On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Crim. No. 99-00215) District Judge: Honorable William J. Nealon
Before: Mckee and Greenberg, Circuit Judges,
and Lifland, District Judge *fn1
The opinion of the court was delivered by: Greenberg, Circuit Judge.
This criminal case comes on before this court on appeals from judgments of conviction and sentence entered June 25, 2001. A jury convicted defendants-appellants Yul Darnell Givan and Wayne Torrence on one count of conspiring to distribute and possess with intent to distribute in excess of 100 grams of heroin in violation of 21 U.S.C. SS 846, 841(a)(1), and 841(b)(1)(B) and one count of possession with intent to distribute in excess of 100 grams of heroin in violation of 21 U.S.C. SS 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. S 2.
On appeal, both defendants argue that the district court should have granted their motions to suppress the heroin seized from the vehicle the Pennsylvania state police stopped which Torrence had been driving and in which Givan had been a passenger. They argue in this regard that Torrence did not freely and voluntarily give his consent for the search.
Givan argues that Trooper Jeffrey Taylor violated his Fourth Amendment rights when he continued to question the vehicle's occupants after the initial reason for the stop had been satisfied. Moreover, he contends that the district court erred when it applied Fed R. Evid. 404(b) to allow evidence that Givan had been convicted of a felony drug offense in Des Moines County, Iowa, on January 25, 1993. Finally, he contends that the court erred when it allowed Darryl Morgan to testify as to his drug purchases from the defendants as Givan contends that Morgan's testimony was not relevant to the conspiracy offense charged and was inadmissible under Fed. R. Evid. 404(b).
Torrence contends that his sentence should be vacated because the district court clearly erred in calculating his total offense level in making findings that he was involved in the distribution of between one and three kilograms of heroin and that he possessed a firearm in relation to drug trafficking. Torrence also makes an ineffective assistance of counsel claim, arguing that when deciding to take the case to trial rather than plead guilty, he relied on his counsel's incorrect calculation of the guideline range that would apply at sentencing after conviction at trial. Finally, Torrence argues that he detrimentally relied upon the government's statements of what his guideline range would be after trial. For the reasons set forth below, we will affirm.
On September 8, 1999, at 1:30 p.m., Trooper Taylor pulled over Torrence and his two passengers, John Billings and Givan, for speeding on Route 80 in Luzerne County, Pennsylvania, after he clocked their vehicle at 77 miles per hour in a 65 miles per hour zone. In response to Taylor's request for his driver's license and registration, Torrence provided a Michigan driver's license and a rental agreement which indicated that the car had been rented in Michigan less than 24 hours earlier. Taylor asked Torrence to exit the car and accompany him to the patrol car where he showed Torrence the radar reading and wrote Torrence a warning notice for speeding. Taylor then returned Torrence's license and rental agreement and informed him that he was free to leave.
Nevertheless, Taylor then asked Torrence if he would mind answering a few questions and Torrence agreed. In response to questions about the destination of his trip, Torrence told Taylor that he had come from New Brunswick, New Jersey, where he visited his sister, who had been in a very bad car accident. By this time a second trooper, Louis Rossi, had arrived to assist Taylor with the stop and Taylor asked Rossi to inquire of Givan and Billings as to from where they had come. Either Givan or Billings told Rossi that they were coming back from New York.
Taylor then approached the vehicle, and asked Billings and Givan from where they were coming. Billings, in the front seat, said they were coming from New York. Taylor then asked "Anywere else?" and Givan, in the back seat, leaned forward and said that they came from New York only, where they had been visiting some friends. After hearing the inconsistent explanations describing their travels and observing that Torrence appeared to be nervous, Taylor asked him for his consent to search the vehicle. Torrence said he had nothing to hide and consented to the search whereupon Taylor patted him down.
After obtaining Torrence's consent to the search, Taylor asked Billings to step from the vehicle. As Billings exited the vehicle, Taylor noticed a tourniquet protruding from his pocket which Taylor then pulled out. Taylor then asked Billings if he was a heroin addict and Billings responded that he had been, but that he was not any more. Taylor asked Billings if he had any needles. Billings responded "yes" and pulled out a needle and put it on top of the vehicle. At that point Taylor observed a white piece of paper protruding from Billings' front pocket and Taylor pulled the paper out and opened it up. It was a lottery ticket containing a brown powder substance that appeared to be heroin. As Taylor was looking at the substance, Billings grabbed the ticket and threw the substance into the air.
The troopers then handcuffed Billings and Torrence. They, however, did not handcuff Givan though they did place him on the ground next to Billings and Torrence.
Rossi and Taylor then searched the vehicle and under its back seat Rossi found a bag of heroin in pellet form. Subsequent laboratory testing revealed that the bag contained 113.5 grams of heroin having a purity level of 43%. The DEA was contacted and Torrence, Givan and Billings were given Miranda warnings and transported to the state police barracks in Hazleton, Pennsylvania.
After Billings agreed to cooperate in the investigation and entered into a plea agreement, a grand jury returned a two-count Second Superseding Indictment against Givan and Torrence on November 30, 1999. Count I charged that on or about and between a date unknown and September 8, 1999, the defendants conspired to distribute and possess with intent to distribute in excess of 100 grams of heroin in violation of 21 U.S.C. SS 846, 841(a)(1) and 841(b)(1)(B). Count II charged that on or about September 8, 1999, the defendants possessed with intent to distribute in excess of 100 grams of heroin in violation of 21 U.S.C. SS 841(a)(1), 841(b)(1)(B) and 18 U.S.C. S 2. Both counts added, pursuant to 21 U.S.C. S 851, an allegation of Givan's prior felony drug conviction. Both defendants pleaded not guilty.
Givan filed a pretrial motion in limine seeking an order precluding the government from offering his prior felony drug conviction into evidence. By Memorandum and Order dated November 13, 2000, the district court denied Givan's motion. Furthermore, both defendants made unsuccessful pretrial motions to suppress the heroin.
On December 11, 2000, defendants' joint jury trial began. The government called, among other witnesses, Darryl Morgan. Givan objected to Morgan's testimony, claiming that it was not relevant to the issue of whether there was a drug conspiracy and that, in any event, it was more prejudicial than probative. The prosecutor informed the court that Morgan would testify that Torrence had introduced Givan to him as someone from whom Morgan could buy drugs, and that Morgan had purchased heroin from Givan during the time period of the conspiracy alleged in the Indictment. The court determined that the evidence was admissible and thus overruled Givan's objection and allowed the testimony.
On December 13, 2000, the jury convicted Givan and Torrence on both Counts of the Second Superseding Indictment. Torrence objected to the subsequently prepared presentence report, arguing that his base offense level should be 26 rather than 32 as proposed in the report, and that, contrary to the proposals in the report, neither a firearms enhancement nor a role enhancement should apply. On June 13, 2001, the district court held a sentencing hearing. At the hearing, Torrence's counsel notified the court that Torrence had been under the mistaken impression that his likely guideline sentencing range after trial would be 78 to 97 months, in a"worse case situation." Torrence's counsel indicated that this mistaken impression was based on a conversation he, the counsel, had had with the prosecutor. The prosecutor confirmed that there had been a discussion about the possible guideline range in the context of a proposed plea offer but that no formal plea offer had been made. After listening to the arguments, the court overruled Torrence's objections to the base offense level and the firearms enhancement but upheld his objection to the role enhancement. The court then sentenced Torrence to 151 months imprisonment, to be followed by four years of supervised release, and sentenced Givan to 120 months imprisonment to be followed by eight years of supervised release. Defendants then appealed.
We have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a). The district court exercised subject matter jurisdiction pursuant to 18 U.S.C. S 3231.
The district court denied Torrence's motion to suppress as evidence the heroin obtained from the vehicle search.*fn2
The court based its decision on its findings that (1) the troopers had probable cause to charge Torrence with speeding; (2) the troopers had a reasonable suspicion to believe that Torrence had committed a crime justifying further investigation; (3) Torrence freely and unqualifiedly gave consent to the troopers to search the vehicle. We "review[ ] the district court's denial of the motion to suppress for 'clear error as to the underlying facts, but exercise[ ] plenary review as to its legality in light of the court's properly found facts.' " United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998) (quoting United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991)).
Neither defendant contests the district court's first ruling that the initial stop clearly was justified inasmuch as Taylor clocked the vehicle at 77 miles per hour in a 65 miles per hour zone. After a traffic stop that was justified at its inception, an officer who develops a reasonable, articulable suspicion of criminal activity may expand the scope of an inquiry beyond the reason for the stop and detain the vehicle and its occupants for further investigation. See United States v. Johnson, 285 F.3d 744, 749 (8th Cir. 2002). While "reasonable suspicion" must be more than an inchoate "hunch," the Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory stop. See United States v. Sokolow, 490 U.S. 1, 13, 109 S. Ct. 1581, 1585 (1989). In determining whether there was a basis for reasonable suspicion, a court must consider the totality of the circumstances, in light of the officer's experience. See United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750-51 (2002); United States v. Orsolini, 300 F.3d 724, 728 (6th Cir. 2002). Within the last year we have noted that in "the Supreme Court's most recent pronouncement on the Fourth Amendment reasonable suspicion standard, it accorded great deference to the officer's knowledge of the nature and the nuances of the type of criminal activity that he had observed in his experience, almost to the point of permitting it to be the focal point of the analysis." United States v. Nelson, 284 F.3d 472, 482 (3d Cir. 2002).
Even assuming, as the district court seemed to do, that the brief questioning following the return of Torrence's documents occurred while Torrence had been seized for Fourth Amendment purposes rather than during a consensual encounter that began once Torrence's documents were returned and he was informed that he was free to leave, Taylor had a reasonable and articulable suspicion of illegal activity sufficient to extend the stop the few additional minutes it took to ask the occupants about their travel destinations. Taylor knew at that time that: (a) Torrence had been speeding; (b) Torrence was operating a motor vehicle that had been rented less than 24 hours earlier in Saginaw, Michigan; (c) the estimated driving time from Saginaw to New York City and back to the site of arrest was approximately 17 hours; (d) it is a common practice of drug dealers from other states to make a non-stop trip to New York City and back for purchasing drugs; (e) Torrence appeared nervous and fidgety and was talking often and shuffling his feet. Furthermore, questions relating to a driver's travel plans ordinarily fall within the scope of a traffic stop. See United States v. Williams , 271 F.3d 1262, ...