United States v. Garza-Hernandez ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40628
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
BRIAN MATTHEW MOORE
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Texas, Beaumont
March 26, 2003
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
KING, Chief Judge:
The United States of America appeals the district court’s
suppression of approximately one hundred pounds of marijuana and
a pistol found in Defendant Brian Matthew Moore’s vehicle. The
district court granted Moore’s suppression motion because it
determined that the police officers’ investigatory stop was
transformed into a de facto arrest without probable cause when
the officers handcuffed Moore. Because we find that, even if the
officers arrested Moore without probable cause, the evidence
uncovered was not the “fruit” of the illegal arrest, we REVERSE.
I. FACTUAL AND PROCEDURAL HISTORY
A. Facts
This case concerns the admissibility of marijuana and a
No. 01-51135
-2-
firearm found from a search of Moore’s vehicle during a traffic
stop. The parties substantially agree on the following facts.
Officers Greg Fountain and Tony Viator noticed Moore swerve
onto the shoulder of the road several times, so they initiated a
traffic stop. Officer Fountain approached Moore’s car and
noticed that Moore was attempting to light a cigar1 and that
Moore’s luggage was in the back seat of the vehicle rather than
in the trunk. Officer Fountain then asked Moore to exit his
vehicle and produce his driver’s license.
Officer Fountain told Moore he was stopped for crossing onto
the shoulder of the road three times and then asked Moore how
long he had been driving and where he was going. While Officer
Fountain spoke with Moore, Officer Viator contacted dispatch to
check Moore’s record for any outstanding warrants and to ensure
his license was valid. Officer Fountain told Moore that Officer
Viator was running a records check on his license and continued
to question Moore. At one point, Moore reached behind his back
and placed his hand near his waist; Officer Fountain then patted
down Moore but did not find a weapon.
Officer Fountain asked Moore if he had anything illegal in
his vehicle. Moore stated that he did not but then refused to
give Officer Fountain consent to search the vehicle. According
to Officer Fountain - and Moore contests this - Moore appeared
increasingly more nervous. Office Fountain then said, “You’re
1
Officer Fountain testified that, in his thirteen years
of experience, he has noticed that an individual may light a
cigar or cigarette during a traffic stop to mask the odor of
alcohol or drugs.
No. 01-51135
-3-
extremely nervous. I know you got a load of dope in there from
the way you are acting. Do you want a chance to help yourself?
Yes or no?” Moore did not respond. Officer Fountain motioned to
Officer Viator to retrieve the drug-detecting dog that had been
riding along with the officers in their squad car to sniff
Moore’s car. Officer Fountain then told Moore to sit on a curb
and place his hands in front of his body. Officer Fountain
handcuffed Moore, twice told Moore that he was not under arrest,
and then advised Moore of his Miranda rights.
The drug-detecting dog alerted Officer Viator to the
presence of narcotics in the vehicle’s trunk. Officer Fountain
opened the trunk and found approximately one hundred pounds of
marijuana. Officer Fountain then told Moore he was under arrest
and moved Moore’s handcuffs from the front to the back of his
body. Officer Fountain searched the rest of the car and found a
loaded pistol and additional small amounts of marijuana.
The entire episode – traffic stop, questioning, handcuffing,
dog sniff, and search – happened in less than ten minutes. It
was captured on a video tape by a camera mounted on the police
car. The police officers did not receive a response from
dispatch on the records check until after the search of Moore’s
vehicle was complete.
B. Procedural History
Moore was charged with carrying a firearm during a drug
trafficking crime in violation of 18 U.S.C. § 924(c) (2000) and
with possession of marijuana with intent to distribute it in
violation of 21 U.S.C. § 841(a)(1) (2000). Moore moved to
No. 01-51135
-4-
suppress all evidence obtained from the vehicle search on the
ground that Officer Fountain arrested him without probable cause
when Officer Fountain placed him in handcuffs and read him his
Miranda rights. The United States argued that Officer Fountain
did not arrest Moore but only detained him, and, alternatively,
that the items found during the search were not the “fruit” of
the arrest.
The district court granted Moore’s suppression motion. The
district court determined that Officers Fountain and Viator had
reasonable suspicion to stop Moore for a traffic violation, but
that handcuffing Moore turned the traffic stop into a de facto
arrest. The district court did not explicitly analyze whether
the evidence was the fruit of the illegal arrest but simply held
that because the arrest was illegal, the evidence should be
suppressed.
The United States now appeals. The United States argues:
(1) the police did not arrest Moore when they placed him in
handcuffs and read him his Miranda rights; and (2) even if the
police did arrest Moore, the marijuana and firearm found during
the search of Moore’s vehicle were not the “fruit” of the arrest
because the police obtained the evidence through a legal
independent source, not through the allegedly illegal arrest.
Moore adds an issue on appeal, claiming that the appeal should be
dismissed because the United States did not show it obtained
permission to appeal according to 18 U.S.C. § 3742.
II. STANDARD OF REVIEW
This court addresses compliance with 18 U.S.C. § 3742 de
No. 01-51135
-5-
novo, as it is a question of statutory interpretation that was
not before the district court. See, e.g., United States v.
Hanafy, 302 F.3d 485, 487 (5th Cir. 2002).
When reviewing a motion to suppress, this court reviews
factual findings for clear error and questions of law de novo.
E.g., United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000).
Whether evidence is the “fruit” of police illegality is a legal
conclusion that we review de novo. See United States v. Herrera-
Ochoa, 245 F.3d 495, 498 (5th Cir. 2001). Further, this court
views the evidence in the light most favorable to the party that
prevailed in the district court. Id.III. DISCUSSION
A. Whether the United States Demonstrated It Received
Permission to Appeal Under 18 U.S.C. § 3742(b)
Moore argues that the United States has not demonstrated
that it obtained permission to pursue this appeal under 18 U.S.C.
§ 3742(b) because it did not provide written documentation of
permission in the record. Moore further argues that the
requirement that the United States demonstrate compliance with
§ 3742(b) is jurisdictional so that the United States’s “late”
compliance (in its reply brief) means this case must be
dismissed.
The United States contends that it has demonstrated
compliance with the § 3742(b) requirement because it stated in
its initial brief that it obtained approval prior to filing its
opening brief in this court and then it attached a copy of the
Solicitor General’s permission letter to its reply brief. The
United States contends that the requirement that it demonstrate
No. 01-51135
-6-
it received permission under § 3742(b) is not jurisdictional, so
a late showing of compliance does not necessitate dismissal.
The statute at issue, 18 U.S.C. § 3742(b) (2000), states
that after the United States files a notice of appeal in a
criminal case, “[t]he Government may not further prosecute such
appeal without the personal approval of the Attorney General, the
Solicitor General, or a deputy solicitor general designated by
the Solicitor General.” The purpose of this requirement is “to
assure that such appeals are not routinely filed.” S. Rep. No.
98-225, at 154 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3337.
In this case, the issue is not whether the United States actually
received permission as § 3742(b) requires, but whether the United
States properly demonstrated to this court that it received
permission.
We agree with all federal circuits that have considered the
issue that the requirement that the United States demonstrate it
obtained permission according to § 3742(b) is not jurisdictional.
See, e.g., United States v. Hendrickson, 22 F.3d 170, 172 n.1
(7th Cir. 1994); United States v. Gonzalez, 970 F.2d 1095, 1101
(2d Cir. 1992); United States v. Hall, 943 F.2d 39, 41 (11th Cir.
1991); United States v. Smith, 910 F.2d 326, 328 (6th Cir. 1990);
United States v. Gurgiolo, 894 F.2d 56, 57 n.1 (3d Cir. 1990).
Thus, the failure to timely demonstrate permission does not
require automatic dismissal. If the United States never shows
that it obtained permission, though, this court will dismiss its
appeal. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th
Cir. 2000) (“Because there is no evidence that the Government
No. 01-51135
-7-
ever received § 3742 approval for this appeal, no statement by
the Government that it sought or received approval and no
analysis that might form the basis for determining that approval
was not necessary in spite of the mandatory language of the
statute, we dismiss this appeal.”).
In United States v. Dadi, we held that if the United States
attaches proof of permission to its reply brief, it has
sufficiently demonstrated compliance with § 3742(b). See 235
F.3d 945, 955 (5th Cir. 2000), cert. denied, 532 U.S. 1072(2002). In this case, the United States obtained permission to
appeal on July 15, 2002, before it filed its opening brief in
this court. The United States stated that permission had been
obtained in the “statement of jurisdiction” section of its
opening brief. After Moore raised the § 3742(b) issue, the
United States attached a copy of the Solicitor General’s letter
to its reply brief. Because the United States attached a copy of
its permission letter to its reply brief, it satisfied 18 U.S.C.
§ 3742(b) under Dadi.2
2
Moore arguably raises one other issue: that the United
States failed to give sufficient notice of appeal under Fed. R.
App. P. 4(b)(1)(B) and 18 U.S.C. § 3731. The United States did
comply with the applicable notice requirements. Federal Rule of
Appellate Procedure 4 states that the United States must file its
notice of appeal within 30 days after the later of the entry of
judgment or the defendant’s notice of appeal. Fed. R. App. P.
4(b)(1)(B). Section 3731 likewise requires that the United
States appeal “within thirty days after the decision, judgment or
order has been rendered” and certify to the district court that
the appeal was not taken for purposes of delay. 18 U.S.C. § 3731(2000). The district court judgment was entered on March 14,
2002, and the United States filed its notice of appeal on April
9, 2002. The notice of appeal contained the required
certification stating the appeal was not taken for purposes of
delay. Moore’s argument is thus meritless.
No. 01-51135
-8-
B. Whether the District Court Erred in Suppressing the Evidence
The United States challenges the district court’s
suppression ruling on two grounds. First, the United States
argues that the legal traffic stop was not transformed into an
illegal arrest when Moore was handcuffed.3 Second, the United
States argues that, even if the police illegally arrested Moore,
the evidence found in his vehicle was not the “fruit” of the
illegal arrest. Because we agree with the United States on the
second issue, we need not reach the first issue of whether the
traffic stop was transformed into an arrest when Moore was
handcuffed.
The United States argues that the district court erred in
automatically suppressing the evidence found during the vehicle
search because even if there were an illegal arrest, the evidence
from the vehicle search was not obtained as a result of the
arrest but rather came from a legal independent source. The
United States reasons that the police could legally detain Moore
3
The United States points out that handcuffing a suspect
does not automatically convert a detention into an arrest; the
key question is whether the officers behaved unreasonably in
failing to use less intrusive means to conduct their
investigation safely. See, e.g., United States v. Jordan, 232
F.3d 447, 450 (5th Cir. 2000) (“Handcuffing a suspect does not
automatically convert an investigatory detention into an arrest
requiring probable cause. The relevant inquiry is whether the
police were unreasonable in failing to use less intrusive
procedures to safely conduct their investigation.”) (citation
omitted). The United States argues, based on the testimony of
the officers, that the officers acted reasonably in handcuffing
Moore because they were concerned for their own safety and
believed that Moore posed a flight risk. Further, the United
States notes that the officers repeatedly advised Moore that he
was not under arrest and the officers did not engage in any other
show of force. While we do not decide the issue, there are
certainly several factors suggesting that the investigatory stop
may not have risen to the level of a de facto arrest.
No. 01-51135
-9-
until the check of his record was complete, the check of Moore’s
record was not yet complete when the dog sniff occurred, the dog
sniff gave the police probable cause to search Moore’s car, and
the search revealed the incriminating evidence. Thus, the United
States argues, the police found the evidence through a chain of
legal activities and not as a result of the allegedly illegal
arrest.
Moore argues that the evidence must be suppressed because
the allegedly illegal arrest tainted the search of his vehicle.
Moore reasons that the officers decided to use the drug-detecting
dog based on his refusal to consent to a vehicle search. Moore
also argues that the officers’ “excessive” questioning made his
detention illegal.
Evidence obtained as a result of the exploitation of an
illegal search or seizure should be suppressed. See Wong Sun v.
United States, 371 U.S. 471, 488 (1963) (suppressing evidence
obtained “by exploitation of [police] illegality” but not
evidence obtained “by means sufficiently distinguishable to be
purged of the primary taint”) (citation omitted). Evidence that
is not obtained as a result of police illegality, but rather
through a legal “independent source,” need not be suppressed.
See Murray v. United States, 487 U.S. 533, 537 (1988). Under the
“independent source” doctrine, “if not even the ‘but for’ test
can be met [so that the evidence would not have been found but
for police illegality], then clearly the evidence is not a fruit
of the prior Fourth Amendment violation.” 5 Wayne LaFave, Search
and Seizure: A Treatise on the Fourth Amendment § 11.4(a), at 236
No. 01-51135
-10-
(3d ed. 1996).
In this case, the officers did not obtain the evidence as a
result of the alleged arrest; the evidence was the product of
legal police activity. That is, every step the officers took in
uncovering the evidence was constitutionally permissible. Put
another way, the fact that Moore was handcuffed is irrelevant
because handcuffing Moore did not cause the officers to find the
evidence. The officers detained and questioned Moore while
awaiting the results of the check of his record. Moore’s
detention was constitutionally permissible because an officer may
detain an individual until a check of his record is complete.
See United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999),
op. corrected on denial of reh’g, 203 F.3d 883 (2000); see also
United States v. Shabazz, 993 F.2d 431, 436-37 (5th Cir. 1993)
(“The questioning that took place occurred while the officers
were waiting for the results of the computer check. . . .
Because the officers were still waiting for the computer check at
the time they received consent to search the car, the detention
to that point continued to be supported by the facts that
justified its initiation.”). The officers had a drug-detecting
dog sniff Moore’s car, which is also permissible because a dog
sniff of a vehicle is not a Fourth Amendment “search” requiring
individualized suspicion. See United States v. Place, 462 U.S.
696, 706-07 (1983). The results of the dog sniff gave the
officers probable cause to search Moore’s car, so the search that
uncovered the evidence was justified. See, e.g., Chambers v.
Maroney, 399 U.S. 42, 48 (1970) (“[A]utomobiles and other
No. 01-51135
-11-
conveyances may be searched without a warrant . . . provided that
there is probable cause to believe that the car contains articles
that the officers are entitled to seize.”). Thus, the police
officers obtained the evidence in this case though a series of
lawful steps. The evidence was simply not the product of police
illegality.
United States v. Ibarra-Sanchez is on point. See 199 F.3d
753, 760-62 (5th Cir. 1999). In that case, the police had
reasonable suspicion to stop a van based on facts suggesting that
the van contained marijuana. See id. at 758-60. The police
stopped the van, approached the van with guns drawn, ordered
passengers to exit the car and kneel on the ground, and
handcuffed the passengers and placed them in patrol cars. See
id. at 757. The passengers argued that the investigatory stop
became an “arrest” not supported by probable cause. See id. at
760. The panel determined that “even if the show of force by the
officers constituted an illegal arrest, it would not affect our
ultimate disposition because neither the drugs nor the statements
were products of the alleged post-stop arrest.” Id. at 761(emphasis added). Because the police smelled marijuana as they
approached the vehicle, they had probable cause to search the
vehicle. See id. at 762. “[I]t made no difference to the
ultimate result whether the[] [defendants] stood by the side of
the road or sat handcuffed in police cars: in either situation,
the officers would have discovered the marihuana and arrested
them.” Id. Similarly, in this case the officers would have
obtained the evidence through lawful means whether or not they
No. 01-51135
-12-
handcuffed Moore.
Moore makes no argument about how the handcuffing led to the
search of his vehicle. Moore argues that his refusal to consent
to a vehicle search led to the dog sniff, but the police do not
need individualized suspicion to conduct a dog sniff because it
is not a Fourth Amendment search. Moore also contends that his
nervousness in response to the officers’ questioning led to the
dog sniff, but the police are allowed to question suspects while
awaiting the results of a records check.4 Moore does not argue
that it was the handcuffing that made him appear more nervous and
that is why the officers had the dog sniff his car. Indeed, it
appears from the record that the police first decided to have the
dog sniff the vehicle, then handcuffed Moore because they were
concerned about him trying to flee during the sniff and
subsequent search. The district court assumed that if an illegal
arrest took place, suppression of the evidence found during the
vehicle search was warranted. But here, the alleged arrest was
not even the “but-for” cause of the search. The evidence was
obtained through an independent source and thus suppression of
the evidence is not appropriate in this case.
IV. CONCLUSION
For the foregoing reasons, the district court’s suppression
order is REVERSED and the case is REMANDED for further
proceedings.
4
Though Moore argues that “excessive” questioning may
transform an investigative stop into an arrest, this circuit has
rejected that argument in cases where the questioning does not
increase the duration of the stop. See Shabazz, 993 F.2d at 436-
37.
No. 01-51135
-13-
DeMOSS, SPECIALLY CONCURRING:
Because (1) a drug sniffing dog alerted to the exterior of the
trunk of Moore’s vehicle; (2) that alert occurred prior to the
time the arresting officers got any response to the license check
they initiated as a result of making a traffic stop of Moore’s
vehicle; and (3) such alert of a drug sniffing dog does not
constitute any kind of illegal search or seizure, I conclude that
the officers had reasonable suspicion to search the trunk of
Moore’s car. Accordingly, I concur in the panel decision to
reverse the District Court’s order suppressing the drugs found in
the trunk of Moore’s vehicle. But for these circumstances,
however, I would have concluded that the conduct of Officer
Fountain in placing handcuffs on Moore and ordering him to sit on
the side of the road would have constituted a warrantless arrest
without probable cause and the drugs discovered thereafter would
have been suppressed as the fruit of an illegal search made without
Moore’s consent.