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United States v. Pettit

United States Court of Appeals, Tenth Circuit

May 13, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MICHAEL E. PETTIT, Defendant - Appellant

Page 1375

[Copyrighted Material Omitted]

Page 1376

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D.C. No. 2:13-CR-00286-DS-1).

Daphne A. Oberg, Assistant Federal Public Defender (Kathryn N. Nester, Federal Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, with her on the briefs), Salt Lake City, Utah, for Defendant - Appellant.

Diana Hagen, Assistant United States Attorney (Carlie Christensen, Acting United States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff - Appellee.

Before BRISCOE, Chief Circuit Judge, KELLY and SEYMOUR, Circuit Judges.

OPINION

Page 1377

KELLY, Circuit Judge.

In 2013, Defendant-Appellant Michael E. Pettit was indicted on one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), after police discovered 2.5 kilograms of cocaine hidden in a vehicle he was driving. Mr. Pettit filed a motion to suppress, which the district court denied following an evidentiary hearing. United States v. Pettit, No. 2:13CR00286, 2013 WL 5494664 (D. Utah Oct. 2, 2013). A jury found Mr. Pettit guilty, and he was sentenced to ten years of imprisonment followed by eight years of supervised release.

On appeal, Mr. Pettit asserts that the district court erred by denying his motion to suppress because the police improperly extended a lawful traffic stop based on factors failing to give rise to objectively reasonable suspicion of criminal activity. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Background

On the afternoon of April 17, 2013, a Utah Highway Patrol Trooper, Thomas Simpson, observed Mr. Pettit drive across the fog line multiple times. He was traveling approximately 45 miles per hour and had just passed through a " snow burst" on mountainous terrain. The snow had subsided, and the roads were dry.

The trooper stopped Mr. Pettit at 3:32 p.m. and approached the vehicle. Mr. Pettit stated that he was " not from around here" and that the snow burst had " scared the hell out" of him. I R. 22, II R. 82-83. The trooper explained he had stopped Mr. Pettit because he had crossed the fog line and asked for his license and registration. Mr. Pettit stated that he was not the owner of the vehicle, and he handed over the registration but not his driver's license. The trooper asked who the owner of the car was, and Mr. Pettit gave the first name of the woman listed on the registration, Annette. During this exchange, Mr. Pettit's lower body was " kind of moving nervously." I R. 23.

The trooper asked Mr. Pettit for details about his travel plans, including where he was coming from and where he was going. Mr. Pettit explained that he had flown to California to pick up his friend's car and drive it back to Kansas. The trooper then asked Mr. Pettit if he had any luggage, since he did not see any bags in the passenger compartment. The trooper believed it was abnormal for a person driving across the country to have no bags, snacks, or garbage next to him in the car. II R. 84. Mr. Pettit indicated that he had a bag in the trunk, along with luggage belonging to his friend. He then said to the trooper, " [Y]ou make me kind of nervous." Id. at 86. The trooper asked for permission to look in the trunk, and Mr. Pettit agreed.

Mr. Pettit pulled the release for the trunk, and the trooper asked Mr. Pettit to stay seated and requested his driver's license a second time. Mr. Pettit repeated that the trooper was making him nervous. Id. at 92. The trooper testified that " [m]ost people don't tell me they are nervous, but he told me twice within 25 seconds." I R. 32. Mr. Pettit began flipping through his wallet to produce his driver's license. The trooper noticed that Mr. Pettit passed over a California license before removing a Missouri license. As Mr. Pettit handed over the Missouri license, the trooper noticed that " [h]is whole arm shook very nervously, which is different than the general public." II R. 85. According to the trooper, he has had extensive experience with motorists and, while many people display small jitters when pulled over, generally " their whole arm is not shaking nervously." Id. at 86. On Mr. Pettit's Missouri license, the label

Page 1378

" Nondriver" was clearly printed. Id. at ...


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