                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  JUL 30 2002
                                      TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 v.                                                           No. 01-3297
                                                      (D.C. No. 00-CR-40077-RDR)
 TIMOTHY R. LLOYD,                                            (D. Kansas)

           Defendant - Appellant.




                                   ORDER AND JUDGMENT*


Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and KELLY,
Circuit Judge.


       On August 22, 2000, Timothy R. Lloyd (“Lloyd”) was charged in a three-count

indictment as follows: possession of methamphetamine with an intent to distribute in

violation of 21 U.S.C. § 841(a); attempt to manufacture methamphetamine in violation of

21 U.S.C. § 841(a); and possession of a listed chemical with an attempt to manufacture

methamphetamine in violation of 21 U.S.C. § 841(d)(1). On September 19, 2000, Lloyd

filed a motion to suppress the use at trial of evidence obtained in a search of his van



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
occurring on March 26, 2000, and the evidence obtained in a search of his two residences

occurring on March 26 and March 29, 2000. On October 20, 2000, the district court in a

memorandum order granted Lloyd’s motion to suppress in part, and denied it in part.

Specifically, the district court suppressed the use at trial of the evidence obtained in the

search of Lloyd’s van, but held that the evidence obtained in a search of Lloyd’s two

residences on March 26 and March 29, 2000, was admissible and not subject to a motion

to suppress. On October 27, 2000 the government filed a motion to reconsider that part of

the district court’s order suppressing the use at trial of evidence obtained in the search of

Lloyd’s van, which motion was denied on December 22, 2000. Thereafter on April 17,

2001, Lloyd filed a motion with the district court to reconsider its ruling with regard to

the use at trial of evidence obtained in the search of Lloyd’s two residences. The

government also filed an additional motion asking the district court to reconsider its order

of December 22, 2000, denying its motion to reconsider the order of October 20, 2000.

On May 17, 2001, the district court vacated its earlier order of October 20, 2000, and

denied Lloyd’s motion to suppress in toto, holding that the government, at trial, could use

the evidence obtained in the search of Lloyd’s van, as well as the evidence obtained

thereafter in the search of Lloyd’s two residences.

       On June 6, 2001, pursuant to Fed. R. Crim. P. 11 (a)(2), Lloyd entered a

conditional plea of guilty to a one count information alleging a conspiracy to manufacture

and distribute a detectable amount of methamphetamine. He was sentenced to


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imprisonment for 151 months followed by 36 months of supervised release. On appeal,

counsel argues that the district court erred in denying Lloyd’s motion to suppress, as such

relates to both the search of Lloyd’s van and his two residences. Finding no reversible

error, we affirm.

       On March 26, 2000, at 1:19 p.m. Lloyd, while traveling east in a blue two-tone van

on Interstate 70, was stopped by Russell County Sheriff’s Deputy Kelly Schneider

(“Schneider”) on suspicion of driving while intoxicated. According to Schneider, Lloyd

was weaving in and out of his driving lane. When asked, Lloyd said he had not been

drinking. When requested, Lloyd gave Schneider his driver’s license and registration.

Schneider returned to his patrol car, ran the usual checks and wrote Lloyd a warning

citation. Schneider then returned to Lloyd’s vehicle and asked Lloyd to step out of his

vehicle and accompany him to the area between the rear of the van and the front of the

patrol car. After giving Lloyd the warning citation and his driver’s license and

registration, Schneider asked Lloyd if he could “ask” him a couple of questions. Lloyd

replied “yes.” Schneider stated that there was a lot of drug traffic on I-70 and asked

Lloyd if he had anything like that in his van. Lloyd replied he did not. Schneider then

asked if he could look in Lloyd’s van. Lloyd replied “no.” Schneider testified at the

suppression hearing that he had “received prior information reference to Mr. Lloyd

manufacturing and distributing methamphetamine.” Because of the “prior information”

he had received concerning Lloyd, Schneider believed he was justified in running his


                                            -3-
narcotics dog around the car, which he then did. When the dog alerted, Schneider

searched the van and found methamphetamine, marijuana, drug paraphernalia, and a

“blue money bag.” After searching the van, Schneider prepared affidavits in support of

applications to search Lloyd’s residence in Russell, Kansas, and a second residence in

Lorraine, Kansas, which warrants issued later the same day. An ensuing search of

Lloyd’s Russell residence disclosed nothing. The search of Lloyd’s Lorraine residence

disclosed certain items related to the manufacture of methamphetamine.

      Schneider’s testimony at the suppression hearing held on October 11, 2000,

concerning the “prior information” about Lloyd which he had at the time he stopped

Lloyd driving his blue van east on I-70 in Russell County, Kansas, is summarized as

follows:

             1. On December 17, 1999, he (Schneider) received a phone
             call from the Ellsworth County Sheriff, one Tracey Ploutz,
             wherein Ploutz advised him that he had talked to a
             confidential informant who stated that one Steve Shute was
             going to Lloyd’s house in Russell to purchase
             methamphetamine.

             2. In February, 2000, he learned that the Russell County
             Sheriff, one John Fletcher, had received a phone call from one
             Fred Deibes of the Corrections Department in Great Bend,
             that a confidential informant had advised him that Lloyd
             manufactured methamphetamine and had a large quantity of
             ephedrine and money in his house and also had a quantity of
             ephedrine stored across the Oklahoma border.

             3. On March 5, 2000, he and an agent of the Kansas Bureau
             of Investigation interviewed Steve Shute, who stated that
             Lloyd runs the Last Chance Barbecue in Russell and that he

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              has two Ford vans, one white and one blue. Shute also
              advised him at the same time that Lloyd manufactured
              methamphetamine with the anhydrous and lithium metal
              process and that he had recently purchased between $3000
              and $5000 worth of ephedrine in Oklahoma. Shute also
              added that Lloyd had recently purchased a house in Lorraine,
              Kansas, and had two persons who distributed one ounce
              of methamphetamine for him weekly.

       and    4. On March 24, 2000, he and another agent of the Kansas
              Bureau of Investigation interviewed one Kenneth Peterson
              who stated that Lloyd manufactured methamphetamine and
              that he (Peterson) and Lloyd about three months before had
              gone to Oklahoma where he (Peterson) purchased $6000
              worth of ephedrine with Lloyd’s money. Peterson also stated
              at that time he had seen Lloyd cook and manufacture
              methamphetamine in Lloyd’s house and his barbecue trailer
              and that Lloyd had recently purchased a second home in
              Lorraine, Kansas. Peterson also advised them that Lloyd
              often took his vans “out in the country” where he cooked his
              methamphetamine. Finally, Peterson stated that Lloyd often
              carried methamphetamine and cash in a “blue money bag.”

       On appeal, counsel for Lloyd does not argue that Schneider’s initial stop of the van

Lloyd was driving was unlawful, or that after the narcotics dog alerted to the van,

Schneider did not have probable cause to search the van. Counsel does argue, however,

that the “continued detention” of Lloyd after Schneider had returned to Lloyd his driver’s

license and registration and given him the warning ticket was unlawful because it was not

based on any “objectively reasonable and articulable suspicion” that Lloyd was involved

in criminal activity which had occurred or was occurring.

       The government, in turn, concedes that nothing occurring between Schneider and

Lloyd at the scene of the stopping indicated any past or present criminal conduct on the

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part of Lloyd, except for the traffic violation. However, the government does contend

that Schneider’s continued detention of Lloyd after he had returned Lloyd’s driver’s

license and registration to him and given him the warning citation was lawful since, based

on the “prior information” which Schneider possessed, he had an “objectively reasonable

and articulable suspicion” that Lloyd was engaged in drug trafficking. As indicated, the

district court on October 20, 2000, agreed with Lloyd’s counsel and suppressed the use at

trial of the evidence seized in Schneider’s search of the van. However, on May 17, 2001,

the district court vacated its earlier order and denied Lloyd’s motion to suppress the use at

trial of the evidence taken from Lloyd’s van. In changing its mind on the matter, the

district court spoke as follows:

              “The court can only say that further review of the record has
              convinced us that we earlier reached an incorrect decision.
              We certainly regret this turn of events. Nevertheless, we
              believe that it is necessary to reach the correct result, even if
              the path to that decision is rocky.”

       In United States v. McKissick, 204 F.3d 1282, 1296 (10th Cir. 2000) in discussing

our standard of review when reviewing a district court’s denial of a motion to suppress,

we spoke as follows:

                     When reviewing a district court’s denial of a motion to
              suppress, we consider the totality of the circumstances and
              view the evidence in a light most favorable to the
              government. We accept the district court’s factual findings
              unless those findings are clearly erroneous. The credibility of
              witnesses, the weight to be given evidence, and the reasonable
              inferences drawn from the evidence fall within the province
              of the district court. Keeping in mind that the burden is on the

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              defendant to prove that the challenged seizure was illegal
              under the Fourth Amendment, the ultimate determination of
              reasonableness under the Fourth Amendment is a question of
              law reviewable de novo.

       The fact that Lloyd did not consent to a search of his van cannot “form any part of

the basis of reasonable suspicion.” United States v. Manuel, 992 F.2d 272, 274 (10th Cir.

1993). Absent consent, the scope and duration of a traffic stop may be expanded beyond

its initial purpose if, and only if, the police officer has “a particularized and objective

basis for suspecting the particular person stopped of criminal activity.” United States v.

Wood, 106 F.3d 942, 946 (10th Cir. 1997).

       In United States v. Sokolow, 490 U.S. 1, 7 (1989) the Supreme Court was

concerned with whether there was “reasonable suspicion” to justify a Terry stop. In

connection with the quantum of evidence necessary to establish “reasonable suspicion,”

the Supreme Court spoke as follows:

                      The officer, of course, must be able to articulate
              something more than an “inchoate and unparticularized
              suspicion or ‘hunch’” [Terry v. Ohio, 392 U.S. 1, 27]. The
              Fourth Amendment requires “some minimal level of objective
              justification” for making the stop. That level of suspicion is
              considerably less than proof of wrongdoing by a
              preponderance of the evidence. We have held that probable
              cause means “a fair probability that contraband or evidence of
              a crime will be found,” and the level of suspicion required for
              a Terry stop is obviously less demanding than for probable
              cause. (Citations omitted.)

       In accord with Sokolow, in United States v. Williams, 271 F.3d 1262, 1268 (10th
Cir. 2001) we spoke as follows:


                                              -7-
              We consider it worth repeating that our analysis of whether an
              investigative detention is supported by an objectively
              reasonable suspicion of illegal activity turns on our review of
              the totality of the circumstances. In doing so, we “judge the
              officer’s conduct in light of common sense and ordinary
              human experience,” and we accord deference to an officer’s
              ability to distinguish between innocent and suspicious actions.
              Reasonable suspicion, however, may not be derived from
              inchoate suspicions and unparticularized hunches. (Citations
              omitted.)

       In Alabama v. White, 496 U.S. 325, 330 (1990) the Supreme Court commented on

the “reliability” aspect of information previously received by a police officer involved in

a traffic stop as follows:

              Reasonable suspicion is a less demanding standard than
              probable cause not only in the sense that reasonable suspicion
              can be established with information that is different in
              quantity or content than that required to establish probable
              cause, but also in the sense that reasonable suspicion can arise
              from information that is less reliable than that required to
              show probable cause.

       As above indicated, in the instant case Schneider’s “prior information” concerning

Lloyd was derived from four sources. In this connection the Eighth Circuit in United

States v. Goodson, 165 F.3d 610, 614 (8th Cir. 1999) in discussing “probable cause” (not

reasonable suspicion) for a search warrant spoke as follows:

              We also note that even though the other two informants may
              not have had a track record of reliability, their tips
              corroborated the first informant’s tip and to some extent each
              other’s tips, which also “render[s] their information enough to
              support a finding of probable cause.” United States v.
              Fulgham, 143 F.3d 399, 401 (8th Cir. 1998).


                                            -8-
        In like fashion, in United States v. Le, 173 F.3d 1258, 1266 (10th Cir. 1999), a case

where the sufficiency of an affidavit upon which a search warrant was challenged, we

said:

               The affidavit contained information provided by two different
               informants whose stories were remarkably consistent.
               “[C]onsistency between the reports of two independent
               informants helps to validate both accounts.” United States v.
               Schaefer, 87 F.3d 562, 566 (1st Cir. 1996); see also United
               States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998) (holding
               that the magistrate’s finding of probable cause was supported
               by, among other things, the “reciprocally corroborative”
               consistency in the information provided by two separate
               informants); United States v. Pritchard, 745 F.2d 1112, 1121
               (7th Cir. 1984) (stating that “[b]y telling consistent yet
               independent stories, the informants provide ‘cross-
               corroboration,’ and enhance the reliability of the application
               as a whole” (citations omitted). Also, it was against the penal
               interest of the informants to provide this type of information
               to the police, a factor we have considered indicative of
               reliability. See United States v. Sturmoski, 971 F.2d 452, 457
               (10th Cir. 1992).

        In concluding that Schneider had such “reasonable suspicion” that Lloyd was

engaged in an ongoing criminal activity as to justify his continued detention of Lloyd in

order that he could run his narcotics dog around Lloyd’s van, the district court spoke as

follows:

                       Deputy Schneider decided to run the drug dog around
               the van because he had been involved in an investigation of
               Mr. Lloyd prior to March 26, 2000, and had learned from
               several sources that Mr. Lloyd was actively engaged in the
               methamphetamine business. Deputy Schneider had received
               the following information: (1) a telephone call from the
               Ellsworth County Sheriff on December 17, 1999, indicating

                                             -9-
              that a confidential informant had told him that Steve Shute
              was going to Mr. Lloyd’s house in Russell, Kansas, and
              purchasing methamphetamine; (2) a telephone call from Fred
              Deibes who worked with the Kansas Department of
              Corrections indicating that a confidential informant had told
              him that Mr. Lloyd manufactured methamphetamine and had
              a large quantity of ephedrine and money in his house as well
              as a quantity of ephedrine stored in Oklahoma; (3)
              information from Steve Shute on March 5, 2000, that Mr.
              Lloyd (a) manufactures methamphetamine, (b) purchases
              ephedrine in Oklahoma, (c) recently purchased a house in
              Lorraine, (d) drives two Ford vans, a blue one and a white
              one, (e) owns a business called the Last Chance Barbeque in
              Russell, and (f) has two people who distribute one ounce of
              methamphetamine weekly for him; and (4) information from
              Kenneth Peterson on March 24, 2000, that Mr. Lloyd (a)
              manufactured methamphetamine in his barbeque trailer, (b)
              traveled with Peterson to Oklahoma three months ago to
              purchase $6,000 of ephedrine, (c) recently purchased a house
              in Lorraine, (d) drives his vans out in the country and to the
              house in Lorraine and cooks the methamphetamine, and (e)
              often transports methamphetamine and cash in a blue money
              bag. Deputy Schneider also knew, based upon his training
              and experience, that drug dealers carry concealed weapons,
              drug money and contraband on their persons and in their
              vehicles.

       Without further belaboring the matter, we conclude, under the authorities above

cited, that the district court’s ruling that Schneider had such “reasonable suspicion” as

would justify Schneider’s continuing detention of Lloyd until he ran his narcotics dog

around the van, is supported by the record.

       In this appeal, Lloyd also challenges the sufficiency of Schneider’s affidavits upon

which a magistrate judge issued search warrants authorizing a search of Lloyd’s two

residences. In those affidavits, Schneider, in addition to detailing the “prior information”

                                              - 10 -
which he had concerning Lloyd, also set forth all the facts and circumstances surrounding

his stop of Lloyd’s van on March 26, 2000, and the evidence found in the van on that

occasion. We agree with the district court that the affidavits were sufficient to meet the

“probable cause” requirement of the Fourth Amendment. Much of counsel’s argument is

based on the assumption that the search of Lloyd’s van was unlawful. Having held that

the search of the van was lawful, this then is not a case of “fruit from a poisonous tree.”

Wong Sun v. United States, 371 U.S. 471 (1963) is inapplicable.

       Judgment affirmed.

                                                     Entered for the Court

                                                     Robert H. McWilliams
                                                     Senior Circuit Judge




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