*1 1242 already noted that a full and fair
hearing alleged on Scrivner’s status as a America, UNITED STATES of Native ruling against American resulted in a Plaintiff-Appellant, being case, his claim. That we cannot v. alleged see how counsel’s deficiency of not raising that issue prejudice earlier could ALVAREZ, Jaime Defendant-Appellee. Scrivner. the ineffectiveness claim on fails. No. 95-4038.
VIII Appeals, States Court of Tenth Circuit. Finally, argues Scrivner the fed eral should have held an evi 18, Oct. dentiary hearing to determine whether his process rights were violated when the state trial court request denied his for a
continuance of sentencing hearing. If no disputed facts are and the issues can be resolved on the basis of the record and the
law, evidentiary no hearing required. See Young, 1518, (10th Steele v. 11 F.3d 1524 Cir.1993). disputed if Even issues of fact are raised, petitioner a habeas is entitled to a “ hearing in federal court only if he ‘did not receive a full and fair evidentiary hearing in court, a state either at the time of the trial or ” in a proceeding’ collateral resulted findings. rehable Saffle, Coleman 912 (10th 1217, Cir.) F.2d 1230 (quoting Town Sain, 293, 312, send v. 745, 372 U.S. 83 S.Ct. 756-57, 9 (1963), L.Ed.2d 770 overruled in part, Keeney v. Tamayo-Reyes, 1, 504 U.S. 5, 1715, 1717-18, S.Ct.
(1992)), denied, cert. (1990); 111 L.Ed.2d 834 see also Bre Reynolds, cheen v. 1362-63 — (10th Cir.1994), denied, cert. U.S.-, S.Ct. L.Ed.2d Our review shows the record was sufficient to resolve all the issues raised Scrivner.
The issue of whether Scrivner had constitu- right tional to a continuance prior to sentenc- ing legal was a one. No evidentiary hearing necessary.
Accordingly, the decision of the district court denying petition Scrivner’s for habeas relief is AFFIRMED.
BRORBY, Judge. Circuit appeal seek- brings this The United States grant- order of the district ing review suppress to evi- motion defendant’s ing the stop. have during seized dence § to U.S.C. pursuant jurisdiction and reverse.
BACKGROUND Patrol- Highway Utah April
On a U-Haul rental observed Craig man Gaines on traveling interstate northbound truck track, Officer began to overtake As he had plate sticker license noticed the Gaines Thereafter, signaled Gaines Officer expired. pull over. the vehicle driver of to the the driver’s up to walked Gaines Officer vehi- The driver side of the U-Haul.1 Alvarez, the offi- cle, asked Jaime defendant for the vehicle papers if he needed cer the U-Haul trooper provided the with and license. his driver’s and agreement rental was issued license driver’s Mr. Alvarez’s Massachusetts, agree- the rental the state name, he indicated and his ment bore and was California had been rented truck Boston, Massachusetts. taken to be ap- Mr. Alvarez testified Gaines Officer his initially, relaxed after but nervous peared trooper. Officer with contact this at Mr. Alvarez informed Gaines vehicle was stopped the he the reason Officer plates. Gaines expired to the step out of the vehicle asked The track. the back him to and led Mr. Alvarez where asked then officer carrying. Mr. cargo he was and what going Lubeek, States United Assistant C. Bruce companion his he and responded that Matheson, Jr., (Scott Attorney M. moving only and traveling Boston were briefs), Salt him on Attorney asked who Gaines clothes. their Officer Plaintiff-Appellant. Utah, City, Lake vehicle, and Mr. the passenger At girlfriend. explained she was Associates, & for Booker L. Booker Robert approximate- had lasted point, the encounter Defendant-Appel- Utah, for City, Lake Salt ly forty-five seconds. lee. out pointed plates expired When “[tjhat’s their Alvarez, responded, BRORBY, to Mr. and ANDERSON Before that he replied Gaines Officer McKAY, fault.” Circuit Senior Judges, and Circuit then Gaines instruct- right.” “exactly Judge. appeal. facts recited All on part of record as was video-recorded 1. The entire encounter a record cite accompanied by are not into evidence tape was admitted audio. recording. video-audio taken from designated been been and has before Mr. Alvarez to wait the back of the de ed erroneous review novo the spoke trooper pas- with the vehicle while determination of un- ultimate reasonableness senger. Officer Gaines testified der Fourth Amendment. United States passenger to check tioned the for inconsis- Little, (10th Cir.1994) *3 by provided tencies the information Mr. banc). (en appear any not Alvarez. It does such incon- constituting A stop routine traffic an during thirty- sistencies arose Officer Gaines’ investigative only detention is constitutional questioning passenger. second of the Officer by if supported a and reasonable articulable however, testify, did that Gaines while suspicion person engaged that the is seized tioning passenger, the the detected odor in activity. criminal States Lam United v. air of freshener. (10th bert, Cir.1995). 1064, 46 F.3d 1069 Gaines then returned to the back of specifically, More the of a reasonableness question again. truck to Mr. the He stop by first, asking must be evaluated inquired Mr. Alvarez carrying whether was justified “whether the officer’s was action truck, any weapons anything or in the second, inception,” its and ac [the “whether responded negatively. Mr. Alvarez reasonably in scope tion] was related to the Up point, to this the encounter had lasted justified circumstances which the interfer inception. less than two minutes from its Ohio, Terry place.” ence in the first v. 392 The officer then asked whether could 1, 19-20, 1868, 1878-79, U.S. 88 S.Ct. 20 truck, the back of search the and Mr. Alvarez (1968). L.Ed.2d 889 ultimately said “Go ahead.” The search re- in forming sulted seizure of the cocaine the Courts the con are view officer’s charges against basis for the Mr. Alvarez. through duct a filter of “common sense and The court suppressed district the evidence. ordinary experience,” human United States court initial questioning The concluded the of Melendez-Garcia, (10th 1046, 1052 v. 28 F.3d passenger permissi- Mr. Alvarez and the was Cir.1994) (citation omitted), light and in of ie., ble, reasonably it was related to the circumstances,” totality “the of the purposes stop. of the initial The con- Fernandez, (10th 874, States v. 18 F.3d 878 on, however, cluded that from this the Cir.1994). approach This is intended inquiries scope officer’s exceeded the second-guessing “avoid police unrealistic of justified inquiries by stop: the initial “Rather decisions,” Melendez-Garcia, officers’ 28 original up than follow on suspicion that (citation omitted), F.3d at 1052 and to accord ..., the vehicle was stolen [Officer Gaines’] appropriate ability deference to the of a investigation began to focus on the contents distinguish trained law enforcement officer to of the vehicle.” The district court deter- actions, suspicious between innocent and subsequent inquiry mined the line of was Lopez-Martinez, United States v. 25 F.3d only by reasonable, valid supported if it was (10th 1481, Cir.1994). 1484 suspicion articulable that Mr. Alvarez was parties dispute do not that Officer carrying by contraband. The facts cited initial of stop Gaines’ Mr. government: vehicle Mr. Alvarez’s statement he was driving justified expired was carrying only truck; to the clothes in U-Haul, nervousness; plates and license on the presence they of air nor fresh- do ener, reasonable, dispute a expired did not amount to plates supported articu- suspicion carrying lable the defendant suspicion reasonable the vehicle was stolen. Consequently, contraband. inquiry district court we focus our on whether the subsequent ruled Mr. Alvarez’s consent to subsequent officer’s actions to the were request the officer’s to search the vehicle was justified by suspicion the officer’s reasonable by illegal tainted preceding detention it activity. of unlawful See United v. and, therefore, suppressed. evidence (10th Dewitt, 1497, Cir.1991), 1502 denied, 1118, 1233, cert. 502 112 U.S. S.Ct. DISCUSSION (1992); United States Guzman, (10th 1512, 1519 Cir.1988) reviewing In suppress, motions to 864 we F.2d findings the trial court’s (citing Royer, factual unless Florida v. 498- 1324-25, time, question, if L.Ed.2d 229 same asked a second (1983)). would be so and ran not related would afoul Fourth Amendment. Such rule agree would, judgment, only in our be unneces- questioning of that the initial conclusion formalistic, sarily contrary to it would be relating cargo and plans to his travel very protections in embodied the Fourth initially permissible. Officer Gaines i.e., Amendment, the constitutionality concededly stopped U-Haul on the valid judged a search or is to be seizure refer- may suspicion been stolen. the vehicle reasonable. See Wilson v. ence to what is, cargo Inquiring plans as to travel — Arkansas, -, -, U.S. S.Ct. scope reasonably judgment, our related 1916, 131 L.Ed.2d *4 determining if a is because an vehicle stolen inquiries we the Because conclude officer’s response or incredulous individual’s confused justified by of Alvarez Mr. the officer’s inquiry rea provide to this could additional suspicion activity, reasonable of unlawful the suspect to the is stolen. Similar son vehicle by subsequent given consent to search Mr. ly, questioning passenger officer’s of the the could not have been tainted. reasonably scope in to circum was related stop is, surrounding the initial because stances The order of the district court there- fore, responses REVERSED, conflicting between the driver and is the case RE- to passenger support proceedings. could have lent the MANDED for further suspicion the vehicle was stolen. McKAY, Judge, concurring: Circuit therefore, question, is The critical join I judgment in the court’s but for into inquiry the whether the officer’s second slightly agree different reasons. I with the by justified of the was the contents vehicle approach examining trial of when the suspicion unlawful ac reasonable of officer’s police investiga- officer decided to shift his tivity. the court concluded the While initial, justifiable stop drug a tion from the to cargo in inquiry as to fact so supported investigation. The latter must be related, inqui the the court deemed identical by giving to a articulable facts rise reason- time, ry, imper- to be when asked a second suspicion activity. able of criminal The criti- exclusively finding directed at missibly and in point cal this case is the decision transporting Mr. Alvarez was out whether possession trigger- was in those officer of this distinc contraband. cannot ing stage If facts. were at .the tion. adopted by magistrate judge or trial passenger While the record reveals the court, I to sustain the trial court’s would vote gave responses same Gaines’ decision. Alvarez, no inquiry did Mr. there is evi- as Ill) (R., videotape A of the Vol. review this. had dence Mr. knew however, question, that the reveals without actually possession in of a been sto- necessary had the articulable facts officer (which not), and had he len vehicle he was turned a search for before his efforts companion further doubted whether told Although case, drags. strong a close had, story might well the same have freshener, coupled the fact smell of air plans, changed of their travel his account large merely to that a truck was rented This, turn, cargo, their or both. in reason- clothes, provides a sufficient basis transport suspicions ably could fueled officer’s investigation. for The officer had additional facts, These the vehicle was stolen. possession of facts he asked to those before length coupled extremely brief of Additionally, the video- search the vehicle. took, inquiries us to conclude time these lead telling tape officer of the arrest reveals the inquiry the officer’s second into the nature of officer that he smelled air freshener another justified by cargo officer’s rea- initially approached the driver when he suspicion activity. sonable of unlawful Were Any finding contrary track. would, effect, otherwise, we to we be hold be erroneous. the trial would holding question, rule adopting a when alone, once, may Standing air suffi- reasonably be related freshener asked initial, drags. justify a for purposes stop, an lawful whereas cient to reasonable search of However, we have repeatedly held that air coupled
freshener with other indicia crimi- activity supports nal inqui- reasonable brief ry purposes Ohio, Terry
fact that air may freshener be used innocent- ly does not mean it cannot be used under suspicious
other circumstances. reaffirming my While police view that offi- cers must articulate reasons independent from the basis for the initial they may pursue before an investigation for drugs, I requirement believe such a sat- isfied in Despite this case. conclusion, I
believe that the court’s discussion about the
focus of questions the officer’s is not faithful duty
to our to defer to findings *5 trial I persuaded court. am tion as to when investigation and if an shifts
from reason for a to a drug investigation within falls the discretion
of the trial court. I do believe is an it issue of law for an appellate court to decide. We should such finding unless clear- ly erroneous. I am unable to conclude the trial court was erroneous when it
concluded the officer shifted his focus to drug investigation. Because the officer’s inquiry into the contents of the truck includ- question ed a weapons, about focus
investigation was clearly not related to whether the vehicle was stolen. SPAIN,
David M. Petitioner, Louis PODREBARAC, County Haskell At torney, Osbon, Carl County Haskell Sheriff, Stovall, Carla Attorney Kansas General, and the Kansas, State Re spondents.
No. 95-3319. United Appeals, Court of
Tenth Circuit. Gottlieb, David J. University of Kansas Oct. Law, School of Kansas Project, Defender Lawrence, KS, Wurtz, Ronald E. Capital De- Coordinator, KS,
fense Topeka, petition- er.