United States v. Quintin Tyronne Anderson ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12154 ELEVENTH CIRCUIT
FEBRUARY 22, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00256-CR-J-32-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUINTIN TYRONNE ANDERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 22, 2010)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Quintin Tyronne Anderson appeals his conviction for possession of a
firearm after having been convicted of a felony, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). On May 2, 2008, Deputy Shawn Emert of the St. Johns
County Sheriff’s Office stopped Anderson’s vehicle after he observed a severe
crack in the vehicle’s windshield. While Deputy Emert cited Anderson for the
traffic violation, Deputy George Gazdick arrived at the scene with narcotics
detection dog, Aron. Aron alerted to the odor of narcotics in Anderson’s vehicle.
After Aron alerted, deputies searched Anderson’s vehicle and found a .38 caliber
revolver, ammunition, and a small amount of drugs. On appeal, Anderson
challenges the district court’s denial of his motion to suppress the physical
evidence seized by the police. Anderson argues that the court erred in denying his
motion to suppress the contraband found in his vehicle for two reasons: (1) that
Deputy Emert lacked probable cause for the initial traffic stop, and (2) that Aron
was not reliable.
In reviewing the denial of a motion to suppress evidence, we accept the
district court’s findings of fact unless they are clearly erroneous and consider the
district court’s application of the law to the facts de novo. United States v. Gil, 204
F.3d 1347, 1350 (11th Cir. 2000) (per curiam). In this case, we construe the facts
in the light most favorable to the government. United States v. Hromada, 49 F.3d
685, 688 (11th Cir. 1995) (citation omitted). “We accord great deference to the
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district court’s credibility determinations.” United States v. Clay, 376 F.3d 1296,
1302 (11th Cir. 2004) (citation and quotation omitted).
I. Traffic Stop
Under Florida law, a police officer can stop a vehicle for a cracked
windshield only if the officer reasonably believes that the crack renders the vehicle
in such unsafe condition as to endanger any person or property. Anderson asserts
that Deputy Emert was equivocal about whether he stopped Anderson for faulty
equipment or because the vehicle was unsafe. He also contends that Deputy Emert
did not specify why the crack rendered the windshield unsafe and impermissibly
relied on Florida’s faulty equipment statute to stop Anderson. Further, Anderson
argues that the photographic exhibits of the windshield presented at the
suppression hearing were inadequate to establish probable cause for the stop.
The Fourth Amendment protects individuals from “unreasonable searches
and seizures” by government officials, “and its protections extend to brief
investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266,
273, 122 S. Ct. 744, 750 (2002) (citation and quotation omitted). A decision to
stop a vehicle is reasonable under the Fourth Amendment when an officer has
“probable cause to believe that a traffic violation occurred.” United States v.
Simmons, 172 F.3d 775, 778 (11th Cir. 1999) (citation omitted). The standard for
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determining whether probable cause exists “is met when the facts and
circumstances within the officer’s knowledge, of which he or she has reasonably
trustworthy information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed, is committing, or is about to
commit an offense.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998)
(citation and quotation omitted). In Hilton v. State, the Florida Supreme Court
clarified that “a stop for a cracked windshield is permissible only where an officer
reasonably believes that the crack renders the vehicle ‘in such unsafe condition as
to endanger any person or property.’” 961 So. 2d 284, 292 (Fla. 2007) (quoting
Fla. Stat. § 316.610).
Deputy Emert’s testimony that he stopped Anderson for faulty equipment
did not conflict with his testimony that he stopped Anderson for safety reasons.
Furthermore, photographs submitted during the hearing displayed the size of the
crack in the windshield. Therefore, the district court did not clearly err in finding
Deputy Emert credible. As a result, it properly concluded that Deputy Emert’s
testimony, coupled with the photographs of the windshield, established probable
cause to believe that Anderson had committed a traffic violation. Consequently,
the traffic stop was permissible.
II. Reliability of Narcotics Detection Dog
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Anderson also contends that the officers who searched his vehicle lacked
probable cause to search for narcotics because the canine Aron was trained to
detect the odor of narcotics, not the presence of narcotics. Anderson argues that
because the dog was trained to detect the odor of drugs, which may or may not be
present, there is no reliable way of knowing whether contraband is actually present.
Specifically, he asserts that in 44.9% of the searches conducted by Deputy Gazdick
and Aron, an alert resulted in no discovery of measurable amounts of contraband.
He maintains that the mere fact of training and certification, combined with an
alert, is insufficient to support probable cause. The Fourth Amendment
requires that to search a car without a warrant, a law enforcement officer must have
probable cause to believe it contains contraband. Pennsylvania v. Labron, 518
U.S. 938, 940, 116 S. Ct. 2485, 2487 (1996) (citation omitted) (per curiam). In the
case of narcotics dogs, “[o]ur circuit has recognized that probable cause arises
when a drug-trained canine alerts to drugs.” United States v. Banks, 3 F.3d 399,
402 (11th Cir. 1993) (per curiam); see also United States v. Tamari, 454 F.3d
1259, 1265 (11th Cir. 2006). Although Anderson is correct in noting that there
have been other facts establishing probable cause in our canine alert cases, we have
stated that a canine’s “positive alert was itself sufficient to give agents probable
cause to search the [vehicle].” Tamari, 454 F.3d at 1265. Similarly, in United
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States v. Steed, we applied Tamari and held that a canine’s positive alert outside a
trailer gave officers probable cause to search the trailer. 548 F.3d 961, 975 (11th
Cir. 2008) (per curiam) (citing Tamari, 454 F.3d at 1264–65).
While a dog sniff must be sufficiently reliable in order to establish probable
cause, we have held in dicta “that training of a dog alone is sufficient proof of
reliability.” United States v. Sentovich, 677 F.2d 834, 838 n.8 (11th Cir. 1982)
(citation omitted) (endorsing the view of the Tenth and First Circuits that training
of a dog alone is sufficient proof of reliability); see also United States v. Robinson,
390 F.3d 853, 874 (6th Cir. 2004) (citation omitted) (holding that once certification
is established, all other evidence goes to credibility); United States v. Williams, 69
F.3d 27, 28 (5th Cir. 1995) (per curiam) (holding that a dog’s past performance is
not required for a finding of reliability). But see Matheson v. State, 870 So. 2d 8,
14 (Fla. 2d DCA 2003) (citation omitted) (holding that training and certification is
insufficient to establish reliability, and that other factors, such as the dog’s “track
record,” must be considered).
In another decision, we described a dog as a “highly trained and credentialed
professional whose integrity and objectivity are beyond reproach,” because it had
graduated from the U.S. Canine Academy and Police Dog Training Center, had
been certified by the National Narcotics Detector Dog Association, and was
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described by one trainer as “probably one of the best dogs he had trained in the 23
years he had been doing it.” United States v. $242,484.00, 389 F.3d 1149, 1159,
1165 (11th Cir. 2004).
There was extensive evidence concerning Aron’s certification and training
with Deputy Gazdick. In addition to this evidence, the government also provided
proof of Aron’s reliability by offering his field records into evidence. Even
assuming Anderson’s view of the statistics, Aron had a 55% accuracy rate in
finding measurable amounts of drugs. “Absolute certainty is not required by the
Fourth Amendment.” United States v. Johnson, 660 F.2d 21, 23 (2d Cir. 1981)
(per curiam) (holding that appellant’s arguments regarding dog’s detection of odor
of drugs, rather than their presence, misconstrued the probable cause requirement).
Probable cause requires “a fair probability that contraband or evidence of a crime
will be found.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)
(emphasis added). Here, the district court did not err in determining that the
narcotics detection dog’s alert was reliable and gave rise to probable cause to
search Anderson’s vehicle. Accordingly, the district court did not err in denying
Anderson’s motion to suppress based on the canine’s alert.
AFFIRMED.
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