Argued April 11, 2013.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-CR-00085-JMS-DML-1 -- Jane E. Magnus-Stinson, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Melanie C. Conour, Attorney, Steven D. DeBrota, Attorney, Doris L. Pryor, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN.
For JOHN A. PETERS, III, Defendant - Appellant: Christopher S. Carroll, Attorney, Aurora, IL.
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
Rovner, Circuit Judge.
John A. Peters, III, pled guilty to one count of conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § § 841(a)(1) and 846. He reserved his right to appeal the district court's denial of his motion to suppress evidence discovered during the search of a car in which he was a passenger. We affirm.
On April 5, 2011, Peters was a passenger in a maroon Toyota Scion on Interstate 70 in Indiana. The Scion was traveling behind a white GMC Denali and both cars displayed Ohio license plates. For reasons unrelated to this appeal, the cars aroused the suspicion of Officer Chris Borgman, a Greenfield police officer assigned to a multi-jurisdictional task force that patrolled Interstate 70 in Hancock and Marion Counties in Indiana. Officer Borgman decided to follow the Denali and he enlisted Deputy Nick Ernstes of the Hancock County Sheriff's Department to watch the Scion. Eventually, Officer Borgman decided to pull over the Denali, which was found to contain heroin and other evidence of drug trafficking. A passenger in the Denali, Aaron Holmes, later filed a motion to suppress the evidence found in that car. The district court discredited Officer Borgman's version of the events of that day as " too improbable" and " not established by a preponderance of the evidence," and granted Holmes' motion to suppress. We therefore do not rely on Officer Borgman's testimony in assessing Peters' claim and turn to Deputy Ernstes' account of the events.
After being alerted to the cars by Officer Borgman, Deputy Ernstes approached the Scion and noticed that it was approximately fifty to seventy-five feet behind the Denali. The Scion was traveling at approximately sixty to sixty-four miles per hour. The combination of the high speed and short distance allowed for less than two seconds' braking time between the vehicles, and Deputy Ernstes believed that the driver of the Scion, Cordell Adams, was violating an Indiana statute by following too closely. See Ind. Code § 9-21-8-14. Deputy Ernstes decided to pull over
the Scion. When the deputy activated his emergency lights, Adams immediately pulled over.
The deputy told Adams that he stopped the car because it was following too closely and Adams apologized. Adams denied that he was traveling with another vehicle, told the deputy that he had left his license at home, and said that he was driving only because his passenger, Peters, had become too tired. Deputy Ernstes then approached the passenger side of the vehicle to request identification and vehicle registration. When Peters lowered the window, Deputy Ernstes smelled burnt marijuana and saw small green particles that the deputy believed to be marijuana on Peters' clothing. Peters claimed that the particles came from a cigar, but a closer look confirmed the deputy's belief that the particles were marijuana. Contrary to Adams' claim that the Scion was not associated with any other vehicle, Peters told the deputy that they were traveling with the white Denali. Based on the marijuana smell, Deputy Ernstes decided to search the Scion. In response to questions, Peters told Deputy Ernstes that he had previously been arrested for carrying a concealed weapon. For safety reasons, the deputy decided to handcuff Peters and pat him down. The deputy recovered a large amount of cash from Peters' pocket, totaling more than $2500. He then placed Peters in a patrol car and searched the Scion. He found a marijuana stem in the front passenger area, and again encountered a marijuana odor, this time ...