TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
"The Fourth Amendment Must Prevail."
Justice Antonin Scalia (1936 — 2016)
On July 16, 2015, the police stopped Gregory Heald for a traffic infraction, and then detained him for approximately forty-five minutes so that a K-9 team could conduct an open-air drug sniff of his vehicle. After the sniff, the police searched Heald's vehicle and discovered narcotics, paraphernalia, a firearm, and a cell phone with incriminating information on it. Heald was arrested, and now faces charges stemming from the incident. He argues, however,
I. BACKGROUND FINDINGS OF FACT
Heald filed his Motion to Suppress (Doc. 17) on November 17, 2015. The Court held a hearing on the Motion on January 27, 2016, which was later concluded on February 8, 2016. The findings of facts in this Opinion come from that hearing and the Court's review of the evidence submitted during it.
A. Suspicious Activity Reported at 2014 Ina Ave. #A
In July of 2015, a concerned citizen of Springdale, Arkansas began contacting Springfield Police Department ("SPD") detective John Mackey. The citizen advised Detective Mackey that her neighbor, Butch Greenlee, who resided at 2014 Ina Ave. #A, was engaging in suspicious activity. Namely, she told Detective Mackey that Greenlee would come home after being gone for several days, back his vehicle into his driveway, and remove the door panels from the vehicle. Shortly thereafter, vehicle traffic around the residence would increase, with vehicles coming and then leaving a short time later during all hours through late night and early morning. Detective Mackey believed that the behavior could be indicative of drug trafficking activity.
On July 16, 2015, the concerned citizen called Detective Mackey and informed him that Greenlee had just returned home after being gone for two days, had backed his vehicle in his driveway, and was removing the door panels from the vehicle. Acting on this information, Detective Mackey and Detective Cody Ross drove to the location and observed a tan Chevy Blazer backed in near a garage door with both side doors opened and someone kneeling beside the driver side door. The detectives then left to acquire an additional vehicle from which to conduct surveillance.
When they returned, the detectives saw that a silver Toyota Camry was parked in the driveway as well. Detective Mackey also spotted the concerned citizen standing outside of her home. At that point he called the citizen, who told him that she did not see the silver Toyota Camry arrive, but did observe some individuals taking packages from the areas of the Chevy Blazer's door panels into the garage. She also reported seeing a bald white man carry two packages out to the silver Toyota Camry. She then made eye contact with him, spooked him, turned around, and did
Shortly after returning to the scene, the detectives saw Heald exit Greenlee's apartment and drive away in the silver Toyota Camry. Detective Ross followed the vehicle to a Harp's Foods supermarket, and observed Heald enter the market. Approximately five minutes later, Heald returned from the market carrying a bag of groceries. The Court's review of the police radio recording revealed that Detective Ross at this point said "this guy may have just come and bought a bunch of sandwich baggies to be honest with you." Gov't Ex. 9, at 15:35. Later, Detective Ross states over the radio that something in the grocery bag "appeared to be" baggies but he "couldn't really tell from the distance [he] was at." Id. at 28:19.
Detective Ross followed Heald out of the parking lot and witnessed him commit several traffic infractions. Detective Ross then communicated the infractions to SPD officer Guillermo Sanchez,
B. The Initial Portion of the Stop: Investigating a Traffic Infraction
The mobile video recorder ("MVR")
Officer Sanchez returns to his vehicle and asks dispatch to run Heald's information. Dispatch responds that Heald has a valid driver's license.
C. The Middle Portion of the Stop: Detention to Further the Investigation into Drug Trafficking
At 16:00:39 a second officer appears on the MVR as he approaches Heald's vehicle along with Officer Sanchez. Officer Sanchez asks Heald to step out of the vehicle, informs him that he is not under arrest, and conducts a pat down. He then leads Heald and the other officer off-camera, to the side of the vehicles, where they remain until the K-9 unit arrives around 16:22:10.
SPD Officer Edgar Hernandez arrives with his K-9 partner, "Bosco," at 16:22:10, and begins their open-air drug sniff at 16:24:46.
D. Bosco and Officer Hernandez
Bosco is a 3 or 4 year-old German Shepard that was imported from Hungary by Criss Gardner, the owner of Von Klein Stein Working Dogs in Sherwood, Arkansas.
Bosco and Officer Hernandez were assigned to work the night shift, from 10:00 p.m. to 6:00 a.m. The team was deployed to conduct open-air drug sniffs on vehicles thirteen times prior to July 16, 2015, all during these nighttime hours. Bosco alerted to the presence of narcotics on ten of those occasions, and officers eventually found narcotics nine of the ten times. The exceptional incident, moreover, involved a driver who admitted that he had recently smoked marijuana in his vehicle. Bosco's field record was, while limited in experience, exemplary in result.
On July 16, 2015, Officer Hernandez was off-duty at Wal-Mart when he was asked whether he and Bosco could perform an open-air drug sniff on Heald's vehicle. While Officer Hernandez was at Wal-Mart, Bosco was in the backyard at Officer Hernandez's house, in over 90-degree heat. Officer Hernandez drove home from Wal-Mart, parked in his driveway with his windows rolled up, turned off his vehicle, and went inside to change into his police protective gear. After he changed into his gear, he brought Bosco out to his vehicle and put him in the back seat. He noticed that the vehicle was hot, and that Bosco was hot. Additionally, the air conditioning did not work well in his vehicle, so the ride from Officer Hernandez's house to Heald's vehicle was hot for Bosco as well. In short, Bosco was very hot by the time he got to Heald's vehicle, and he was not accustomed to working in such conditions, as all of his previous shifts were during the cool of night.
E. The Concluding Portion of the Stop: The Open-Air Drug Sniff
Officer Hernandez arrives with Bosco at 16:22:10, and begins their open-air drug sniff at 16:24:46. When the team first appears on the MVR, Bosco is panting and his tongue is drooping out of his mouth. The sniff begins on the front driver side of the vehicle. Officer Hernandez — at this point and frequently throughout the search — uses his hand to guide where he wants Bosco to sniff. As he later testified, this is a method to keep the K-9 focused, and whenever he employs the method, it means that Bosco is not focused on the sniff. (Doc. 29, pp. 54-55). On the first pass by the driver side, Bosco pays no attention to the car. On the second pass, Bosco follows Officer Hernandez's hand when he flicks his wrist through the open front driver-side window, and briefly places his front paws on the window opening. Officer Hernandez next leads Bosco on an uneventful trip around the back and passenger side of the vehicle, then takes him off camera to down him in the shade. After another brief pass by the passenger side about 30 seconds later, Officer Hernandez again downs Bosco in the shade.
About a minute later, at 16:27:12, Officer Hernandez brings Bosco to the passenger side of the vehicle. On this pass, Bosco places his paws on the rear passenger side
At 16:28:38, Officer Hernandez tells another officer that Bosco is "burning up." Shortly thereafter, an officer asks whether anyone has water for Bosco. Three minutes later, at 16:31:30, Officer Hernandez reinitiates the sniff on the passenger side of the vehicle. Moving around to the driver side, Bosco again places his paws on the window opening. This time, while Officer Hernandez's hand is tracking along the top portion of the side of the vehicle, he does not motion up towards the opening. After a couple more passes by the rear of the vehicle, Officer Hernandez brings Bosco to the shade again. Around the same time, at 16:32:11, Officer Sanchez's in-car audio recording picks up a conversation between two unidentified persons. The first asks "did they get an indication yet?" and the second responds that it "doesn't appear so."
Officer Hernandez reinitiates the sniff on the passenger side of the vehicle at 16:32:16. On his second run down the passenger side of the vehicle, Officer Hernandez keeps his hand low, apparently as a guide to get Bosco to focus on the lower portion of the vehicle. At 16:32:30, while Officer Hernandez's hand is low, Bosco lies down for an instant. He does this again five seconds later. Officer Hernandez then takes Bosco to the shade, and at 16:33:00 says "he's not even looking, he's fucking burning up ... let me run him one more time, but he's burning up." Following this statement, the conversation becomes difficult to hear. But, listening in Chambers with noise-cancelling headphones, the Court believes that Officer Sanchez says something along the lines of "I thought it was an alert, like right there" or "I thought it was — what happened right there?" — a reference to Bosco having just lied down twice at the passenger side. It sounds to the Court like Officer Hernandez then responds "well, that's just to kind of to get him to check [inaudible for a couple of seconds] the car, so it's not a — not an alert."
Officer Hernandez begins the final run on the driver side of the vehicle at 16:34:40. On the first pass, Bosco does not pay attention to the vehicle. Officer Hernandez then jerks his leash a bit, and runs Bosco down the driver side again, this time using his hand as a guide. As Officer Hernandez passes by the open front window, he again flicks his hand in the window. After a short pause, Bosco jumps into the vehicle through the window. This happens at 16:34:49. At 16:34:55, Bosco honks the vehicle's horn. Bosco jumps back out the window at 16:34:59. This essentially concludes the open-air drug sniff.
At 16:36:00, Officer Hernandez says "I'm fucking debating it because he's not supposed to jump in cars like that — nunca [never, in Spanish]." At 16:36:25 a noise
Officer Sanchez then proceeds to search the vehicle, and finds two plastic baggies containing methamphetamine, a meth pipe, syringes, and a scale all in the center console. Shortly thereafter, the MVR stops recording. Law enforcement later located a firearm and a cell phone in the trunk of the vehicle, and then found incriminating information on the cell phone after obtaining a warrant to search it. Heald was arrested at the scene.
A grand jury returned an Indictment (Doc. 1) on September 16, 2015, charging Heald with one count of possession with intent to distribute methamphetamine, and one count of being a felon in possession of a firearm. Heald moved to suppress the evidence against him on November 17, 2015 (Doc. 17). His Motion offers two constitutional bases to suppress the evidence. First, it argues that the extension of his stop beyond the time reasonably necessary to investigate and issue a citation for a traffic infraction violated the Fourth Amendment. Second, it argues that the open-air drug sniff did not produce a reliable alert sufficient to create probable cause to search his vehicle under the Fourth Amendment.
The Government filed a Superseding Indictment (Doc. 19) on December 9, 2015, adding a charge of possession of a firearm in furtherance of a drug trafficking crime. Heald is currently incarcerated, and has been since his arrest. The Court began a suppression hearing on January 27, 2016, at which Detective Mackey, Detective Ross, Officer Sanchez, and Officer Hernandez testified for the Government, and Steven Nicely testified for Heald as a K-9 specialist. The Court adjourned the hearing until February 8, 2016, at which time Criss Gardner testified as a K-9 specialist and the trainer of both Bosco and Officer Hernandez.
II. LEGAL STANDARD
The Fourth Amendment to the United States Constitution provides:
As law students have been taught for decades, a police officer needs a reasonable, articulable, particularized suspicion of criminal activity in order to initiate a seizure in compliance with the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Judging the facts to determine whether this standard has been met is an
In the traffic-stop context, "[l]ike a Terry stop, the tolerable duration of police inquiries ... is determined by the seizure's `mission' — to address the traffic violation that warranted the stop, and attend to related safety concerns." Rodriguez v. United States, ___ U.S. ___, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015) (internal citations omitted). Accordingly, authority for the stop "ends when tasks tied to the traffic infraction are — or reasonably should have been — completed." Id. Any unrelated inquiries that "measurably extend" the duration of the stop cause it to run afoul of the Fourth Amendment. Id. (quoting Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)). This is so unless the police officer develops the reasonable suspicion "ordinarily demanded to justify detaining an individual." Id. "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." United States v. Linkous, 285 F.3d 716, 720 (8th Cir.2002) (internal quotation omitted). "An officer's suspicion of criminal activity may reasonably grow over the course of a traffic stop as the circumstances unfold and more suspicious facts are uncovered." Id.
Reasonable suspicion alone, however, is insufficient to justify the search of a vehicle under the Fourth Amendment. Instead, the police are required to have probable cause. "A police officer has probable cause to conduct a search when the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present." Florida v. Harris, ___ U.S. ___, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (2013) (quotations and alterations omitted); see also United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir.2000) ("Probable cause exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place."). Taking this "practical and common-sensical" approach, the Supreme Court has "rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach." Harris, 133 S.Ct. at 1055; see also Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (affirming a totality-of-the-circumstances approach to probable cause).
A. Officer Sanchez Had Reasonable Suspicion to Prolong Heald's Traffic Stop
The Court finds that Officer Sanchez had reasonable suspicion to expand the scope of his investigation beyond the traffic infractions for which he originally stopped Heald. Heald contends that Officer Sanchez based his reasonable suspicion
But, Officer Sanchez's basis for having reasonable suspicion of criminal activity is stronger than Heald lets on. Namely, Officer Sanchez had knowledge of Heald's presence at a suspected drug-trafficking house, and was working with a team of law enforcement officers who observed Heald at the house. At the suppression hearing, Detective Mackey testified that Officer Sanchez was "working with [him] on this case" as a member of "the crime suppression unit" which "assist[s] the specialized units such as ... narcotics... on whatever they need done with a uniformed patrol officer." Mackey Test. at 18. He also testified that Officer Sanchez "was briefed that we were watching a house due to suspicion of narcotics trafficking." Id. at 18-19.
This knowledge distinguishes the instant case from an ordinary traffic stop. With an ordinary traffic stop, where the seizing officer has no advance knowledge of any possible criminal activity, the officer's reasonable suspicion must necessarily be premised on facts learned during the stop. See United States v. Riley, 684 F.3d 758 (8th Cir.2012); United States v. Lyons, 486 F.3d 367 (8th Cir.2007); Linkous, 285 F.3d at 716; Jones, 269 F.3d at 919; Beck,
Whether Officer Sanchez's knowledge
The Court finds that the concerned citizen's tip was reliable. The tip included very specific descriptions of conduct that she personally witnessed. See Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683, 1689, 188 L.Ed.2d 680 (2014) (discussing how specific, eye-witness tips are more reliable than other types of tips). Detectives Mackey and Ross were able to corroborate some of the details of her tip through independent police work. On July 16, 2015, they observed a Chevy Blazer backed into a driveway with the doors open and someone kneeling by one of the doors as he was working on it. This is consistent with the activity the concerned citizen claimed to have witnessed on prior occasions. Moreover, that the detectives were able to corroborate those facts increases the credibility of other information provided by the concerned citizen. Accord White, 496 U.S. at 325, 110 S.Ct. 2412 (police officers' corroboration of certain innocent details of an anonymous tip created reasonable suspicion); Gates, 462 U.S. at 241, 103 S.Ct. 2317 ("Our decisions ... have consistently recognized the value of corroboration of details of an informant's tip by independent police work."). The detectives, and by extension Officer Sanchez, could thus attribute some credibility to the concerned citizen's assertions about having seen people carrying packages from the Chevy Blazer to the garage, and about having seen a bald white man carry two packages towards the Silver Toyota (but not knowing whether he carried them into the vehicle).
Taking a totality-of-the-circumstances approach, the Court finds that the detectives' first-hand observations, together with their reasonable reliance on the non-corroborated portions of the concerned citizen's tip, created reasonable suspicion of criminal activity. This reasonable suspicion is attributable to Officer Sanchez either through his communications with the detectives, or through the collective knowledge doctrine. Accordingly, Officer Sanchez had the reasonable suspicion of criminal activity necessary to prolong the duration of Heald's seizure beyond the time necessary to investigate a traffic infraction.
B. Bosco's Sniff Was Not Up to Snuff
The Supreme Court recently detailed the standard for determining whether a K-9's alert is sufficient to create probable cause. The petitioners in Florida v. Harris asked the Supreme Court to reverse the Florida Supreme Court's holding that a wide array of evidence was necessary to establish a K-9's reliability. 133 S.Ct. at 1055. The evidence required by the Florida court included the K-9's performance history, training and certification records, and instances of false alerts. Id. Based on the K-9 officer's failure to maintain such information, the Florida court found that the officer could not consider his K-9 to be a reliable indicator of drugs. Id.
The Supreme Court reversed. It explained that it had consistently "rejected rigid rules, bright-line tests, and mechanistic inquiries" to determine probable cause, "in favor of a more flexible, all-things-considered approach." Id. Holding that the Florida court had "flouted" that approach, the Court held that "evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert." Id. at 1056, 1057. "If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search." Id. at 1057. This standard, however, does not allow the government to use a K-9's certification as a rubber stamp to show reliability. A defendant "may contest the adequacy of a certification or training program," "examine how the dog (or handler) performed in the assessments made in those settings," introduce "evidence of the dog's (or handler's) history in the field," or ague that "circumstances surrounding a particular alert may undermine the case for probable cause." Id. at 1057-58. With respect to the latter argument, the case for probable cause could be undermined if, for example, "the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions." Id. at 1058. Ultimately, the question for the Court "is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test." Id.
As an initial matter, the Court can find no fault with Bosco's (or Officer Hernandez's) training and certification records. Despite Heald's argument to the contrary, these records are certainly sufficient to allow the Court to presume that an alert from Bosco would generally be a reliable indication of the presence of narcotics. It is, instead, the circumstances surrounding Bosco's supposed alert that lead this Court to doubt its reliability.
To begin, Bosco had never conducted a single sniff in the field during the day time, let alone in over 90-degree heat.
Second, Bosco was not trained to alert by jumping through an open vehicle window. Instead, Bosco was trained as a passive alert dog, meaning that he sits or lies down to display final indication when he detects the presence of narcotics. While other changes of behavior can signal the presence of drugs, they are inherently less reliable than the trained method of indicating.
Third, and relatedly, law enforcement's actions during and after the open-air drug sniff illustrate the uncertainty of whether Bosco alerted at all, and if he did, whether the alert was reliable. After Officer Hernandez's verbal expression of uncertainty (Gov't Ex. 1 at 16:36:00), the Court finds that Officer Sanchez's microphone was obstructed. Thus we do not know how Officer Hernandez went from "debating it" to determining that Bosco's jump was an alert creating probable cause. What we do know, however, is that after viewing the MVR ex post facto, Officer Hernandez chose to omit Bosco's jump from his written report, and instead wrote that Bosco provided a final indication on the passenger side of the vehicle. See Doc. 29, pp. 46-51. To muddy the waters further, this statement was a reference to Bosco's lying down around the 16:32:30 mark of the MVR. In the moment, however, Officer Hernandez explained to Officer Sanchez that "it's not a — not an alert," seemingly because Officer Hernandez was instructing Bosco to sniff the lower portion of the vehicle. Gov't. Ex. 1, at 16:33:23. Consistent with this, Officer Hernandez can be seen on the MVR motioning for Bosco to sniff the bottom part of the vehicle.
None of this is to say, or suggest, that Officer Hernandez's conduct was dishonest. Rather, the Court agrees with his own assessment — that he was "not on his game" that day — and further believes that he was not on his game when he later wrote his report. (Doc. 29, p. 55). Thus, to an overheated K-9 working in unfamiliar conditions, exhibiting a behavior that he was not trained to exhibit, the Court can add an understandably distracted handler, who, to boot, flip-flopped on how and whether Bosco alerted: In the moment, Officer Hernandez was debating whether Bosco's jump was an alert. And then later,
Fourth is the issue of unintentional cueing. The Court cannot help but observe that whenever Bosco was focused on the vehicle, he followed Officer Hernandez's hand almost the entire time. When Officer Hernandez had his hand low, Bosco sniffed low; when he had his hand high, Bosco sniffed high. When he flicked his wrist towards the open window, Bosco jumped on the window opening, or jumped through that opening. While Mr. Gardner and the defense K-9 specialist, Mr. Nicely, differed on whether this conduct could lead to unintentional cueing, the Court believes, after closely viewing the MVR several times, there is a possibility that it did here.
Fifth, and finally, the duration of the open air sniff was unusually long. See Doc 29, pp. 17-18. Though normally an innocent factor, in the context of this specific case, the Court believes it is notable. This is so in large part because as the minutes passed, Bosco's exposure to the heat became prolonged, and so his ability to perform continued to diminish.
Any one of the above factors alone would not be sufficient to render Bosco's supposed alert unreliable. The mere fact that it was hot out is alone not enough; that Bosco previously only worked in the cool of the night is alone not enough; that the heat admittedly affected Bosco's performance is alone not enough; that Bosco was often not paying attention is alone not enough; that his supposed alert was not how he was trained to indicate is alone not enough; that Officer Hernandez was off his game and distracted is alone not enough; that he could not readily determine whether Bosco alerted is alone not enough; that he later changed his version of how Bosco alerted is alone not enough; that there was some possibility of unintentional cueing is alone not enough; and that the sniff lasted an abnormally long time is alone not enough. But, taking all of these facts together, and viewing them in the totality of the circumstances, a reasonable person would not think that Bosco's actions created a reliable alert, such that a search would reveal contraband.
These factors, to be clear, lead the Court to two related conclusions. First, that there is insufficient evidence to conclude that Bosco actually alerted to the presence of narcotics. Second, that even assuming arguendo that Bosco's jump did constitute an alert, it was not sufficiently reliable to establish probable cause. Accordingly, law enforcement's subsequent search of Heald's vehicle violated the Fourth Amendment. The evidence found as a result of that search — including the physical evidence in the vehicle, the evidence later found on Heald's cell phone, and any incriminating statements made by Heald following
In closing, the social cost of suppressing evidence, and potentially letting a factually guilty person walk free, is not lost on this Court. Nor, however, is the social cost of allowing the police to search a person or his property in violation of the Fourth Amendment. The well-established exclusionary rule settles the constitutional balancing of these social ills. In such cases, the Fourth Amendment must, indeed, prevail.
The Court finds that Officer Sanchez had reasonable suspicion to prolong the duration of Heald's stop. However, the Court finds that law enforcement did not have probable cause to search his vehicle. Heald's Motion to Suppress will, therefore, be
In Gillette, the degree of communication between officers that the Eighth Circuit required to apply the doctrine can only be described as de minimis. There, an officer on the scene of a drug bust obtained a homeowner's consent to search his property, including a truck parked in his driveway. Although the truck actually did not belong to the homeowner, the officer would have been permitted to search the truck in reasonable reliance of the homeowner's consent. However, the truck was in fact searched by a different officer, who independently would have lacked probable cause or consent for the search. The Eighth Circuit held that the first officer's knowledge of the homeowner's consent was imputed upon the second officer by sole virtue of the fact that the second officer had been called to the scene to assist in the ongoing investigation. Id.