APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. No. 5:13-CR-00150-HE-1).
Submitted on the briefs:[*]
Teresa Brown, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.
Sanford C. Coats, United States Attorney; Steven W. Creager, Special Assistant United States Attorney; Robert Don Gifford, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before BRISCOE, Chief Judge, TYMKOVICH and MORITZ, Circuit Judges.
BRISCOE, Chief Judge.
Defendant Tracey Richard Moore appeals the district court's denial of his motion to suppress evidence obtained during a search of his vehicle following a traffic stop. After Moore was pulled over for speeding and issued a warning, an Oklahoma Highway Patrol trooper continued to detain Moore in order to conduct a dog sniff. The dog alerted to Moore's vehicle and a subsequent search revealed a sawed-off shotgun and ammunition in the trunk. Moore moved to suppress all evidence discovered during the stop. After the district court denied Moore's motion, he pleaded guilty to being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). On appeal, Moore argues the district court erred in denying his motion to suppress because the trooper lacked reasonable suspicion to detain him after the purpose of the stop was met. He also argues his Fourth Amendment rights were violated when the narcotics-detection dog jumped into his vehicle. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
On April 8, 2013, Oklahoma Highway Patrol Trooper Matt Villines pulled Moore over for speeding. Moore was traveling 73 miles per hour in a 70 mile-per-hour zone, and was driving a gold Chrysler Sebring with California license plates.
Trooper Villines approached Moore's vehicle and asked Moore to step out of the car. Trooper Villines also asked Moore for his driver's license and insurance documents. Moore met Trooper Villines in front of his patrol car and gave Trooper Villines his California driver's license and insurance documents. Trooper Villines noticed that Moore seemed nervous. His hands were shaking as he handed over his driver's license; he rarely made eye contact; he kept fidgeting; and he immediately asked if he could smoke a cigarette. Even after Trooper Villines told Moore that he would only be receiving a warning, Moore still appeared nervous.
Trooper Villines asked Moore to sit in his patrol car while he wrote up the warning; Moore complied. While in the patrol car, Trooper Villines asked Moore about the reason for his trip. Moore explained that he was moving from California to New York. As Trooper Villines was examining Moore's vehicle registration, Trooper Villines noticed that the vehicle Moore was driving was registered not only to Moore, but also to a female with a different last name. When Trooper Villines asked Moore about this, Moore said that he had known the female for several years and that his name had been added to the registration about a week ago. Throughout this conversation, Trooper Villines noticed that Moore still seemed nervous. Trooper Villines completed the warning ticket, returned all of Moore's documents to him, and told Moore to have a good day.
Before Moore got out of the patrol car, Trooper Villines asked Moore if he could speak to him for a little bit longer. Moore said yes, and Trooper Villines proceeded to ask Moore if he had ever been in any trouble before. Moore stated that he had but that he did not wish to talk about it. However, Moore added that Trooper Villines " could probably look it up easy enough." ROA, Vol. 3 at 14. Trooper Villines then asked Moore if he had anything illegal in his vehicle, such as weapons or drugs. Moore said no. Trooper Villines next asked Moore for consent to search his vehicle. Moore refused. At that point, Trooper Villines informed Moore that he would be detaining him to conduct a dog sniff of his vehicle.
Approximately two and a half minutes after Moore refused to consent to the search of his vehicle, Oklahoma Highway Patrol Trooper Ryan Fike arrived with his certified narcotics-detection dog, Jester. As Trooper Fike and Jester were walking around the rear of Moore's vehicle, Jester alerted. Jester snapped his head around, returned to the front of Moore's vehicle, and jumped through the driver's side window, which Moore had left open. While walking over to the driver's side of the car, Trooper Fike noticed that Jester had his nose on the center console and that he was wagging his tail. Trooper Fike pulled Jester out of Moore's vehicle.
Trooper Villines and Trooper Fike then searched Moore's vehicle. They did not find any drugs during their search; however, they did discover a 12-gauge, double-barreled sawed-off shotgun and ammunition in the trunk. Trooper Villines ran a criminal history check on Moore and learned that Moore had a prior felony conviction, ...