UNITED STATES of America, Plaintiff-Appellee, v. Charles Gilbert HARDY and Buddy Huffman, Jr., Defendants-Appellants.
No. 87-8855
United States Court of Appeals, Eleventh Circuit.
Sept. 19, 1988.
Rehearing and Rehearing En Banc Denied Nov. 4, 1988.
Cothran‘s second argument that the district court‘s challenged condition of probation could have been more narrowly drawn to foster his rehabilitation and protect the public is also unpersuasive. The government stated at oral argument that Fulton County is but one of 46 counties within the Northern District of Georgia. The defendant concedes that all of the criminal activity for which he was convicted took place in Fulton County. We simply fail to see an abuse of discretion.
Defendant‘s observation that 200 yards east of the Fulton County-DeKalb County border lies a housing project known for its high incidence of criminal activity and often frequented by the defendant prior to his arrest and conviction merely suggests that the district court‘s challenged condition of probation could have been drawn wider to achieve its rehabilitative and public safety goals. Furthermore, the statements that “Mr. Cothran can easily commit similar crimes in almost any location” (Cothran Br. at 18) and “Removing Appellant from Fulton County will not prevent him from committing similar offenses in the future” (Cothran Br. at 19) do not support the conclusion that a more narrowly drawn condition of probation could have been imposed by the district court. Instead, such remarks merely invite the court to question whether Mr. Cothran‘s present sentence is too lenient.
The court rejects defendant‘s argument that the district court abused its discretion in requiring that he stay out of Fulton County, Georgia for the first two years of his probation unless he received the permission of his probation officer. Accordingly, the decision of the district court is AFFIRMED.
John Nuckolls, Atlanta, Ga., for defendants-appellants.
Nicolette S. Templer, Julie E. Carnes, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.
Before HILL and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
Appellants Charles Gilbert Hardy and Buddy Huffman were each indicted on one
I.
On the evening of January 30, 1987, Trooper Michael Ralston of the Georgia State Patrol was investigating an accident on Interstate Highway 75 in northwestern Georgia when he observed a speeding northbound automobile. After completing his investigation of the accident, Ralston pursued the speeding car and eventually overtook a Lincoln Town Car that was passing several other vehicles. Ralston determined by use of radar that the Town Car was traveling at 67 miles per hour in a zone with a speed limit of 55 miles per hour. At approximately 8:57 p.m., Ralston turned on the blue light of his patrol car and pulled the Town Car to the side of the road.
Ralston asked the driver of the Town Car (Huffman) to produce a driver‘s license and vehicle registration. Huffman was unable to provide a driver‘s license or any other form of identification. Huffman told Ralston that he had lost his wallet and driver‘s license while on vacation in Florida. Huffman further said that he and the passenger of the car (Hardy) had spent a couple of weeks in Fort Myers, Florida, that they had been fishing, and that they had stayed with friends in Fort Myers. Huffman advised
Ralston then approached Hardy for the vehicle registration, which Hardy provided. The car was registered and titled to Hardy‘s wife Karen, of Elkhart, Indiana. In response to Ralston‘s questions, Hardy stated that the two had been to Fort Myers for four days and that they had stayed in a trailer owned by Hardy.1 Hardy also told Ralston that he knew Huffman only as “Buddy” and did not know Huffman‘s surname.
The initial questioning of Huffman and Hardy lasted approximately fifteen minutes. Ralston returned to his patrol car and ran a computer check to determine whether Huffman‘s driver‘s license was valid and whether Huffman was wanted for any crimes. After approximately ten minutes, Ralston learned that Huffman possessed a valid license and was not wanted. Ralston nonetheless remained suspicious about the men, due to their inability to identify each other‘s surnames, the inconsistencies between their accounts of the fishing vacation, and Huffman‘s lack of identification. As he exited his patrol car, Ralston activated a video camera mounted on his dashboard.
Ralston gave Huffman a warning for the speeding offense and returned the vehicle registration to Hardy. Ralston asked Hardy whether he would consent to a search of the automobile. Hardy initially acceded to this request but withdrew his permission after reading a printed consent form provided by Ralston. Ralston next approached Huffman for consent to search the vehicle. Huffman seemed willing to give his permission to search the car, or at least his own suitcase in the trunk.2 After further discussion, however, Ralston concluded that Huffman lacked authority to grant consent to search over Hardy‘s objection. His suspicions not dispelled, Ralston informed the men that he was detaining them on the highway until he could obtain a narcotics dog to “sniff” the car and run a more extensive computer check on persons wanted for drug offenses through a Drug Enforcement Administration clearinghouse.
Ralston radioed the Sheriff‘s Department of Murray County, Georgia, to request a narcotics dog. Sergeant Peggy Cloer, the dispatcher, punched a time card indicating that the call was received at 9:34 p.m. Cloer called Leroy Green, the handler of the narcotics dog, who was attending a high school basketball game 20 to 30 miles from where Huffman and Hardy were being detained. Green left immediately and, after retrieving the most accessible trained dog, drove to the site of the stop. He radioed the Sheriff‘s Department upon his arrival at 10:11 p.m. Cloer again acknowledged the communication by punching a time card.
II.
We first consider whether Ralston was justified in stopping the Town Car for speeding.3 Appellants argue that Ralston‘s traffic stop was a mere pretext for the investigation, without reasonable suspicion, of narcotics offenses. As we have stated numerous times, the proper inquiry for determining whether a stop is pretextual is “whether a reasonable officer would have made the seizure in the absence of illegitimate motivation.” United States v. Smith, 799 F.2d 704, 708 (11th Cir.1986); accord United States v. Bates, 840 F.2d 858, 860, 1988 WL 18,329 (11th Cir.1988); United States v. Miller, 821 F.2d 546, 549 (11th Cir.1987).4
There is no doubt that when Ralston pulled the Town Car to the side of the road, he had probable cause to believe that the driver of the vehicle had violated a Georgia traffic law. To support their claim that the stop was nonetheless pretextual, appellants place chief reliance on Trooper Ralston‘s participation in “Operation Nighthawk,” a program involving the deployment of Georgia state troopers along interstate highways to interdict persons transporting narcotics from Florida to northeastern metropolitan areas. At the suppression hearing, appellants introduced a memorandum by the Commissioner of the Georgia State Patrol stating that state troopers involved in Operation Nighthawk would be used for “specifically targeting narcotics ‘mules’ traveling through Georgia to and from Florida,” would be deployed “during peak drug traffic hours,” and would “concentrate on northbound traffic, [remaining] on the interstate as much as possible.” According to appellants, this memorandum proves that the Georgia State Patrol largely abandoned its role of enforcing traffic laws and converted to a drug investigation force. The memorandum states, for example, that “Nighthawk” patrols will not investigate accidents, unless a major collision on an interstate highway requires their assistance.”5
Ralston‘s testimony established that his decision to stop the Town Car was made as part of a routine traffic investigation. Ralston had not spent the day lying in wait for northbound cars from Florida. Cf. United States v. Miller, 821 F.2d at 547 (state trooper parked perpendicular to northbound lanes, with headlights illuminating occupants of passing vehicles). Ralston left the State Patrol post at 8:00 p.m. to investigate a traffic incident—a duty that, indeed, was incompatible with the provisions of Operation Nighthawk. He decided to pursue the Town Car only after he observed it speeding. He engaged his blue light after he saw the Town Car pass numerous other vehicles and after he determined, by reference to his radar unit, that the Town Car was exceeding the speed limit. A “drug courier profile” played no role in this calculus. Until the Town Car stopped, Ralston did not know the state in which the car was registered or the sex and age of the occupants. Cf. United States v. Smith, 799 F.2d at 706 (state trooper decided to pursue vehicle only after he observed that car was occupied by two young males). We therefore agree with the magistrate that “there is no credible evidence that the stop of the defendants’ car was pretextual.”
III.
At approximately 9:25 p.m., Ralston gave Huffman a warning for the speeding offense, ending the investigation of the traffic violation. The next few minutes were occupied by Ralston‘s attempt to secure consent to search the car from either Hardy or Huffman, by Hardy‘s initial grant and subsequent withdrawal of consent, and by consultation between the two appellants. Upon concluding that consent was not forthcoming, Ralston informed the appellants at approximately 9:34 p.m. that he would detain them pending the arrival of a narcotics dog. In our view, an investigative “stop” of appellants began at 9:34 p.m.7 We address whether Ralston was justified at that point in detaining appellants.
This is not a “drug courier profile” case. In making the decision to detain appellants, Ralston did not rely solely on “personal characteristics shared by drug couriers and the public at large, ... without any indication that those [characteristics describe persons] predominantly, or even mainly, engaged in an ongoing crime.” United States v. Sokolow, 831 F.2d 1413, 1420 (9th Cir.1987), cert. granted, ___ U.S. ___, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988).8 True, Ralston knew that Huffman and Hardy were males of apparently different ages and “lifestyles” traveling north from Florida, but he also knew a great deal more than that. He knew that Huffman claimed that the two had taken a two-week vacation and had stayed with friends whereas Hardy said that they had been in Fort Myers for only four days and had stayed in Hardy‘s trailer. He also knew that neither Huffman nor Hardy knew the other‘s last name, a circumstance that quite reasonably raised in Ralston‘s mind a suspicion that the two men had not taken a vacation in Florida but had come together for a brief, illegal business transaction.9 Finally, Ralston knew that Huffman was unable to give a satisfactory account of Hardy‘s line of work. The videotape reveals that Ralston asked Huffman about Hardy‘s occupation immediately after giving Huffman the warning ticket. Huffman replied that Hardy was retired, or that he “had money,” or that he owned a bar, or that he ran a factory. For two friends who supposedly had taken a fishing trip to Florida together, Hardy and Huffman knew remarkably little about each other. The gaps and inconsistencies observed by Ralston created a reasonable suspicion justifying the investigative stop.
IV.
We consider finally whether the investigative detention of appellants was sufficiently limited in scope and duration to remain within the bounds permitted by Terry v. Ohio and not ripen into a full-scale arrest unsupported by probable cause. Consideration of this issue requires reference to a line of Supreme Court cases culminating in United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), and to our own decision in United States v. Espinosa-Guerra, 805 F.2d 1502
Sharpe teaches that in distinguishing a true investigative stop from a de facto arrest, we must not adhere to “rigid time limitations” or “bright line rules,” 470 U.S. at 685, 105 S.Ct. at 1575, but must use “common sense and ordinary human experience.” Id.; accord United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983) (declining to adopt “outside time limitation” for permissible Terry stop). Several issues and circumstances are deemed relevant to the analysis, including the law enforcement purposes served by the detention, the diligence with which the police pursue the investigation, the scope and intrusiveness of the detention, and the duration of the detention. See Sharpe, 470 U.S. at 685-86, 105 S.Ct. at 1575; Espinosa-Guerra, 805 F.2d at 1510; see also United States v. Alpert, 816 F.2d 958, 964 (4th Cir.1987) (relying on similar list of factors).
Turning first to the law enforcement purposes served by the detention of appellants, the most important factor is whether the police detained appellants to pursue a method of investigation that was likely to confirm or dispel their suspicions quickly, and with a minimum of interference. See Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575. A Terry stop is justified to give the police an opportunity to engage in brief and non-intrusive investigation techniques, such as noncustodial questioning of the detained person. See id. (suspect was detained for 20 minutes so he could be questioned by more experienced drug enforcement agent). A Terry stop cannot be used as the basis of a “full search” that would normally be warranted only by the existence of probable cause, consent, or a valid arrest. See United States v. Place, 462 U.S. at 706, 103 S.Ct. at 2644; Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (plurality opinion). Nor may the police use an investigative stop to subject a suspect to custodial interrogation that would ordinarily require formal arrest and Miranda warnings. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).
The canine sniff ordered in this case is the kind of brief, minimally intrusive investigation technique that may justify a Terry stop. As the Supreme Court noted in Place, a canine sniff does not require the opening of luggage and does not reveal intimate but noncontraband items to public view. “[T]he manner in which information is obtained through this investigative technique is much less intrusive than a typical search.” Place, 462 U.S. at 707, 103 S.Ct. at 2644; see also Florida v. Royer, 460 U.S. at 505-06, 103 S.Ct. at 1328-29 (suggesting that police questioning of suspect may not be justified under circumstances where canine sniff would confirm or dispel suspicions). Nor does a canine sniff involve the time-consuming disassembly of luggage or an automobile frequently required in a thorough search for contraband.10
The second factor in the Sharpe calculus, the diligence of the police in pursuing the
We consider next the actual scope and intensity of the intrusion. Although appellants have attempted to portray the conditions of their detention as virtually the equivalent of custodial arrest, the videotape establishes that this was not the case.11 Appellants were not removed to an office or a police station, a factor that the Supreme Court and this court have found significant in distinguishing Terry stops from custodial arrests. See Florida v. Royer, 460 U.S. at 502-03, 103 S.Ct. at 1326-27; Dunaway v. New York, 442 U.S. at 212, 99 S.Ct. at 2256; United States v. Espinosa-Guerra, 805 F.2d at 1509; United States v. Berry, 670 F.2d 583, 602 (5th Cir. Unit B 1982) (en banc). Ralston did not question the appellants during the waiting period, nor did he place them in the back of the patrol car or insist that they remain outside.11 Hardy and Huffman spent the entire period between Ralston‘s radio call and the arrival of the narcotics dog waiting in their own car, and Ralston did not remove the keys.12 The videotape does not establish conclusively whether appellants ran the engine and heat in their car, but they were certainly more comfortable than they would have been had Ralston detained them in the police car or kept them out in the cold. Appellants were also able to speak with each other freely and privately, a liberty that would have been absent had they been under de facto arrest.
Appellants urge that Ralston‘s refusal to allow them to wait in the nearest restaurant off the highway until the dog arrived was unreasonable and indicates that the detention was intrusive. We disagree. Appellants might have escaped had Ralston permitted them to drive to the restaurant in their own car. On the other hand, had Ralston driven them to a restaurant in his
Finally, we address the length of the detention. Even after Sharpe, the duration of the stop remains an important factor, see Sharpe, 470 U.S. at 685, 686, 105 S.Ct. at 1575, and we bear in mind the Supreme Court‘s admonition prior to Sharpe that 90 minutes is probably too long for a Terry stop. See Place, 462 U.S. at 709, 103 S.Ct. at 2645 (“The length of the detention alone precludes the conclusion that the seizure was reasonable in the absence of probable cause“). The investigative stop in this case lasted approximately fifty minutes, from about 9:34 p.m., when Ralston informed appellants that they would be detained for a narcotics sniff, until about 10:25 p.m., when the narcotics dog alerted to the presence of drugs in the trunk.13
We confess to some unease on encountering a Terry stop lasting as long as fifty minutes. Cf. United States v. Borys, 766 F.2d at 313 (75-minute detention was “at the outer bounds of the Constitution“); American Law Institute, Model Code of Pre-Arraignment Procedure § 110.2(1) (1975) (suggesting twenty minutes as maximum duration for Terry stop). On the facts of this case, however, we cannot say the length of the stop, by itself, invalidated the detention. The duration of the stop is, in fact, the only significantly troubling circumstance in this case. In view of other aspects to the stop demonstrating that the police acted with propriety, particularly Ralston‘s circumspection in avoiding any questioning of appellants during the waiting period14 and the expedition with which the police arranged for a narcotics dog, the doubts raised by the length of the detention are not sufficient for us to find that the stop violated the fourth amendment.
This case is less troubling than United States v. Alpert, 816 F.2d 958 (4th Cir.1987), which also involved a fifty-minute detention.15 In Alpert, the police removed the suspect‘s luggage from Charlotte Airport for a canine sniff at the police academy fifteen minutes away, even though they had been conducting surveillance of passengers arriving in Charlotte from Miami and could well have anticipated that they would have to detain a passenger‘s luggage. Trooper Ralston could not have known in advance precisely where or when he would encounter interstate highway drivers alerting his suspicions to narcotics trafficking, and the time spent in summoning a narcotics dog is more easily justified in this case. We therefore hold that the investigative detention of appellants did not exceed the permissible scope of a Terry stop.
Accordingly, the judgments of conviction are AFFIRMED.
I concur in the result reached by the majority, but I do not fully agree with everything which is intimated by the majority in Part II of its opinion. Whether “Operation Nighthawk” was in effect or influenced Trooper Ralston has no bearing on this case. Ralston observed the speeding Town Car and made an entirely legal and constitutional stop because of its violation of a Georgia traffic law. Just because an officer is pleased that a suspicious car violates traffic laws so that a stop is justified does not make the stop unconstitutional. One who violates traffic laws is not, because he appears to be a drug courier, immunized from arrest.1
Moreover, if Georgia wants to use its highway patrol for no other purpose than to apprehend drug couriers, that is all right as long as it is done constitutionally. As noted in footnote 6 of the majority opinion, state troopers “shall ... investigate violations of the criminal laws of this state.”
I agree with the sentence on page 17 of the majority opinion that the duration of the stop is the only troubling circumstance in this case. However, as the majority explains, in view of the other aspects of the stop demonstrating that the police acted with propriety, the duration of the stop alone does not violate the Constitution.