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

 
The Honorable Andrew W. Bogue, United States District Judge for the District 1

of South Dakota, sitting by designation.

2

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
3

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 
4

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
5

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 
6

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. 
7

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 
8

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
9

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. 
10

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.
11

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 
12

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.
13

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 
14

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.
15

A true copy.

Attest.

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