ISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH LYONS,
Defendant - Appellant.
No. 06-3111
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 03-CR-40144-01-RDR)
Submitted on the briefs:
Eric F. Melgren, United States Attorney, and James A. Brown, Assistant United
States Attorney, Topeka, Kansas, for Plaintiff - Appellee
Michael G. Highland, Bonner Springs, Kansas, for Defendant - Appellant.
Before OBRIEN, HOLLOWAY and HOLMES, Circuit Judges.
OBRIEN, Circuit Judge.
This case involves a vehicle stop, which led to the discovery of fifty-one
pounds of cocaine hidden in the spare tire. Kenneth Lyons appeals from the -2-
district courts denial of his motion to dismiss the indictment for want of a speedy
trial and denial of his motion to suppress evidence. In his plea agreement, he
waived his right to appeal from the resolution of the speedy trial issue and
therefore we dismiss that portion of the appeal. His suppression issues
(justification for the stop, continued detention after the stop, voluntariness of his
consent to search and probable cause to search) are properly presented. We
affirm with respect to the suppression issues.
I. FACTUAL BACKGROUND
On December 11, 2003, at approximately 10:00 p.m., Kansas Highway
Patrol Trooper Jarett Ranieri was parked in the median of Interstate 70 (I-70) in
Greary County, Kansas. His vehicle faced Eastbound I-70. Trooper Andrew
Dean was parked next to Ranieri. Both troopers had their vehicles headlights on;
there were no other lights on the roadway. Because Eastbound I-70 sits higher
than the median, Ranieri and Dean were parked on an incline, causing their
vehicles headlights to illuminate the undercarriages of passing vehicles.
While parked in the median, Ranieri noticed a white Chevy Trailblazer.
The body of the vehicle was dirty and salty but the spare tire attached to its
undercarriage was clean and didnt have a spec of road film on it at all. (R.
Vol. 3 at 16.) Based on the difference in weather conditions between that day
(clear and dry) and the previous one (snowy/rainy), Ranieri suspected the spare
tire had been placed on the vehicle that day. He also suspected the tire might -3-
contain contraband because in his experience spare tires are frequently used to
hide drugs. Ranieri decided to follow the vehicle and run its license plate
number.
Once Ranieri caught up with the vehicle, he noticed the license plate was
so dirty it was unreadable. Moving closer, he was able to read the plate but not
the expiration sticker. Ranieri also noticed the spare tire was hanging lower than
normal. Because the dirty plate and tag violated Kansas traffic law (Kan. Stat.
Ann. § 8-133) and based on his suspicions regarding the spare tire, Ranieri
decided to pull the vehicle over. He activated his emergency lights.
Once the vehicle pulled over, Ranieri walked up to it from behind and
wiped away the dirt covering the expiration tag and the name of the issuing state
(Virginia) with his fingers. He then approached the drivers side window; Lyons
was sitting in the drivers seat. Ranieri told Lyons that he had stopped his vehicle
because its expiration tag was covered with dirt and unreadable and that he had
cleaned the tag. Lyons and his passenger, Letty Sierra De Maldonado, informed
Ranieri they had traveled to Denver, Colorado, for vacation and were heading
back to Fort Lauderdale, Florida. Ranieri asked for Lyons drivers license and
the vehicles registration. Lyons gave him his Florida drivers license and the
vehicles rental agreement. While standing at the drivers side window, Ranieri
noticed two cellphones (which in his experience are used by drug traffickers to
communicate) and a radar detector; he also smelt air freshener (which in his -4-
experience is often used to mask the smell of drugs).
On the way back to his patrol car to verify Lyons drivers license, Ranieri
took a closer look at the spare tire, which was illuminated by his patrol vehicles
headlights. He noticed the rim was salty and dirty but the actual tire was clean.
He also observed fingerprints on the tire and tool marks where the rim and tire
meet. This raised Ranieris suspicions that the tire had been placed on the rim
that day. Ranieri further noticed the tire was a different brand and larger than the
four tires on the vehicle.
Once in his patrol vehicle, Ranieri performed a criminal history check on
Lyons and filled out a warning ticket. Ranieri learned Lyons had a criminal
history involving drug possession and trafficking. He also noticed the rental
agreement was two weeks overdue. While Ranieri was in his patrol vehicle,
Trooper Dean approached. Ranieri informed him he believed the spare tire
contained contraband and told him to look at the tire. Dean complied and
confirmed Ranieris suspicions that the tire had been removed from the vehicle
and there was something in it.
Ranieri returned to the drivers side window and handed Lyons his drivers
license, the rental agreement and the warning ticket. Once he returned the
paperwork, Ranieri thanked Lyons and De Maldonado for their time and took a
step back from the vehicle. De Maldonado then asked Ranieri where the nearest
car wash was located; Ranieri took a step toward the vehicle and told them the -5-
closest car wash was in Topeka. Ranieri stepped back from the car again. The
following discussion ensued:
Ranieri:
I was just going to ask you before you take off, I noticed you
kind of have a history . . . of drugs and stuff, do you . . . have
anything illegal in here . . . .
Lyons:
No.
Ranieri:
No type of illegal drugs or anything?
Lyons:
No.
Ranieri:
Can I look in, can I look in the back?
Lyons/De Maldonado: [Inaudible]
Ranieri:
I was kind of wondering about that rental agreement, is that an
old one? Or is it just . . . .
Lyons:
I had it extended because . . . .
Ranieri:
Oh, did you call and get it extended? Okay, well that makes
sense then. But you wouldnt have anything illegal . . . in here
. . . ?
Lyons:
No, not at all, sir.
Ranieri:
Any type of drugs, cocaine, marijuana, or anything like that?
Lyons:
No.
Ranieri:
Okay, can I look in the back, would you mind if I looked in the
back?

Lyons:
Go ahead.
Ranieri:
Okay.
(R. Supp. Vol. II at 22:08:12-22:08:47.) 1
ASP stands for Armament Systems and Procedures, Inc., a company
which offers police officer training and products. See http://www.asp-net.com
-6-
Ranieri went to the back of the vehicle to look for the tools to lower the
spare tire. As he was searching for the tools, he discovered four cans of Fix-A-
Flat Tire, which further raised his suspicions regarding the spare tire because he
had never seen Fix-A-Flat Tire in a rental vehicle. That led him to believe Lyons
and De Maldonado were concerned about getting a flat tire because the spare tire
was inoperable. Unsuccessful in finding the tools to lower the spare tire, Ranieri
retrieved a stethoscope from his patrol vehicle. He performed an echo test on
the tire with the stethoscope, which involves hitting it with an object and noting
the sound. (R. Vol. 3 at 34.) A normal tire will project a loud ring when hit
whereas a tire with something in it will project a low thud. When Ranieri hit the
tire with his ASP
1
baton, he heard a low thud.
Ranieri then asked Lyons if he knew where the tools to release the spare
tire were located. Lyons stated he did not know. Ranieri eventually discovered
the tools under the rear bench seat. Using the tools, Ranieri lowered the spare
tire. When he did so the vehicle rose up indicating the tire was very heavy,
reinforcing Ranieris suspicion that drugs were hidden inside. Once the tire was
lowered Ranieri pulled it from under the vehicle. It was extraordinarily heavy.
Using a knife, Ranieri cut the tire open, discovering fifty-one pounds of cocaine.
The traffic stop was captured by the video camera in Ranieris patrol -7-
vehicle. Although normally the camera begins recording when the vehicles
emergency lights are activated, the cameras videotape was stopped on another
recorded traffic stop Ranieri had been watching before pulling over Lyons
vehicle. As a result, to avoid taping over the other traffic stop, the camera
automatically fast-forwarded to a clean portion of tape before beginning to record
in this case. Because of that delay the camera did not begin recording until after
Ranieri was already at the drivers side windowafter he had cleaned the license
plate and expiration tag. The record is confounded by another problem.
Although Ranieri wears a microphone, he forgot to activate it until he approached
the vehicle the second time to return Lyons paperwork. Therefore, the videotape
has no audio until this time.
II. PROCEDURAL BACKGROUND
Lyons was indicted for possession with intent to distribute more than five
kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18
U.S.C. § 2 (Count I) and conspiracy to possess with intent to distribute in excess
of five kilograms of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 and
18 U.S.C. § 2 (Count II). He filed a motion to dismiss the indictment, arguing the
allegedly prejudicial delay between the filing of the indictment and the time he
made his initial appearance violated his speedy trial rights. He also filed a
motion to suppress evidence, claiming the stop of his vehicle, his subsequent
detention and the search of his vehicle and its spare tire were all unlawful under -8-
the Fourth Amendment.
The district court held a hearing on Lyons motions; Ranieri was the only
witness. The parties also submitted