1

The Honorable Karen Schreier, Chief Judge, United States District Court for

the District of South Dakota, adopting the report and recommendation of the

Honorable Veronica L. Duffy, United States Magistrate Judge for the District of South

Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2977

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United States of America, *

*

Appellee, *

* Appeal from the United States 

v. * District Court for the

* District of South Dakota.

Jonathan McCarty, *

*

Appellant. *

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Submitted: May 14, 2010

Filed: July 21, 2010

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Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Jonathan McCarty entered a conditional plea of guilty to possession of a

controlled substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(c). On appeal, McCarty contends that the district court1

 erred in failing to

grant his motion to suppress evidence. We affirm.
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I.

At approximately 5:30 p.m. on March 7, 2008, Trooper Matt Oxner of the

South Dakota Highway Patrol stopped McCarty for speeding as he was driving on

Interstate 90 near Rapid City, South Dakota. After asking McCarty for his driver’s

license and the vehicle’s registration, Oxner asked McCarty to sit in the front

passenger’s seat of the patrol car during the remainder of the stop. 

While McCarty sat in the patrol car, Oxner explained the reason for the stop and

engaged McCarty in a discussion about his travel itinerary. Oxner said that he was

going to issue McCarty a warning and then, while waiting for verification of

McCarty’s documents, asked McCarty if he had any drugs in the car. This line of

questioning made McCarty very nervous, whereupon Oxner encouraged him to be

honest about what was in the car. McCarty admitted that there was a small quantity

of marijuana—the butt of a marijuana cigarette—in the center console. Oxner

handcuffed McCarty and found the cigarette where McCarty said it would be. Oxner

then searched the entire vehicle and noticed markings on the underside of the gas tank,

suggesting to him that the tank had been removed. 

Oxner transported McCarty and his vehicle to a Highway Patrol garage. The

gas tank was removed and fourteen vacuum-sealed packages containing 5.489

kilograms of methylenedioxymethamphetamine (a.k.a. “ecstasy”) were found inside.

At approximately 8:40 p.m., Agent Jeff Goble of the South Dakota Division of

Criminal Investigation arrived at the garage to assist the investigation. Goble read

McCarty his Miranda rights and proceeded to question him. McCarty admitted to

smoking marijuana shortly before he began his trip. 

McCarty was indicted on one count of possession of a controlled substance with

intent to distribute. He moved to suppress his statements to Oxner during the traffic

stop and afterwards, as well as his statements to Goble at the Highway Patrol garage.
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He also moved to suppress the physical evidence derived from the traffic stop,

contending that there was not probable cause to search the vehicle, that the stop was

improperly extended, and that the search was unduly invasive.

At the suppression hearing, Oxner and Goble testified as to the circumstances

of McCarty’s arrest, as sketched above. Oxner explained why he expanded his

investigation beyond the initial traffic stop: McCarty stated that he was driving oneway from Seattle to Atlanta, a known drug route; McCarty had driven non-stop from

Seattle and planned to maintain a very fast pace, having rented the car for only three

days; McCarty was driving a rental car with out-of-state plates; the cost of the oneway car rental exceeded Oxner’s estimate of round-trip airfare; and remnants of fastfood and a small duffel bag were visible in the vehicle. McCarty testified that these

factors, in light of his experiences as a highway patrolman who had interdicted

numerous drug couriers traveling the same route, gave rise to a suspicion that

McCarty was transporting drugs. 

Seeking to dispel or verify this suspicion, Oxner asked McCarty about the

presence of drugs in the vehicle. In response, McCarty became increasingly nervous,

averred that he was a “good guy,” laughed, and said that there were no drugs in the

vehicle. Oxner stated that a canine unit could be used to detect drugs and then asked

about the presence of specific types of drugs in the vehicle. In response to Oxner’s

questions about marijuana, McCarty broke eye contact and lowered his voice,

whereupon Oxner asked McCarty if he was positive about there being no marijuana

in the vehicle. McCarty’s nervousness escalated rapidly, with his heart rate increasing

to the point at which his pulse was visible beneath his shirt. Oxner commented on

McCarty’s visible pulse and increasing signs of nervousness and encouraged him to

be “honest” about whether there were drugs in the vehicle. Oxner said that if McCarty

was forthright, Oxner would be as lenient with him as possible. At that point,

McCarty admitted to the presence of a “roach,” that is, a used marijuana cigarette, in
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the vehicle. Oxner handcuffed McCarty and, as stated above, found the marijuana

cigarette at the place specified by McCarty. 

Based upon this discovery, Oxner believed that he had probable cause to search

the entire vehicle for additional contraband. Upon inspection of the underside of the

vehicle, Oxner became suspicious that the gas tank had been “messed with” and

contained contraband, testifying that:

With this vehicle, the gas tank had scratch marks on it. . . . [T]here was

mud underneath the undercarriage of the Durango. On the gas tank it

was fairly clean. You could see scratch marks all the way across the gas

tank. You could see the two gas tank straps that hold the tank up itself

were clean; you could see smudge marks on them. On the two sides of

the straps are where the bolts secure the straps to the gas tank; they

[we]re very, very tooled.

Suppression Hr’g Tr. at 35-36. 

The magistrate judge recommended that the statements made to Trooper Oxner

and Agent Goble be admitted. The magistrate judge also recommended that the

physical evidence seized from the vehicle be admitted, because the pre-arrest

detention did not constitute a custodial interrogation, Oxner was justified in expanding

the traffic stop, McCarty’s admission of having some marijuana in the vehicle

established probable cause to search the entire vehicle, and the search of the gas tank

was not unduly invasive. The district court adopted the magistrate judge’s report and

recommendation in full and denied the motion to suppress. 

Pursuant to a conditional plea agreement, McCarty pleaded guilty. McCarty’s

plea agreement included a waiver of his right to appeal, which provided as follows:

The Defendant hereby waives all defenses and his right to appeal any

non-jurisdictional issues. The parties agree that excluded from this
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waiver is the Defendant’s right to appeal: (1) any decision by the Court

to depart upward pursuant to the sentencing guidelines as well as the

length of his sentence for a determination of its substantive

reasonableness should the Court impose an upward departure or an

upward variance pursuant to 18 U.S.C. § 3553(a); and (2) the adverse

determinations of the following pretrial motions: (a) the District Court’s

denial of the defendant’s motion to suppress dated October 7, 2008. 

R. 51-52. During McCarty’s plea colloquy, the district court asked him if he

understood that he was waiving his right to appeal, except for the two issues reserved

by the plea agreement. McCarty responded affirmatively. The district court sentenced

McCarty to 121 months’ imprisonment, following which McCarty filed this appeal.

II.

We review de novo the district court’s conclusions of law regarding a denial of

a motion to suppress evidence. United States v. Marquez, 605 F.3d 604, 609 (8th Cir.

2010). We review for clear error the district court’s findings of fact. Id.

A. Expansion of the Traffic Stop

McCarty argues that Oxner lacked an objectively reasonable basis for

expanding the traffic stop into a drug trafficking investigation. During a lawful traffic

stop, an officer may conduct a reasonable investigation. United States v. Ward, 484

F.3d 1059, 1061 (8th Cir. 2007). A reasonable investigation includes asking the

driver for his license and registration, requesting the driver to sit in the patrol car to

answer questions, verifying the driver’s identification and related documents, and

asking questions about the driver’s itinerary. Id. at 1061-62; United States v. Jones,

269 F.3d 919, 924-25 (8th Cir. 2001). The scope of a traffic stop can be expanded if

the driver’s answers and behavior “support suspicions unrelated to the traffic offense.”

Ward, 484 F.3d at 1062. “To continue to detain a vehicle’s occupants after the initial
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stop is completed, the officer must have been aware of particularized, objective facts

which, taken together with rational inferences from those facts, reasonably warrant

suspicion that a crime is being committed.” United States v. Shafer, __ F.3d __, 2010

WL 2519577, *3 (8th Cir. 2010) (internal punctuation omitted). “Whether an officer

has reasonable suspicion to expand the scope of a traffic stop is determined by looking

at the totality of the circumstances, in light of the officer’s experience.” Id. (quoting

United States v. Gill, 513 F.3d 836, 844 (8th Cir. 2008)).

Oxner’s expansion of the traffic stop was justified. As recounted above, Oxner

initially asked McCarty basic background questions about his itinerary. Based upon

a number of factors and in light of his experience, Oxner became suspicious that

McCarty was transporting contraband. Oxner was aware of particularized, objective

facts that gave rise to his suspicion that a crime was being committed, including

McCarty’s compressed travel schedule along a known drug route, his outwardly

puzzling decision to rent a car for a one-way trip at substantial expense, and his

manifestation of atypical nervousness. Considered in the light of Oxner’s experience,

the totality of the circumstances suggested that McCarty was committing a crime.

Accordingly, Oxner’s suspicion was reasonably warranted and he was justified in

expanding the traffic stop to ask McCarty about the presence of drugs in the car.

B. Statements Made to Oxner and Goble

McCarty argues that the district court erred by admitting the statements he made

to Oxner before being handcuffed and the statements he made to Goble after receiving

a Miranda warning. We disagree. It was permissible for Oxner to ask McCarty basic

investigatory questions at the time of the traffic stop and to expand the scope of these

questions in light of his reasonable suspicions. “When an officer develops a

reasonable, articulable suspicion of criminal activity during a traffic stop, he has

justification for a greater intrusion unrelated to the traffic offense.” United States v.

Pereira-Munoz, 59 F.3d 788, 791 (8th Cir. 1995) (internal citations and punctuation
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omitted). “Police officers are not required to ignore their reasonable suspicions.

Rather, they are permitted to graduate their responses to the demands of any particular

situation.” Id. (internal punctuation omitted).

Based upon his reasonable, articulable suspicions about drug trafficking, Oxner

was entitled to expand the scope of the questioning beyond the original traffic offense.

Oxner graduated his response to the evolving circumstances and employed the least

intrusive means to verify or dispel his suspicion by asking McCarty to be truthful

about the presence of drugs in the car. This line of questioning was reasonable in

these circumstances, and the situation did not amount to a custodial interrogation.

Thus, it was not error to admit the statements McCarty made to Oxner before he was

handcuffed. Likewise, it was not error to admit McCarty’s post-Miranda statements

to Goble. As the district court determined, McCarty was properly informed of his

Miranda rights, and he voluntarily, knowingly, and intelligently waived those rights.

All statements made thereafter were properly admitted. 

C. Search of the Vehicle

McCarty argues that the search of the gas tank was improper because it

exceeded the scope of probable cause. We disagree. McCarty admitted that there was

marijuana in his car. This admission established probable cause to search for the

marijuana. The discovery of the marijuana provided probable cause to search the

entire vehicle. United States v. Hernandez-Mendoza, 600 F.3d 971, 976 (8th Cir.

2010); United States v. Olivera-Mendez, 484 F.3d 505, 512 (8th Cir. 2007). A search

of every part of the vehicle that might contain contraband was authorized, because

drug traffickers are known to stow contraband in secret compartments. HernandezMendoza, 600 F.3d at 976. 

As recounted above, Oxner articulated a specific and objectively reasonable

basis for his suspicion that the gas tank contained contraband. The removal of the gas
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tank was completed as expeditiously as possible. Accordingly, removal of the gas

tank and inspection thereof was proper. Id. (“Probable cause to search a vehicle does

not dissipate simply because it takes a long time to complete a reasonable and

thorough search.”); see also United States v. Collins, 532 F.2d 79, 85 (8th Cir. 1976)

(holding that removal of vehicle from street to station house was proper because

“trunk could not be opened at the scene of the arrest”). 

On appeal, McCarty argues that (1) the duration of the stop gave Oxner

sufficient time to obtain a warrant to search the vehicle; (2) technological change has

eviscerated the rationale for the vehicle exception to the warrant requirement,

because—according to McCarty—Oxner could have easily acquired a telephonic

warrant; and (3) the vehicle exception to the warrant requirement articulated in United

States v. Ross, 456 U.S. 798 (1982), should be modified in light of new technology.

McCarty failed to raise these claims in his motion to suppress, and thus they were

waived under the terms of the plea agreement. Even if they were not waived,

McCarty would not be entitled to any relief under review for plain error because these

claims rely upon presumptions contrary to our precedent. See United States v.

Alverez, 235 F.3d 1086, 1089 (8th Cir. 2000) (upholding search under the automobile

exception to the warrant requirement); United States v. Brown, 49 F.3d 1346, 1350

(8th Cir. 1995) (same). Thus, any error below was neither clear nor obvious. See

Marquez, 605 F.3d at 611 (setting forth the standard for relief on review for plain

error).

D. Equal Protection

For the first time on appeal, McCarty argues that the evidence and pre-Miranda

statements derived from the traffic stop should be suppressed because expansion of

the traffic stop was “the product of selective law enforcement practices which violate

constitutional guarantees of equal protection.” Appellant’s Br. 38. McCarty, who is
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African-American, alleges that race was a factor in Oxner’s decision to expand the

traffic stop.

McCarty’s plea agreement, however, included a waiver of his right to appeal

any non-jurisdictional issues, aside from a sentencing decision to depart or vary

upwards from the guidelines and the adverse determinations of the district court with

regard to his motion to suppress. McCarty did not raise an equal protection claim in

his motion to suppress. Absent a miscarriage of justice, we will enforce a waiver of

a right to appeal. United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en

banc). McCarty has not presented a racial profiling claim worthy of our consideration.

His argument is cursory, speculative, and unsubstantiated. Indeed, the record contains

no evidence that McCarty’s race was a factor in expanding the traffic stop. Moreover,

as discussed above, several factors justified expanding the traffic stop. Accordingly,

we will enforce McCarty’s waiver. Thus, McCarty is entitled to no relief on this

claim. 

III.

The judgment is affirmed.

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