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United States v. Cone

United States Court of Appeals, Tenth Circuit

August 24, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JOHN ELDRIDGE CONE, Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:16-CR-00003-CVE-1)

         Submitted on the briefs: [*]

          Julia L. O'Connell, Federal Public Defender, Barry L. Derryberry, Assistant Federal Public Defender, and Stephen J. Greubel, Senior Litigator, Office of the Federal Public Defender, Northern District of Oklahoma, Tulsa, Oklahoma, for Defendant-Appellant.

          Danny C. Williams, Sr., United States Attorney, and Leena Alam, Assistant United States Attorney, Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

          Before HARTZ, MATHESON, and MORITZ, Circuit Judges.

          HARTZ, CIRCUIT JUDGE.

         Defendant John Eldridge Cone pleaded guilty to possession of controlled substances with intent to distribute. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C). But he reserved the right to appeal the district court's denial of his motion to suppress the evidence seized from his car by a police officer during a traffic stop. His sole argument on appeal is that the officer exceeded the Fourth Amendment bounds of the stop by asking him about his criminal history and travel plans. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         The proper scope of a traffic stop includes "certain negligibly burdensome precautions" taken for officer safety. Rodriguez v. United States, 135 S.Ct. 1609, 1616 (2015). Brief questions about a driver's criminal history are no more burdensome than computer background checks, which circuit precedent has routinely permitted. And because Defendant fails to show the necessary causal connection between the travel-plan question and the discovery of the drugs, we need not address the validity of that question.

         I. BACKGROUND

         On November 29, 2015, Tulsa Police Officer Peter Maher was driving on patrol. About 10:30 p.m. he noticed a white pickup truck crossing through an intersection on 41st Street without a functioning license-plate light, in violation of Oklahoma law.

         Without activating his emergency lights, Maher turned around to pursue the truck. He found the truck in a motel parking lot, near another motel well known for criminal activity. In recent months he and his partners had made numerous arrests for narcotics trafficking and firearms offenses in the immediate area. Maher parked his vehicle, approached Defendant's parked truck by foot, and knocked on the driver's side window. About two minutes had passed since Maher first observed the traffic violation.

         When Defendant lowered his window, Maher asked for his driver's license and informed him that his car's tag light was not functioning. Defendant acknowledged that he was the person who had been driving on 41st Street. Maher asked if Defendant had "ever been in trouble before" (to which Defendant replied yes), R., Vol. III at 20, and whether he had "been to prison before" (to which Defendant again replied yes), id. at 21. Maher asked "For what?" and Defendant falsely claimed that it was for money laundering. Id. Maher testified that "the vast majority of the time" he would question those he has pulled over "[t]o assess somebody's criminal history, to determine if they have any violent history in their past that might pose a safety risk to me . . . or my partners during the course of an encounter." Id. at 21.

         Maher also asked a question along the lines of "What are you doing here?" or "Who are you visiting here?" about which he and Defendant spoke "very, very briefly." Id. at 46. Planning to run a warrant inquiry and status check of Defendant's license, Maher followed his typical practice of requesting drivers to step out of their vehicles while he ran the computer check. He said that he makes the request for his own safety, a particular concern here because he was alone. As Defendant got out, Maher noticed the butt of a pistol protruding from underneath the truck's center console. Maher drew his pistol and told Defendant to get on the ground. After a brief exchange Defendant attempted to flee but Maher apprehended him. Officer Kristi Score soon arrived and secured Defendant's truck, where she found the pistol to be loaded. As she unloaded the firearm, she detected the odor of marijuana emanating from the passenger side of the truck. She opened the passenger-side door and found a backpack containing drugs, including marijuana and methamphetamine, as well as small bags and digital scales.

         Defendant was charged with one count of being a felon in possession of a firearm; one count of possessing methamphetamine, cocaine, oxycodone, and MDMA with intent to distribute; and one count of possessing a firearm in relation to a drug-trafficking crime. He moved to suppress the seized evidence, raising two grounds at the suppression hearing: One, he attacked Maher's credibility regarding the events surrounding the stop; and two, he argued that even under the disputed version, the officer conducted an improper investigation by questioning ...


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