United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 97-1074

United States of America, *
* Appellee, *

*
v. *
* Roderick S. Pipes, *
* Appellant. *

Ap peals from the Unite d States No. 97-1493 District Court for the District o f Nebraska. United States of America, *
* Appellee, *

*
v. *
* LaSalle N. Waldrip, *
* Appellant. *

Submitted: June 10, 1997 Filed: September 11, 1997The Honorable Andrew W. Bogue, United S tates District Judge for the District 1 of South Dakota, sitting by designation.

2 Befor e MURPHY and HEANEY, Circuit Judges, and BOGUE, 1 District Judge.

HEANEY, Circuit Judge.
Roderick S. Pipes an d LaSalle N. Waldrip appeal from thei r convictions for possession of cocaine base wit h inte nt to distribute, arguing that the search of thei r rental car violated the Fourth Amendment. Additionally, Pipe s challenges the district court’s finding that h e fail ed to make a threshold showing that the governmen t acted irrationally in refusing to file a motion fo r downward departure for substantial assistance unde r section 5K 1.1 of the United States Sentencing Guidelines (U .S.S.G.) and 18 U.S.C. § 3553(e). We affirm th e district court on the Fourth Amendment issue. We reverse Pipe s’ sentence, however, and remand for an evidentiar y hearing to determine whether the government acte d irrat ionallyin failing to request the downwar d departure.

I.

A. Motion to Suppress

InApril, 1995, Nebraska State Patrol Trooper Jeffre y Wa rd received a teletype message from the Utah Stat e Patr ol that described two vehicles, stated that th e occupants had “known gang associations,” and advised law3

enf orcement to “investigate transportation controlle d substan ce” and “make own case.” Assisted by a compute r program, Ward estimated when the vehicles wou ld arrive in Nebraska and began a careful watch for them. At th e suppression hearing, Ward admitted that his4

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

Ea rlythe next morning, Ward saw two vehicles tha t matched the descriptions in the teletype. He verified by radar that the lead car was speeding and observed tha t the ot her car was following at a constant speed

. Lancaster County Deputy Sheriff James Baird responded to Wa rd’s call for assistance to stop the cars. War d informed Baird that the two vehicles had beenclocked for speeding and that he had seen a teletype regardin g poss ible narcotics trafficking. Ward stated that h e woul d pull over the lead car and instructed Baird t o cover the other vehicle, which was occupied by Pipes and Waldr ip. Baird activated his lights and sirens an d shine d his spotlight into the car. Pipes and Waldri p raised the ir hands and shrugged their shoulders, but did not stop. Baird observed Waldrip lean out the passenger side window and throw four bags containing a whit e substance Baird believed to be narcotics. Nearly a half mile later, Pipes and Waldrip pulled over. After th e passeng ers exited the car, Baird saw a bag containin g what pr oved to be crack cocaine on the driver’s consol e and a piece of rock cocaine on the floorboard in front of the passenger seat.

A grand jury indicted Pipes and Waldrip fo r possessionwith intent to distribute fifty grams or more of a substance containing cocaine base in vio lation of 21 U.S.C. § 8 41(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 di strict court deni ed the motion. Pipes and Waldrip conditionall y5

pleaded gu ilty to the charges, preserving their right to appe al the district court’s denial of their suppressio n motion.
On appeal, Pipes and Waldrip argue that the stop and subs equent search of their car violated their right s
un der the Fourth Amendment. They contend that Bair d lacked probable cause to stop them for speedi ng and that, in any eve nt, 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 Baird6

lawfu llystopped the car for speeding, and we have n o basis to disagree with that conclusion. We also agre e with Pipes and Waldrip, however, that the officers ’ actual mot ive in stopping the vehicle was to investigate poss ible drug trafficking. Ward candidly admitted tha t he was fol lowing the teletype’s instruction to “make own case” and that he intended to follow the two cars unti l he had a reason to stop them. Nonetheless, o ur court and the Supreme Court have made clear that “[s]ubjectiv e int entions play no role in ordinary, probable-caus e Fourth Ame ndment 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). Thi s court has made clear that “any traffic violation, even a minor one, gives an officer probable cause to stop th e violator. If the officer has probable cause to stop the viol ator, the stop is objectively reasonable and an y ulterior motivation on the officer’s part is irrelevant.” United Sta tes 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 Fourt h Amendment

. See Whren , 135 L. Ed. 2d at 98. Office r Baird attempted to stop the vehicle based on th e info rmation he received from Ward that the vehicle ha d been speeding. The vehicle initially did not stop

. Whi le following the vehicle, Baird saw one of th e passengers throw what he believed to be narcotics out of the window. After the car stopped, he saw the crac k cocaine on the driver’s console and the floorboard. W e thus ag ree with the district court that, under Whren , Bair d’s actions did not violate Pipes’ and Waldrip’ s Fourth Amendment rights.7

B. Motion to Compel
Pipes argues that the district court erred in failin g to compel the government to move for a downwa rd departure for substantial assistance under section 5K1.1 of th e sentencing guidelines and 18 U.S.C. § 3553(e). I n support of Pipes’ motion before the district court, hi s attorneyfiled an affidavit outlining the event s following Pipes’ arrest and indictment. In J anuary 1996, Pipe s entered into a plea agreement, which provided i n part that he would “truthfully disclose all informatio n regarding [his] activities and8

thos e of others” and that “any cooperation provided b y [hi m] will be considered by the government” for a downwa rd departure. At the time of the agreement, th e government knew that Pipes’ role in the drug-trafficking offens e was minor and that any information he did hav e would likely be limited. In addition to the written plea agreement, a federal prosecutor later assured Pipes that if he prov ided helpful information, the government would make a downward departure motion on his behalf.
Pipes gave the Nebraska State Patrol a proffe r agreement regarding his knowledge of illegal activitie s withi n Nebraska. He later met with an FBI agent i n Kansas who was investigating the driver of the lead car, Akal e Green, for controlled substance violations in th e Western Di strict of Oklahoma. Pipes identified Green in a photo li neup and identified others as possibly related to th e drug operation. The FBI agent stated that Pipe s
was very cooperative in answering all of his questions , that the information appeared truthful and ac curate as it
corro borated other evidence, and that the informatio n would be helpful in the case against Green.

Agrand jury indicted Green in Oklahoma. Lesli e Maye , the United States Attorney assigned to Green’ s
case , requested that Pipes’ sentencing be postponed t o gi ve Pipes an incentive to testify at Green’s trial

. Shor tlythereafter, Green entered into a plea agreemen t and Pipes’ testimony became unnecessary. In Septembe r 1996, Maye wrote the United States Attorney’s office i n Nebrask a that the Oklahoma office could not support a motion for downward departure on behalf of Pi pes because, “bas ed on the totality of the investigation,” they ha d9

det ermined that “the information was not completel y correct and Waldrip and Pipes were not being altogethe r trut hful and forthcoming in their debriefing.” (Lette r from Maye to Rothrock of 9/24/96.)

Based on the letter from the Oklahoma office, th e gove rnment refused to move for a downward departure o n behalf of Pipes. Pipes moved to compel the g overnment to fi le the motion and sought an evidentiary hearing t o demonstrate that the prosecutor’s refusal was irrational. The district court denied both motions.10

As the district court correctly stated, th e government’s refusal to file a substantial-assistanc e
mo tion is reviewable only when the defendant makes a
su bstantial threshold showing that the refusal wa s irrational or based on an unconstitutional motive. Se e Wade v. Un ited States , 504 U.S. 181, 185-87 (1992). The district court acknowledged that Pipes presented “som e reli able information” to support his claim that th e government acted irrationally. It concluded, however , th at Pipes’ showing was not sufficient to support a n evidentiary hearing. We disagree.

Ci ting United States v. Nicolace , 90 F.3d 255, 25 9 (8th C ir. 1996) and United States v. Johnigan , 90 F.3 d 1332, 1 339 (8th Cir. 1996), the district court state d tha t the general statement of a prosecutor or la w enforcemen t officer that a defendant was unbelievable or

un reliable is normally a sufficient reason to deny a defense mo tion to compel the government to file a motion for do wnward departure. While we have no quarrel wit h that as a general principle, this case differs greatl y from those cited by the district court. In N icolace , the defendant’s plea agreement did not include an y provisions rega rding cooperation. The FBI questioned th e defendant’s candor during their discussions w ith him, and noth ing developed from the information the defendan t provided to the government. 90 F.3d at 259. I n Johnigan , although the defendant originally entered into a plea agreement, he later changed his plea t o not guilty and the government “specifically described hi s assistance as having negative value.” 90 F.3d at 1339.11

In contrast, Pipes had a written cooperatio n agre ement with the government, which was late r stre ngthened by the oral assurances of a Nebrask a prosecutor . It is also undisputed that Pipes cooperated with the government and that this cooperation, at leas t in p art, contributed to the government’s case agains t Green. Thus, Pipes’ claim that he provided substantia l assi stance to the government is supported by more tha n his mere assertion: an FBI agent so stated and May e impl icitlyconfirmed as much when she requested tha t Pipes’ sentencing be postponed so that he could testif y at Green’s trial. In September, Maye did an about-face, communicating to the Nebraska office12

that Pipes’ information was not completely correct an d that he wa s not being altogether truthful. The Nebraska pros ecutor then relied on this conclusory letter fro m Maye, the Oklahoma prosecutor, without questioning th e basis o f her office’s drastic change in position, an d refused to move for a downward departure. The distric t
cour t was not able to question the Oklahoma prosecuto r about the specifics underlying the decision as Maye wa s not before the court. Under these circumstances , particularly the lack of any concrete explana tion for the Oklahoma prosecutor’s decision, the district court should ha ve conducted an evidentiary hearing to determin e whet her the Nebraska prosecutor’s failure to file a dow nward-departure motion was irrational. Thus, w e
reve rse Pipes’ sentence and remand for an evidentiar y hearin g on the question of whether Pipes had, in fact , been untruthful in his dealings with the Oklahom a prosecutor.

II.
Accordingly, we affirm Pipes’ and Waldrip’s dru g
conv ictions, but reverse the district court’s denial o f Pipes’ motion to compel and remand for an evidentiar y hearing consistent with this opinion.

MURPHY, Ci rcuit Judge, concurring in part and dissenting in part.

I concur in the affirmance of appellants' dru g conviction s but respectfully dissent from the remand for
an e videntiary hearing on the government's decision no t to move for a downward departure for Pipes.13

Pipes entered into a plea agreement with th e government that promised him certain benefits in exchange for his plea of guilty. The agreement provid ed that "any coopera tion provided by you will be considered by th e gove rnment under sentencing guidelines § 5K1.1 and 1 8 U.S.C. § 3553(e)." This promise obligated th e government to conside r the nature and value of any cooperation, but it did not require a motion for14

downward d eparture. See United States v. Kelly , 18 F.3d 612, 617 (8th Cir. 1994). Although Pipes nowclaims that the a greement 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 n o promise s had been made to him other than those include d in the written agreement. The district court did not err in c oncluding that the government was not obligated t o move for a downward departure. See United States v

. Knight 96 F.3d 307, 309 (8th Cir. 1996).

In orde r to obtain an evidentiary hearing Pipes ha d the burden to make a substantial showing that th e dec ision not to move for a downward departure wa s irrat ional 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 pr osecutor and an FBI agent in Oklahoma had told him that in formation he gav e would be helpful in a case against Akale Green. A responsive affidavit indicated that the Oklahom a prose cutor in charge of the Green investigatio n subs equentlyconcluded that Pipes had not been full y trut hful or forthcoming during the investigation. Sh e recommended against a downward departure, and th e Nebraska prosecutor relied upon that recommendation i n refusing t o move for a departure. Pipes did not meet his burden of showing bad faith or irrational action by th e governm ent so the district court did not err in denyin g the re quest for an evidentiary hearing. See Wade , 50 4 U.S. at 187; U.S. v. Johnigan , 90 F.3d 1332, 1339 (8t h Cir. 1996). For these reasons the district c ourt did not err in den ying Pipes' motion for an evidentiary hearing.
Accordingly, I would affirm the judgment in al l respects.15

A true copy.

Attest.

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

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