                  United States Court of Appeals
                    FOR THE EIGHTH CIRCUIT



    No. 97-1074


United States of America,       *
                                *
              Appellee,         *
                                *
        v.                      *
                                *
Roderick S. Pipes,              *
                                *
             Appellant.         *


                                    Appeals    from   the   United
States
    No. 97-1493                     District Court for the
                                                 District       of
Nebraska.

United States of America,       *
                                *
             Appellee,          *
                                *
        v.                      *
                                *
LaSalle N. Waldrip,             *
                                *
             Appellant.         *


                  Submitted:    June 10, 1997

                            Filed:    September 11, 1997
Before MURPHY and HEANEY, Circuit Judges, and BOGUE,1
District Judge.


HEANEY, Circuit Judge.

    Roderick S. Pipes and LaSalle N. Waldrip appeal from
their convictions for possession of cocaine base with
intent to distribute, arguing that the search of their
rental car violated the Fourth Amendment. Additionally,
Pipes challenges the district court’s finding that he
failed to make a threshold showing that the government
acted irrationally in refusing to file a motion for
downward departure for substantial assistance under
section 5K1.1 of the United States Sentencing Guidelines
(U.S.S.G.) and 18 U.S.C. § 3553(e).        We affirm the
district court on the Fourth Amendment issue. We reverse
Pipes’ sentence, however, and remand for an evidentiary
hearing to determine whether the government acted
irrationally in failing to request the downward
departure.

                                        I.

A.    Motion to Suppress

    In April, 1995, Nebraska State Patrol Trooper Jeffrey
Ward received a teletype message from the Utah State
Patrol that described two vehicles, stated that the
occupants had “known gang associations,” and advised law


      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
                                        2
enforcement to “investigate transportation controlled
substance” and “make own case.” Assisted by a computer
program, Ward estimated when the vehicles would arrive in
Nebraska and began a careful watch for them.       At the
suppression hearing, Ward admitted that his




                            3
plan if he saw the two vehicles was to keep them in his
view until he had an opportunity to stop them.

    Early the next morning, Ward saw two vehicles that
matched the descriptions in the teletype. He verified by
radar that the lead car was speeding and observed that
the other car was following at a constant speed.
Lancaster County Deputy Sheriff James Baird responded to
Ward’s call for assistance to stop the cars.         Ward
informed Baird that the two vehicles had been clocked for
speeding and that he had seen a teletype regarding
possible narcotics trafficking.     Ward stated that he
would pull over the lead car and instructed Baird to
cover the other vehicle, which was occupied by Pipes and
Waldrip.    Baird activated his lights and sirens and
shined his spotlight into the car.     Pipes and Waldrip
raised their hands and shrugged their shoulders, but did
not stop. Baird observed Waldrip lean out the passenger
side window and throw four bags containing a white
substance Baird believed to be narcotics. Nearly a half
mile later, Pipes and Waldrip pulled over.      After the
passengers exited the car, Baird saw a bag containing
what proved to be crack cocaine on the driver’s console
and a piece of rock cocaine on the floorboard in front of
the passenger seat.

    A grand jury indicted Pipes and Waldrip for
possession with intent to distribute fifty grams or more
of a substance containing cocaine base in violation of 21
U.S.C. § 841(a)(1). Pipes and Waldrip filed a motion to
suppress the evidence, arguing that the stop of their car
was pretextual and thus unreasonable. The district court
denied the motion.     Pipes and Waldrip conditionally

                            4
pleaded guilty to the charges, preserving their right to
appeal the district court’s denial of their suppression
motion.

    On appeal, Pipes and Waldrip argue that the stop and
subsequent search of their car violated their rights
under the Fourth Amendment.     They contend that Baird
lacked probable cause to stop them for speeding and that,
in any event, he used the traffic violation as a pretext
to search the vehicle for drugs. While Pipes and Waldrip
attempt to challenge the basis for the traffic stop, the
district court’s findings support that Baird




                            5
lawfully stopped the car for speeding, and we have no
basis to disagree with that conclusion. We also agree
with Pipes and Waldrip, however, that the officers’
actual motive in stopping the vehicle was to investigate
possible drug trafficking. Ward candidly admitted that
he was following the teletype’s instruction to “make own
case” and that he intended to follow the two cars until
he had a reason to stop them. Nonetheless, our court and
the Supreme Court have made clear that “[s]ubjective
intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.” Whren v. United States, 135
L. Ed.2d 89, 98 (1996); see, e.g., United States v.
Caldwell, 97 F.3d 1063, 1067 (8th Cir. 1996).        This
court has made clear that “any traffic violation, even a
minor one, gives an officer probable cause to stop the
violator. If the officer has probable cause to stop the
violator, the stop is objectively reasonable and any
ulterior motivation on the officer’s part is irrelevant.”
United States v. Bell, 86 F.3d 820, 822 (8th Cir. 1996).
Of course, officers must not selectively enforce the law
based on unconstitutional considerations, but such claims
fall under the Equal Protection Clause, not the Fourth
Amendment.   See Whren, 135 L. Ed. 2d at 98.      Officer
Baird attempted to stop the vehicle based on the
information he received from Ward that the vehicle had
been speeding.     The vehicle initially did not stop.
While following the vehicle, Baird saw one of the
passengers throw what he believed to be narcotics out of
the window.    After the car stopped, he saw the crack
cocaine on the driver’s console and the floorboard. We
thus agree with the district court that, under Whren,
Baird’s actions did not violate Pipes’ and Waldrip’s
Fourth Amendment rights.

                            6
B.   Motion to Compel

    Pipes argues that the district court erred in failing
to compel the government to move for a downward departure
for substantial assistance under section 5K1.1 of the
sentencing guidelines and 18 U.S.C. § 3553(e).         In
support of Pipes’ motion before the district court, his
attorney filed an affidavit outlining the events
following Pipes’ arrest and indictment. In January 1996,
Pipes entered into a plea agreement, which provided in
part that he would “truthfully disclose all information
regarding [his] activities and




                            7
those of others” and that “any cooperation provided by
[him] will be considered by the government” for a
downward departure. At the time of the agreement, the
government knew that Pipes’ role in the drug-trafficking
offense was minor and that any information he did have
would likely be limited. In addition to the written plea
agreement, a federal prosecutor later assured Pipes that
if he provided helpful information, the government would
make a downward departure motion on his behalf.

    Pipes gave the Nebraska State Patrol a proffer
agreement regarding his knowledge of illegal activities
within Nebraska.    He later met with an FBI agent in
Kansas who was investigating the driver of the lead car,
Akale Green, for controlled substance violations in the
Western District of Oklahoma. Pipes identified Green in
a photo lineup and identified others as possibly related
to the drug operation. The FBI agent stated that Pipes
was very cooperative in answering all of his questions,
that the information appeared truthful and accurate as it
corroborated other evidence, and that the information
would be helpful in the case against Green.

    A grand jury indicted Green in Oklahoma.       Leslie
Maye, the United States Attorney assigned to Green’s
case, requested that Pipes’ sentencing be postponed to
give Pipes an incentive to testify at Green’s trial.
Shortly thereafter, Green entered into a plea agreement
and Pipes’ testimony became unnecessary. In September
1996, Maye wrote the United States Attorney’s office in
Nebraska that the Oklahoma office could not support a
motion for downward departure on behalf of Pipes because,
“based on the totality of the investigation,” they had

                            8
determined that “the information was not completely
correct and Waldrip and Pipes were not being altogether
truthful and forthcoming in their debriefing.” (Letter
from Maye to Rothrock of 9/24/96.)

    Based on the letter from the Oklahoma office, the
government refused to move for a downward departure on
behalf of Pipes. Pipes moved to compel the government to
file the motion and sought an evidentiary hearing to
demonstrate that the prosecutor’s refusal was irrational.
The district court denied both motions.




                            9
    As the district court correctly stated, the
government’s refusal to file a substantial-assistance
motion is reviewable only when the defendant makes a
substantial threshold showing that the refusal was
irrational or based on an unconstitutional motive. See
Wade v. United States, 504 U.S. 181, 185-87 (1992). The
district court acknowledged that Pipes presented “some
reliable information” to support his claim that the
government acted irrationally.   It concluded, however,
that Pipes’ showing was not sufficient to support an
evidentiary hearing. We disagree.

    Citing United States v. Nicolace, 90 F.3d 255, 259
(8th Cir. 1996) and United States v. Johnigan, 90 F.3d
1332, 1339 (8th Cir. 1996), the district court stated
that the general statement of a prosecutor or law
enforcement officer that a defendant was unbelievable or
unreliable is normally a sufficient reason to deny a
defense motion to compel the government to file a motion
for downward departure. While we have no quarrel with
that as a general principle, this case differs greatly
from those cited by the district court. In Nicolace, the
defendant’s plea agreement did not include any provisions
regarding   cooperation.      The   FBI  questioned   the
defendant’s candor during their discussions with him, and
nothing developed from the information the defendant
provided to the government.       90 F.3d at 259.      In
Johnigan, although the defendant originally entered into
a plea agreement, he later changed his plea to not guilty
and the government “specifically described his assistance
as having negative value.” 90 F.3d at 1339.




                           10
    In contrast, Pipes had a written cooperation
agreement   with  the   government,  which   was  later
strengthened by the oral assurances of a Nebraska
prosecutor. It is also undisputed that Pipes cooperated
with the government and that this cooperation, at least
in part, contributed to the government’s case against
Green. Thus, Pipes’ claim that he provided substantial
assistance to the government is supported by more than
his mere assertion:   an FBI agent so stated and Maye
implicitly confirmed as much when she requested that
Pipes’ sentencing be postponed so that he could testify
at Green’s trial. In September, Maye did an about-face,
communicating to the Nebraska office




                          11
that Pipes’ information was not completely correct and
that he was not being altogether truthful. The Nebraska
prosecutor then relied on this conclusory letter from
Maye, the Oklahoma prosecutor, without questioning the
basis of her office’s drastic change in position, and
refused to move for a downward departure. The district
court was not able to question the Oklahoma prosecutor
about the specifics underlying the decision as Maye was
not before the court.        Under these circumstances,
particularly the lack of any concrete explanation for the
Oklahoma prosecutor’s decision, the district court should
have conducted an evidentiary hearing to determine
whether the Nebraska prosecutor’s failure to file a
downward-departure motion was irrational.       Thus, we
reverse Pipes’ sentence and remand for an evidentiary
hearing on the question of whether Pipes had, in fact,
been untruthful in his dealings with the Oklahoma
prosecutor.

                          II.

    Accordingly, we affirm      Pipes’ and Waldrip’s drug
convictions, but reverse the    district court’s denial of
Pipes’ motion to compel and      remand for an evidentiary
hearing consistent with this    opinion.

MURPHY, Circuit Judge, concurring in part and dissenting
in part.

    I concur in the affirmance of appellants' drug
convictions but respectfully dissent from the remand for
an evidentiary hearing on the government's decision not
to move for a downward departure for Pipes.

                           12
    Pipes entered into a plea agreement with the
government that promised him certain benefits in exchange
for his plea of guilty. The agreement provided that "any
cooperation provided by you will be considered by the
government under sentencing guidelines § 5K1.1 and 18
U.S.C. § 3553(e)." This promise obligated the government
to consider the nature and value of any cooperation, but
it did not require a motion for




                           13
downward departure. See United States v. Kelly, 18 F.3d
612, 617 (8th Cir. 1994). Although Pipes now claims that
the agreement was orally modified by a statement of a
prosecutor on or before January 11, 1996, he testified at
the change of plea hearing on January 18, 1996 that no
promises had been made to him other than those included
in the written agreement. The district court did not err
in concluding that the government was not obligated to
move for a downward departure.      See United States v.
Knight 96 F.3d 307, 309 (8th Cir. 1996).

    In order to obtain an evidentiary hearing Pipes had
the burden to make a substantial showing that the
decision not to move for a downward departure was
irrational or in bad faith. See Wade v. United States,
504 U.S. 181, 187 (1992); Kelly, 18 F.3d at 617-18.
Pipes offered his affidavit stating that a prosecutor and
an FBI agent in Oklahoma had told him that information he
gave would be helpful in a case against Akale Green. A
responsive   affidavit   indicated   that  the   Oklahoma
prosecutor in charge of the Green investigation
subsequently concluded that Pipes had not been fully
truthful or forthcoming during the investigation. She
recommended against a downward departure, and the
Nebraska prosecutor relied upon that recommendation in
refusing to move for a departure. Pipes did not meet his
burden of showing bad faith or irrational action by the
government so the district court did not err in denying
the request for an evidentiary hearing. See Wade, 504
U.S. at 187; U.S. v. Johnigan, 90 F.3d 1332, 1339 (8th
Cir. 1996). For these reasons the district court did not
err in denying Pipes' motion for an evidentiary hearing.

    Accordingly,   I would affirm the judgment in all
respects.
                           14
A true copy.

    Attest.

        CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                       15
