the troopers watched for vehicles with out
of state license plates leaving the freeway and then made contact with those motorists
who committed traffic violations.
Wright left the freeway at the Phillips exit, and the troopers observed that he
failed to make a complete stop at the sign at the top of the exit ramp before turning
south onto County Road B and continuing past the KOA campground. Hand, who
was using binoculars, noticed that Wright's pickup had Nevada license plates, and the
officers found it unusual that an out of state vehicle would exit at that location and not
enter the campground. They stopped Wright's vehicle, and Probasco initiated
conversation with him. Hand followed to record the conversation because he had a
microphone set to the same frequency as their patrol camera. The ensuing
conversation was inaudible on the recording, however, because of background noise
from Wright's diesel engine and radio and the distance at which Hand was standing.
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Probasco noticed that Wright's hands were trembling "extremely bad [sic]"
while he searched for his vehicle registration and that his voice was quivering.
Probasco asked why Wright had exited the interstate, and he responded that he was
tired and looking for a place to rest. When asked why he had not pulled into the KOA
campground, Wright said that he did not have camping gear and did not see any
buildings. Wright was not able to find the vehicle registration.
At this point Probasco asked Wright to go to the patrol vehicle with him so that
he could issue a warning ticket for not stopping at the stop sign. While walking back
to the patrol vehicle, the troopers observed equipment in the bed of the pickup.
Wright told them he was hauling stage equipment from Las Vegas to the Twin Cities.
While Wright sat in the front of the patrol car, Probasco checked his driver's license,
criminal history, and vehicle registration. He asked Wright again about the equipment
he was transporting, and Wright replied that he was driving to Minneapolis to set up
a stage for a show. When asked again why he had taken this exit, Wright stated that
he had hoped to make it to Omaha but decided that he needed to rest.
Because Probasco had become suspicious that Wright was carrying drugs, he
told Hand to call for a drug dog. While Probasco wrote the warning ticket, he asked
Wright if there was any contraband in his vehicle. Wright denied having any drugs
or drug paraphernalia. When the trooper commented that law enforcement often uses
ruse checkpoints to detect criminal activities, Wright claimed that he had not seen the
drug checkpoint signs on the interstate. Since the microphone was not set to pick up
conversations in the front seat of the patrol car, their conversation was not audible on
the recording.
Probasco completed the warning ticket and returned Wright's driver's license.
As Wright was walking back to his pickup, Probasco asked him if he could ask a few
questions. Wright agreed. Probasco again asked if there were drugs in the pickup,
and Wright again denied having any. Probasco then requested permission to search
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his vehicle, and Wright consented. As soon as it was clear that they intended to search
the pickup on the spot, he withdrew his consent. Probasco then told him he would
have to stay at the scene until the drug dog arrived.
While they waited for the drug dog, Hand commented that motorists who exit
the freeway after a drug checkpoint sign are usually doing something illegal. He
commented that if Wright had a marijuana pipe or small amount of marijuana in the
pickup, it would be an infraction under Nebraska law similar to a speeding ticket.
Wright looked down, and Hand repeated that an infraction was basically like a
speeding ticket. He said that if Wright had anything, it would be better to tell the
officers. Wright responded that he had just done a couple lines of cocaine with a
rolled up dollar bill that was between his seat and the console. Hand found a dollar
bill with white residue in the pickup cab at the spot Wright told him to look. Wright
then informed the troopers that there was a white bindle in the cooler, and Hand
retrieved it.
Probasco put Wright in the patrol car and began to write a citation for
possession of drug paraphernalia. Hand had meanwhile contacted the dog handler to
tell him he was not needed because Wright had admitted to possession of drug
paraphernalia. The canine officer arrived anyway and deployed the drug dog who
alerted on the rear passenger side of Wright's pickup. Hand and George Scott, another
trooper who had come to the scene, searched the vehicle and found a brick of cocaine.
Wright was placed under arrest at this point but not advised of his Miranda rights.
While he and Probasco were waiting in the patrol car, Hand and Scott found a suitcase
in the rear seat of his pickup. Wright then told Probasco, "They found the rest of it.
That thing's full of cocaine."
On June 22, 2005 a federal grand jury returned a two count indictment charging
Wright with possession with intent to distribute 5 kilograms or more of a cocaine
substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1), and criminal forfeiture
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pursuant to 21 U.S.C. § 853. Wright moved to suppress the evidence seized after his
stop as well as his incriminating statements. An evidentiary hearing was held on
October 28, 2005 and continued on November 1, 2005. The court received additional
evidence on December 27, 2005.
The magistrate judge2 filed a report and recommendation recommending that
Wright's suppression motion be denied. Wright filed objections, arguing in part that
the magistrate judge had not addressed a videotape which showed that the troopers
could not have seen his vehicle at the stop sign. This video was made by Scott's patrol
vehicle as he drove up the exit ramp at the Phillips interchange, and Wright argued
that it showed that trees blocked the view of Probasco and Hand so they could not
have seen a vehicle fail to stop at the sign. The district court adopted the magistrate's
report and recommendation after making an additional factual finding that the
videotape did not support Wright's argument about what the video showed. Wright
then pled guilty to both counts of the indictment and was sentenced to 121 months in
prison followed by a five year term of supervised release. Wright now appeals the
denial of his motion to suppress.
The district court's order denying the motion to suppress is reviewed under two
standards: factual findings are examined for clear error and legal conclusions de
novo. United States v. Stevens, 439 F.3d 983, 987 (8th Cir. 2006). Wright challenges
the district court's factual determination that he committed a traffic violation, arguing
that the evidence presented at the suppression hearing undermined the troopers'
credibility and consequently there was insufficient evidence that he did not stop. He
contends that because he actually stopped at the stop sign the troopers lacked probable
cause, and his detention therefore violated the Fourth Amendment.
2
The Honorable David L. Piester, United States Magistrate Judge for the District
of Nebraska.
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To support his argument that his constitutional rights were violated Wright cites
City of Indianapolis v. Edmond, 531 U.S. 32 (2000), and United States v. Yousif, 308
F.3d 820 (8th Cir. 2002). Both decisions examined the constitutionality of drug
checkpoints, and in each case the checkpoint was found to have violated the Fourth
Amendment.
Like the instant case, the checkpoints in Edmond involved signs that were
intended to intercept motorists transporting illegal drugs, see 531 U.S. at 34–36, but
other aspects were different. At each checkpoint in Edmond the police stopped a
predetermined number of vehicles. Pursuant to a written set of procedures, an officer
would approach a car and ask for license and registration, look for signs of
impairment, and examine the interior of the car. A drug dog conducted a canine sniff
of every stopped car. If consent to search was not obtained and particularized
suspicion did not develop, the officer would let the motorist leave. Id. at 35. The
primary purpose of the checkpoints was to "uncover evidence of ordinary criminal
wrongdoing." Id. at 42. The Supreme Court held that the checkpoints violated the
Fourth Amendment stating:
The primary purpose of the Indianapolis narcotics checkpoints is in the
end to advance the "general interest in crime control." We decline to
suspend the usual requirement of individualized suspicion where the
police seek to employ a checkpoint primarily for the ordinary enterprise
of investigating crimes. We cannot sanction stops justified only by the
generalized and ever-present possibility that interrogation and inspection
may reveal that any given motorist has committed some crime.
Id. at 44 (internal citation omitted).
Signs indicating the presence of a drug checkpoint were also used as a ruse in
Yousif to induce motorists to exit the freeway. 308 F.3d at 823. All motorists who
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left the interstate after the posted signs were stopped at a drug interdiction checkpoint
located at the top of the exit ramp. The officers asked for a driver's license, vehicle
registration, and proof of insurance. They also recorded the license plate number and
asked drivers why they had exited the interstate. If illegal activity was perceived, the
officers questioned the driver more extensively. If the officers developed a reason to
believe that the vehicle contained contraband, they asked for consent to search. If
consent were denied but the officer still had a reasonable suspicion that the occupants
were involved in unlawful activity, a drug dog was deployed for a canine sniff. If the
dog did not alert and the officer had no other reason to hold the vehicle, the motorist
would be allowed to leave. Id. at 823–24. We held that this program violated the
Fourth Amendment "insofar as its primary purpose was the interdiction of drug
trafficking . . . and the officers . . . were under instructions to stop every vehicle" that
took the exit. Id. at 827. We noted that "while some drivers may have wanted to
avoid being caught for drug trafficking, many more took the exit for wholly innocent
reasons . . . . General profiles that fit large numbers of innocent people do not
establish reasonable suspicion." Id. at 827–28.
In two of our subsequent cases which had similar facts as those before us now,
no Fourth Amendment violation was found. In both cases signs on the freeway
indicated a checkpoint ahead even though none actually existed, and not every exiting
motorist was stopped. See United States v. Williams, 359 F.3d 1019 (8th Cir. 2004);
United States v. Martinez, 358 F.3d 1005 (8th Cir. 2004). In both of those cases a
ruse drug checkpoint was set up by placing signs warning of a drug checkpoint ahead
to induce motorists to exit the freeway before reaching the checkpoint. Williams, 359
F.3d at 1020; Martinez, 358 F.3d at 1006–07. Officers would then stop only those
exiting vehicles which committed a traffic violation. In holding that this practice did
not violate the Fourth Amendment we distinguished Edmond and Yousif:
Edmond and Yousif involved the use of actual checkpoints at which
motorists were stopped regardless of whether they had committed a
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traffic violation. Here, there was no checkpoint on the . . . exit, and
motorists who took the exit were not stopped unless they were observed
committing a traffic violation. Given this distinction, Edmond and
Yousif are not controlling.
Martinez, 358 F.3d at 1008–09; see also Williams, 359 F.3d at 1021.
Wright's case is like Williams and Martinez and different from Edmond and
Yousif. Here, no checkpoint actually existed, unlike in Edmond and Yousif, and the
troopers did not stop all vehicles or a predetermined number of them. Under the
checkpoint plan in this case, like in Williams and Martinez, troopers were only to stop
vehicles for which they had individualized suspicion of a traffic violation. In these
circumstances use of a ruse checkpoint did not violate Wright's constitutional rights.
Wright argues nevertheless that the traffic stop of his pickup was unreasonable.
Because a traffic stop is a seizure within the meaning of the Fourth Amendment, see
Delaware v. Prouse, 440 U.S. 648, 653 (1979), it must be reasonable to pass
constitutional muster, see Whren v. United States, 517 U.S. 806, 810 (1996). "[T]he
decision to stop an automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred." Whren, 517 U.S. at 810. "Any traffic
violation, however minor, provides probable cause for a traffic stop." United States
v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (en banc). An otherwise
constitutional traffic stop is not invalidated by the fact that it was "mere pretext for a
narcotics search." United States v. Williams, 429 F.3d 767, 771 (8th Cir. 2005), citing
Whren, 517 U.S. at 812–13. It is a violation of Nebraska law to fail to stop at a stop
sign. Neb. Rev. Stat. § 60-6,148; see Neb. Rev. Stat. § 60-667 (definition of a stop).
Wright argues that there was insufficient evidence to support the district court's
finding of a traffic violation and that the troopers lacked probable cause to stop him.
He contends that he produced evidence to negate any evidence of a violation.
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Specifically he argues that his witness Craig Sutton undermined the credibility of the
troopers, as did the video taken from Scott's patrol car and the failure to tape the traffic
violation or to record the subsequent conversations. The government argues that there
is sufficient evidence to support the district court's finding of a traffic violation. There
were two versions of the facts, and the district court chose to believe the troopers'
testimony; the court's credibility determinations require a high degree of deference.
At the evidentiary hearing the magistrate judge heard testimony from Hand,
Probasco, and Craig Sutton, a mechanic employed by Wright. The troopers both
testified that Wright signaled a right hand turn but failed to come to a complete stop
at the sign at the top of the exit ramp. Wright contends that the troopers' testimony
is not credible because the turn signal on his pickup did not work that evening. He
called Sutton to testify that the truck's right turn signal had been broken before June
2, 2005 and was still not working at the time of the evidentiary hearing. The
magistrate judge heard all the evidence and expressly stated that he did "not find the
testimony of Mr. Sutton credible"; he also noted that Sutton was employed by Wright
and stood to lose his job should Wright be convicted. Hand's admission that the back
right tail light of Wright's vehicle was damaged at the time of the stop did not address
the front right turn signal. As to Wright's contention that the troopers could not see
the stop sign from their vantage point, the district judge found that the video from
Scott's patrol car did not corroborate Wright's argument.
Wright also argues that the troopers' failure to videotape the traffic violation
and properly to record their conversations with Wright undermines the credibility of
their testimony. In accordance with their training, the troopers activated the videotape
recording when they initiated the traffic stop after witnessing a violation. The
government's evidence indicated that the troopers did make audio recordings of their
conversation with Wright; the fact that the recordings are of poor quality did not
require the district court to draw an adverse credibility finding.
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The lower court made credibility judgments based on the testimony and
presentation of the witnesses, and it believed the troopers' testimony which supported
the finding that Wright did not stop at the stop sign. We give great deference to a
lower court's credibility determinations because the "assessment of a witness's
credibility is the province of the trial court." United States v. Heath, 58 F.3d 1271,
1275 (8th Cir. 1995). We conclude that sufficient evidence existed to support the
finding that Wright did not come to a complete stop at the sign. The troopers
therefore had probable cause for the traffic stop.
For the foregoing reasons we affirm the judgment of the district court.
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