United States v. Oliver

association, us, preclude that: Roberts v. record before we conclude that Okla- Jaycees, 468 U.S. homa’s current election statutes are not (1984); S.Ct. 82 L.Ed.2d narrowly tailored to advance a compelling inclusion of an per ] unwanted “foree[ state interest. Because Oklahoma’s semi- in group,” Boy son Scouts America primary closed scheme does not survive Dale, 640, 648, 120 2446, 147 S.Ct. scrutiny, our strict we REVERSE the dis- (2000). By L.Ed.2d 554 finding protection trict court’s denial of request the LPO’s against poaching parties’ of other voters to permanent injunction for a and REMAND issue, justify regulations at the district proceedings for consistent with opin- this effectively court would add a new associa ion. right point tional that has to this been absent from constitutional discussion-the

ability group of a to harness and control opportunities

the associational of its mem

bers. may assuredly

Parties guard their asso- rights against

ciational forced inclusion of see, Jones; people, e.g., unwanted such America, UNITED STATES of readily option is available under the LPO’s Plaintiff-Appellant, alternatives, proposed parties may open choose not to primary their elections parties to members of other party- under a OLIVER, Arthur Alvin Defendant- option open primary scheme. We cannot Appellee. conclude, however, that the associational rights asserted the LPO in this case are No. 02-4187. by any counterbalanced associational of Appeals, States Court

rights parties seeking to restrict Tenth Circuit. opportunities associational regis- their tered members. April 2004.

Moreover, any concern that Republi-

can parties and Democratic might have for

losing voters to the primary LPO elections

overlooks the countervailing consideration allowing Oklahoma’s voters additional in primary voting promotes

choices rights

associational of the individual voters parties.

within those In regard,

allow the LPO to registered invite voters parties

of other participate pri- in their

maries not advances the associational LPO,

interests of the members of the but

it also allows voters the benefit of choosing primary.

Ill

Absent a politi- clearer demonstration of instability

cal than present the one Lee,

Michael S. Assistant United States (Paul Attorney Warner, M. United States Attorney, and Diana Hagen, Assistant briefs), Attorney, on the Salt UT, City, Lake for Plaintiff-Appellant. (Loni DeLand, Michael R. Sikora F. brief), him UT, on the City, Salt Lake Defendant-Appellee. LUCERO, HARTZ, Before and McCONNELL, Judges. Circuit HARTZ, Judge. Circuit government appeals the district grant court’s of Defendant Arthur Alvin Oliver’s motion to suppress evidence seized stop. a traffic juris- We exercise diction § under 18 U.S.C. 3731 and re- verse.

I. BACKGROUND On the afternoon of October Sergeant Ryan Bauer of the High- Utah way Patrol patrolling Interstate 15 Utah, County, Beaver when he observed blue Ford exceeding driven Defendant speed limit. He turned on his emer- gency lights pulled the car over for speeding. The activation of lights trig- gered vehicle’s audio/video safety for his and drew firearm. fear equipment, which recorded the events, Eventually, audio although put Defendant subsequent to en- equipment By failed component of and left car. passenger’s seat gage until later time the traffic had lasted about minutes. two-and-a-half occupant. sole Defendant was car’s pas- from the Sergeant approached Bauer outside, in- Once Defendant was side, why he senger informed Defendant him to the front of go structed for his li- stopped, had been down, vehicle, around, put turn kneel pro- registration. Defendant cense and his head. Defendant his hands behind explained that duced a driver’s license and backup, complied. Bauer then called for asked to the car rented. When Bauer was intending posi- to Defendant in that keep n agreement, see the rental Defendant (At this tion until more officers arrived. to it. glove box retrieve the of re- point portion the the audio cylindrical glove Bauer in the saw box cording engaged.) long, approximately six inches package ap- was he kneeling, While Defendant thin, wrapped paper partial in brown with extremely peared to Bauer to be nervous Bauer, a ly 10-year clear veteran tape, agitated. repeatedly low- and Defendant Highway the' Patrol who been involved ered his hands from his head and moved approximately drug-interdiction in waistband, despite his them towards years, in six testified previous cases the Af- Bauer’s numerous orders to move. experience training that based ón hiS and in position, ter about six minutes De- packaging appeared the consistent officer, up, approached fendant stood the inter way drugs transported the get the told him he would not back on highways. He that he had state stated and “was to ground, just going that Bauer anything like that wrapped “never seen App. kill him.” Aplt.’s have to shoot and masking drugs wrapped that was not said, just going “I am to at 91. Defendant Aplt.’s at 100. tape.” App. away,” began doing id. at and so. walk no- Defendant could see that Bauer had spray attempt Bauer used to pepper push the He to package. appeared ticed But after being sprayed Defendant. glove into box and package farther the twice, highway ran across Defendant papers.' then underneath some Bauer Backup ar- to the median. officers then package. what in the Defendant was rived and medi- arrested Defendant answer, Defendant his' demean- did but arrest, can be Following an. Bauer “completely changed.” began shak- or He recording re- heard the audio/video tried to ing pale. again and turned He officer, marking to a “I don’t know fellow push package glove down into the box. package is.” what was, what package Asked once more Defendant, car, for a paused Defendant few seconds and and package his “fruit.” replied that it was transported County were Beaver pack- At the Sheriffs Office. station the package. Bauer twice asked see the subjected age by drug- to a sniff test Instead, reply. Defendant did not he took dog, presence detection who alerted box, glove clutched it package from drugs. first obtaining Without search hands, chest, to his covered with his warrant, opened one of the Bauer end ignored ahead. He straight stared a field test on its performed drop Bauer’s directions to repeated test engine, contents. The indicated package, shut off the and leave the began methamphetamine. he vehicle. Bauer testified that contained Cir.1995). possession question Defendant was indicted “The ultimate a mixture or grams or more of sub- whether a search and seizure was reason- methamphetamine, in containing vi- stance able under the Fourth Amendment is a 841(a)(1), § of 21 and for olation U.S.C. question of law that we review de novo.” using carrying or a firearm relation to a (internal omitted). Id. marks crime, in drug violation of trafficking 18 We address turn district court’s 924(c). (The § appeal record on U.S.C. rulings that the officer violated the Fourth when, how, does not indicate where the by Amendment questioning Defendant found.) firearm was He moved to sup- during about the package the traffic stop press methamphetamine discovered opening at the during arguing that stop, the traffic Bauer station without a warrant. inquire lacked reasonable (He glove about the box. A. Questioning during the argued drawing also firearm argument Defendant’s sole with re out ordering Defendant of the car and spect to his detention the traffic ground, effectively onto arrest- stop is that Sergeant cause, him ed without but he regarding in glove the the box press argument on appeal.) does violated the Fourth Amendment. He con Following hearing at which Bauer tends that all the officer’s observations testified, magistrate judge the recom- following questions, along those with the mended that motion grant- Defendant’s be car, drugs seized from the resulted from obviously ed because the “was not this inquiry unlawful and therefore must contraband,” 45; App. at Aplt.’s Bauer be suppressed as “fruit of the poisonous lacked reasonable to ask about States, Wong tree.” United Sun v. 371 (the contents magistrate judge its dis- 471, 487-88, 407, U.S. 83 S.Ct. 9 L.Ed.2d alleged experience counted the officer’s (1963). 441 not challenge He does such the packages particu- because “the initial experience stop ordering lars of the were not or Bauer’s him out identified of equated stop,” Aplt’s to the facts this him the car and requiring kneel at the 52); App. at and Defendant’s reaction to side of backup the road until officers ar questioning was therefore fruit of rived. We are thus confronted with the illegal inquiry. magistrate The judge narrow issue of questions whether Bauer’s unlawfully found that had also about the after he ob —asked police package at station served both and Defendant’s without a warrant. The district court apparent attempts push it under the adopted magistrate judge’s Report papers in glove box—-violated the entirety in grant- Recommendation its prohibition Fourth against Amendment’s suppress. Defendant’s ed motion The “unreasonable searches seizures.” U.S. government appeals. they Const.amend. IV. conclude that We did not. II. DISCUSSION stop “A traffic is a ‘seizure’ with “In reviewing district court’s Amendment, Fourth meaning of the evidence,

ruling suppress on a motion to though ‘even purpose stop light we view the evidence most limited resulting quite and the detention party prevailing favorable to the and ac ” Williams, v. brief.’ 271 cept findings the district court’s of fact (quoting F.3d 1266 they unless are clearly erroneous.” Unit (10th Massie, Prouse, 648, 653, States v. 440 ed 65 847 Delaware v. U.S. 99 1066 (1979)). defendant The determination [O]ur L.Ed.2d 660

S.Ct. unlawfully might detained be differ analy “touchstone” of Fourth Amendment questioning by if the the officer did ent all the always “is the reasonableness sis delay beyond the measure govern the particular circumstances necessary to a citation. of time issue personal of a citizen’s se mental invasion example, case would be Mimms, For Pennsylvania v. curity.” if officer changed significantly 106, 108-09, 98 S.Ct. L.Ed.2d U.S. awaiting while curiam) (internal same (per regis results of an NCIC license or omitted). “Reasonableness, marks inquiry. tration course, depends on balance between right public interest and individual’s added). (emphasis Id. arbitrary free in personal security from case, In' v. the second United States (in officers,” at by law id. terference (10th Cir.1995), Jones, 44 F.3d 860 we omitted), quotation marks “is ternal nar- questioning considered about objective by examining measured terms question- cotics totality v. of the circumstances.” Ohio ing awaiting occurred while the officer was

Robinette, S.Ct. dispatcher regarding word from his wheth- (1996). analyze the 136 L.Ed.2d 347 We suspended. er the driver’s license been of a traffic reasonableness under justified upheld We conduct as principles relating investigative deten stated, We with- suspicion. Ohio, Terry tions set forth U.S. any appar- out reference to Walker and (1968). 1868, 20 L.Ed.2d 889 See ent disagreement with what had been said 264 F.3d in that opinion: banc). (10th Cir.2001) (en produces Once the a driver valid license operate proof that she is entitled to At distinguish the outset we must car, the permitted driver must be questioning prolongs between that the de proceed. Subsequent or concurrent de- questioning tention that does not. justified for questioning tentions detention, questioning prolongs When only when officer has reasonable prolongation in itself a sei constitutes drugs of in suspicion illegal transactions Amendment, under zure the Fourth so we any or other of serious crime. repeatedly held questioning have that the by must be at least reasonable supported (internal Id. at 872 marks and See, suspicion. e.g., States v. United San added). omitted; emphasis citation (10th Cir.1994) doval, 29 F.3d 542-43 matter some in The received clarification (questioning pro about contraband that Holt, opinion our en in 264 F.3d 1215. banc longed detention unreasonable because un argued, relying The government had of supported by suspicion crim the Fifth decision in Circuit’s United Walker, activity); inal 933 Shabazz, States v. 993 F.2d 436-38 (10th Cir.1991) n. 2 F.2d 816 & (5th Cir.1993), “during stop that a traffic (same). cause, only is the length based (em- questions for that not As do extend the on questioning,” constraint id. at 1228 added). stop, panels of of this phasis rejected notion, duration circuit We have the matter in dictum on agreeing panel mentioned with the Seventh Circuit’s Childs, In two occasions. Walker we held that the decision United States v. (7th Cir.2001), Holt, unconstitutionally defendant had been de- see F.3d 559 F.3d questioning during tained for a traffic at 1229 n. a decision that was subse- added, quently by set the Seventh Circuit en We however: aside Childs, banc, suspicion” gov “reasonable standard see (“Questions asked seizure, a erns whether or the continuation may affect the reason- during detention seizure, of a is constitutional. Protection (which is a of that detention sei- ableness against seizures is at core zure) they prolong extent that custo- to the Amendment, Fourth to pro whose office is dy, that do not increase the questions but right tect people to be secure “[t]he (or length by detention that extend it houses, persons, papers, their ef time) custody a not make the brief do fects, against unreasonable searches and require suppression itself unreasonable or seizures.” U.S. Const. amend. IV. In of evidence found as result of the an- contrast, rude, officious, protection against swers.”). emphasized In that Holt we rea- questioning intrusive a core not inquiry overarching sonableness is the concern of that Questioning Amendment. Holt, analysis, Fourth Amendment see in itself does constitute a search or F.3d at held that the “Fourth we Bostick, seizure. See Florida v. Amendment reasonableness of L.Ed.2d judged by examining ... must be (1991). Moreover, although person de length both of the detention and the tained On reasonable is not free manner in which it is carried out.” Id. at leave, person questioned by an officer 1230. is free to refuse to the question, answer expand The Holt court did not Thus, see 264 F.3d at 1224. it makes upon determining the standard non-detaining sense to treat questioning propriety questions prolong that do not differently than we treat actual seizures. But it detention. when said Walker, recognized As our analysis may ... “reasonableness of a traffic must “be changed significantly” depending upon part] be judged [in manner which reviewing questions whether we are out,” implied detention] is carried [the prolonged the detention or test, surprisingly, is reason did n. not. 933 F.2d at 816 2. words, In ableness. other we must ask view, In our questions regarding whether the circumstances made it reason package of the reason- questions, able for the officer to ask the contents were questioning even prolong They directly when did not able. were prompted the detention. related to objectively suspi- Defendant’s package caught cious behavior: After the Holt, question As we understand a attention, appar- the officer’s Defendant may despite be “reasonable” absence ently responded by attempting it push particularized of the evidence of crime re glove farther into the box underneath quired suspicion.” for “reasonable After At paperwork point inside. that all all, routinely Holt allows the officer to ask package. Bauer asked was what was plans about travel and the presence of during a loaded firearms lawful traffic say When that questions we Bauer’s 1217-18, addition, stop. Id. at 1221. In were circum- light nothing we see that suggest Holt stances, say we could that are perhaps we circumstances relevant reasonable applying suspicion” stan- “reasonable ness those known to the at the officer dard. But we do not wish to dilute the stop, outset of the to the exclusion what meaning of that The standard. district is during learned the course of court in this case that the evi- believed to the it, dence available to Bauer did not rise as we read is consis tent with Fourth Amendment level of as the term principles. suspicion,” “reasonable does not vanish once the As we have ex- rantless search generally

is understood. immobilized,” v. Michigan has however, car been a less-confined reason- plained, Thomas, 102 S.Ct. in this appropriate is ableness standard curiam), (per 73 L.Ed.2d 750 hold that this overarch- context. And we requirement that the war- no “[t]here standard is met here. ing reasonableness search of vehicle occur contem- rantless reject Accordingly, Defendant’s con- we poraneously with its lawful seizure.” Sergeant tention that Johns, 478, 484, v. United States U.S. the Fourth regarding package violated (1985); 881, 83 L.Ed.2d 890 see 105 S.Ct. Amendment. White, v. Texas U.S. (“police 46 L.Ed.2d officers police B. at the package Search cause to search an automo- probable station stopped it was bile at scene where questioning that the Having determined constitutionally so at could do later the traffic was not unreason- obtaining a war- station house without first (and did not taint all subse- able therefore rant”). Accordingly, a container a vehi- events), turn the district quent we now may be without a warrant cle searched ruling Sergeant court’s alternative after within reasonable time its removal Foui"th Amendment Bauer violated the Johns, from the vehicle. See 469 U.S. at at the when he (approving “a warrant- S.Ct. day station later that same without days after packages search of several less government con- search warrant. po- they were removed from vehicles that to test it opening cedes probable cause lice officers had to believe for was a under the Fourth drugs “search” contraband”); contained ordinarily Amendment for which warrant (10th Cir.1992) Corral, 970 required. would be Cf. (because police probable cause to be- Lopez, 777 F.2d automobile contained lieve (absent exception to the warrant re- contraband, exception permit- automobile quirement, per “warrantless searches are sub- package’s ted warrantless seizure and se unreasonable under Fourth Amend- station). Thus, search at if sequent ment”). however, argües, It auto- probable there was cause to believe Defen- exception mobile the warrant require- dant’s contained contraband at agree. applies ment here. We vehicle, time seized from his was no necessary warrant was the later excep Under the automobile search. tion, probable who “police officers have cause there is contraband to believe inside Here, there cause to stopped an automobile that has been package that the the believe vehicle may obtaining the road search it without a Although contained contraband. Defen Meyers, warrant.” Florida v. U.S. assertion, perfunctory dant makes a with 380, 381, 104 S.Ct. 80 L.Ed.2d 381 argument, suggestion of an curiam). Moreover, if is (per there absent, was his bizarre con cause probable cause to believe that a container flight culminating from the duct— lawfully in a stopped vehicle contains con being pack about scene—after traband, police may search the contain probability “a fair age established a warrant. v. er without See car contraband evidence.” contained] California Acevedo, 500 U.S. 111 S.Ct. v. Vasquez-Castillo, (1991). (10th (internal Furthermore, Cir.2001) 114 L.Ed.2d 619 omitted); justification “the conduct such a marks to war- cf. (10th Bell, ing Aplt’s 100. tape.” App. States v. 892 F.2d Add Cir.1989) (suspicion clumsy attempt that defendant Mr. Oliver’s hide transporting drugs proba- officer, blossomed into from package police to- which police ble when he fled from deten- gether appearance cause with the unusual tion). Accordingly, Sergeant we hold that reasonably could package have incited sus- not violate the Fourth Amend- did picion. It is arguably therefore not neces- package ment he at the when sary precisely to debate what standard we without station a warrant. apply questions beyond must scope of the initial traffic —reasonableness III. CONCLUSION suspicion or reasonable even the —because grant We the district court’s more demanding REVERSE standard un- is satisfied to suppress Defendant’s motion der these facts. for further proceedings REMAND consis- concluding In there was no basis for opinion. tent with this suspicion, Magistrate reasonable Judge found that was “not LUCERO, J., concurring. obviously Aplt’s App. contraband.” 45. join I of Judge concurrence McCon- But a not have does to be “obvi- predicated nell as its analysis insofar ously” give contraband to rise to reason- suspicion. Expressly, I do suspicion. Indeed, if able “obvi- were join Judge analysis Hartz’s is based contraband,” ously it would constitute on a generalized “reasonableness” stan- probable cause for search and arrest —not dard; is contrary such standard to the just asking ques- basis few more en established banc of this precedent Moreover, tions. attempt the defendant’s court. United States v. 264 F.3d heightened offi- hide Terry (applying Thus, suspicions. cer’s I do think a Ohio, 20 legal Sergeant conclusion that Bauer had a L.Ed.2d to the issue of whether basis for reasonable is inconsis- of a course finding. tent with the factual Amendment). violate Fourth McCONNELL, J., concurring. join

I Judge opinion, Hartz’s but wish

add that I consider it from far clear Sergeant Bauer suspi- lacked “reasonable SOUTHWEST FOUR WHEEL DRIVE cion” to Oliver question Mr. about ASSOCIATION, a New Mexico non contents unusual in his profit association; Las Four Cruces glove compartment. The package was Club, a Wheel Drive New Mexico un about six inches long, cylindrical, wrapped incorporated association, Plaintiffs- paper tape. brown Appellants, officer, 10-year Highway veteran Patrol approxi- who been involved in cases, mately drug-interdiction MANAGEMENT, testi- OF LAND BUREAU fied training agency that based and experi- of the United De States packaging ence the appeared Interior; consistent partment Amy of the Leu way drugs transported ders, Manager, District Las Cruces highways. interstate He stated that he District, Manage Bureau of Land anything wrapped “never seen like ment; America, De drugs wrapped that was not in mask- fendants-Appellees.

Case Details

Case Name: United States v. Oliver

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 6, 2004

Citation: 363 F.3d 1061

Docket Number: 02-4187

Court Abbreviation: 10th Cir.