United States v. Farmer , 289 F. App'x 81 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0489n.06
Filed: August 13, 2008
No. 06-4419
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
ELWOOD LEONARD FARMER, )
)
Defendant-Appellant. )
Before: COOK and GRIFFIN, Circuit Judges; and MARBLEY, District Judge.*
COOK, Circuit Judge. Elwood Farmer appeals the district court’s denial of his motion to
suppress evidence discovered during a search of his car, arguing that police unconstitutionally
stopped and detained him. Because a reasonable suspicion that Farmer’s car contained illegal drugs
supported the stop and the detention to await a canine unit, we affirm.
I
In April 2006, two Beachwood Police Department investigators staked out the Clarion Hotel
in Beachwood, Ohio, to gather evidence in an unrelated case. While there, the investigators saw four
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
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United States v. Farmer
individuals—Farmer, his son, Mark Brinkley, and Brinkley’s girlfriend—engage in behavior
consistent with drug trafficking.
Farmer’s group arrived at the hotel in two cars—a Dodge Stratus and a Dodge
Caravan—with out-of-state license plates. At check-in, Brinkley paid for a room in cash, telling the
hotel clerk that he planned to share the room only with his girlfriend. Shortly after carrying luggage
inside, the quartet left the hotel in one car. Meanwhile, the Beachwood investigators obtained
Brinkley’s name from the front-desk clerk and ran a database search. It revealed Brinkley’s recent
arrest in North Carolina for possessing a handgun and twelve pounds of marijuana.
About an hour after Farmer’s group left the hotel, they returned to their room. Later,
Brinkley walked to the parking lot, grabbed two white plastic bags from the Stratus’s trunk, and sat
in the Caravan. As he waited, a Volkswagen approached. Brinkley entered the Volkswagen with
both plastic bags and exited a few minutes later with one bag only.
After exiting the Volkswagen, Brinkley reentered the hotel. The group soon emerged with
their luggage, which Farmer and Brinkley loaded into the cars. The remaining white plastic bag went
into Farmer’s Stratus, as did a large pit bull that Brinkley fetched from the Caravan. (At the
suppression hearing, the Beachwood investigators testified that drug dealers often use pit bulls to
guard the drugs.) Brinkley and his girlfriend then drove off in the Caravan, with Farmer and his son
trailing in the Stratus.
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As Farmer departed, the Beachwood investigators called Ohio State Highway Patrol Sergeant
Terry Helton and requested that troopers stop Farmer’s vehicle. (The investigators focused on
Farmer’s car because it carried the remaining white bag.) In the meantime, the investigators tailed
Farmer and kept Helton apprised of their location.
In response to the investigators’ request, Helton dispatched Highway Patrol Sergeant Mark
Neff and Trooper Todd Belcher to stop Farmer, relaying to Neff the suspicious activity at the
Clarion. In about half an hour, the troopers caught up to Farmer’s vehicle. Neff navigated his
vehicle behind Farmer’s and stopped him after observing Farmer’s right tire drift, by a “half a tire’s
worth of line,” over the fog line—the line that separates the right-hand lane from the emergency
shoulder. Neff radioed for a canine unit.
After collecting Farmer’s license and car-rental agreement (they turned up clean), Neff
walked back to where the Beachwood investigators had stopped their vehicles and discussed with
them Farmer’s conduct at the hotel. As the officers talked, the canine unit arrived. Although Farmer
disputes the wait time, the district court credited the testimony of multiple officers who testified that
it arrived in about fifteen minutes. The dog alerted to drugs in Farmer’s trunk, and the resulting
search revealed a white plastic bag containing three kilograms of cocaine.
After a grand jury indicted Farmer for possessing cocaine with the intent to distribute, 21
U.S.C. §§ 841(a)(1), (b)(1)(B), Farmer moved to suppress. The district court held an evidentiary
hearing and denied the motion. Farmer later pleaded guilty but preserved his right to appeal the
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suppression ruling.
II
We review the district court’s factual findings on a motion to suppress for clear error and its
legal conclusions de novo. United States v. Davis, 430 F.3d 345, 351 (6th Cir. 2005). Where, as
here, the district court denied a motion to suppress, we view the evidence in the light most favorable
to the government. Id. at 351–52.
On appeal, Farmer maintains that the police illegally stopped his vehicle and illegally
detained him while awaiting the drug-detecting dog. The government counters on two grounds.
First, it contends that Farmer’s traffic violation—the tire-drift over the fog line—justified the stop
and that reasonable suspicion arose during the stop to detain Farmer until the canine unit arrived.
Second, it argues that the police reasonably suspected that Farmer carried drugs from the time he left
the Clarion Hotel, justifying both an investigatory stop and detention.
Although the district court denied Farmer’s motion by relying on his alleged traffic violation,
we resolve this appeal solely on the reasonable suspicion that arose from Farmer’s conduct at the
hotel. While we do not ordinarily affirm the denial of a suppression motion on a ground unaddressed
by the district court, we may do so where the alternative ground is “supported by the record.” United
States v. Buckingham, 433 F.3d 508, 514 (6th Cir. 2006); see also United States v. Jenkins, 92 F.3d
430, 436–38 (6th Cir. 1996) (affirming on alternative ground after holding that search was valid even
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if the defendant’s unaddressed allegations were taken as true); United States v. Henry, 429 F.3d 603,
615–16 (6th Cir. 2005) (declining to remand where government’s alternative argument would fail
even if the government’s unaddressed allegations were taken as true); Davis, 430 F.3d at 364
(Sutton, J., concurring in part and dissenting in part) (urging affirmance on grounds not addressed
by the district court). Here the facts supporting the police’s reasonable suspicion—Farmer’s
suspicious conduct at the hotel—were either addressed by the district court or are uncontested. See
United States v. Taylor, 997 F.2d 1551, 1554–55 (D.C. Cir. 1993) (“[W]e have upheld denials of
suppression motions absent clear findings of fact and conclusions of law when ‘we [could] readily
affirm the denial’ based upon an argument made by the government below and supported by
evidence either uncontested or found credible by the District Court.”) (internal citation omitted)).
Accordingly, we proceed to explain why the features of the conduct observed by the police at the
Clarion gave rise to reasonable suspicion to stop and detain Farmer.
A
Terry v. Ohio, 392 U.S. 1 (1968), governs traffic stops made on the basis of suspected
criminal activity. Under Terry, a police officer may stop a vehicle if specific and articulable facts
lead him to reasonably suspect that an occupant is committing a crime. Illinois v. Wardlow, 528 U.S.
119, 124 (2000); see also United States v. Sokolow, 490 U.S. 1, 7 (1989) (stating that reasonable
suspicion requires “considerably less” proof than that needed for probable cause). To assess the
validity of a Terry stop, the court considers the totality of the circumstances. United States v.
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Martin, 289 F.3d 392, 396 (6th Cir. 2002).
When the Beachwood investigators testified at the suppression hearing, they articulated
several concrete reasons why their surveillance at the Clarion led them to suspect that the white
plastic bag in Farmer’s trunk contained illegal drugs. These included:
1) Brinkley’s brief meeting in the Volkswagen, after which the Volkswagen’s driver
took possession of the other white bag;
2) the group’s departure from the hotel shortly after the Volkswagen transaction;
3) the group’s short stay at the hotel;
4) Brinkley’s cash payment for the room;
5) Brinkley’s lie to the hotel clerk about the number of guests;
6) Brinkley’s recent arrest for possessing large amounts of drugs and a weapon;
7) the group’s use of two cars licensed in two different states;
8) the large pit bull; and
9) Brinkley’s transferring the pit bull to Farmer’s car along with the white bag.
As the cases confirm, these uncontroverted facts gave rise to something more than an
“unparticularized suspicion or ‘hunch’” that Farmer’s vehicle carried drugs. Terry, 392 U.S. at 27.
For example, in United States v. Perez, 440 F.3d 363 (6th Cir. 2006), the court held that police
possessed reasonable suspicion to stop a vehicle partly because its occupants committed similar acts
at a hotel, such as swapping bags and briefly visiting rooms. Id. at 371–72. In Davis, the panel
found that police permissibly stopped the defendant’s vehicle after observing the defendant leave
a meeting with a known drug dealer carrying two suspicious packages. 430 F.3d at 354–55; see also
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United States v. Hill, 195 F.3d 258, 270-73 (6th Cir. 1999) (concluding that eight factors, including
a dubious explanation for a cross-country trip, nervousness, and the cash rental of a U-Haul, justified
Terry detention); United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc) (holding that
eight factors, including the driver’s criminal record, nervousness, and lack of registration, justified
Terry detention). Although, as previous panels acknowledge, the evidentiary strength this court
requires to uphold vehicular Terry stops has not always been consistent, see United States v.
Garrido, 467 F.3d 971, 982 (6th Cir. 2006) (collecting and comparing cases), the evidence here
comfortably exceeds the reasonable suspicion threshold.
Farmer cites as shortcomings both that the troopers did not directly observe the conduct at
the hotel and that they did not “even sp[eak] to the Beachwood police prior to the stop.” True
enough, Sergeant Neff first spoke to the Beachwood investigators after he stopped Farmer. But in
deciding to make the stop, Neff relied on dispatched information collected by Sergeant Helton in
the call from the officers on stakeout. It is well-established that reasonable suspicion “need not arise
exclusively from [an officer’s] own direct observations.” Dorsey v. Barber, 517 F.3d 389, 395 (6th
Cir. 2008). Rather, “it can be derived from . . . dispatch information[] and directions from other
officers.” Id. In United States v. Hensley, 469 U.S. 221 (1985), the Supreme Court confirmed this
“commonsense” proposition when it held that officers from one jurisdiction could rely on a flyer
issued by another jurisdiction—which only described the wanted suspect and the date and location
of his alleged crime—so long as the first jurisdiction issued the flyer based on reasonable suspicion.
Id. at 232. Here, the investigators, through Helton, told Neff detailed information about Farmer and
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his suspicious acts at the hotel. But even assuming that the Beachwood investigators only requested
that the Highway Patrol stop Farmer’s vehicle, that suffices under Hensley because the Beachwood
investigators themselves had reasonable suspicion.
Moreover, there is no doubt that the police investigated their suspicions in a reasonable time
and through “minimally intrusive” means. United States v. Place, 462 U.S. 696, 706 (1983). Neff
radioed for a canine unit immediately after stopping Farmer’s vehicle, and the district court credited
the police officers’ consistent testimony that the canine unit arrived in about fifteen minutes.
Precedent firmly establishes that a detention of this length to allow a drug-detecting dog to arrive is
a permissible means of investigating suspicious conduct during a Terry stop. For example, in Davis,
the panel approved the police’s detention of a car for half an hour to allow a drug-sniffing dog to
arrive, stating that the dog’s use “was a minimally intrusive means of investigating whether the
officers’ suspicions that [the defendant’s vehicle] contained narcotics were valid.” 430 F.3d at 355.
Similarly, in United States v. Johnson, 267 F. App’x 412 (6th Cir. 2008), the court held that “a
forty-three minute [detention] is a reasonable period of time to allow police to contact a canine unit,
wait for its arrival, and have a dog check for the presence of narcotics.” Id. at 415.
Accordingly, we find that the police permissibly stopped and detained Farmer to investigate
their reasonable suspicion that he carried drugs in his vehicle.
B
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Having concluded that the district court properly rejected Farmer’s Fourth Amendment
challenge, we turn to Farmer’s claim that the government violated his due process rights by failing
to preserve radio communications related to his arrest. Farmer secured a district court order
requiring the government to preserve these records because he believed they would demonstrate his
detention’s unreasonable length. But because the United States Attorney’s Office failed to
communicate the order to the police, both Beachwood and the Highway Patrol erased the records
after thirty days, as is their routine.
To demonstrate a due process violation based on the government’s failure to preserve this
“potentially exculpatory” evidence, Farmer must show that: (1) the government acted in bad faith;
(2) the exculpatory value of the evidence was apparent before its destruction; and (3) he could not
obtain comparable evidence by other reasonably available means. United States v. Jobson, 102 F.3d
214, 218 (6th Cir. 1996) (distilling Arizona v. Youngblood, 488 U.S. 51, 56–58, (1988)).
At the least, Farmer fails to establish bad faith—i.e., “official animus” or a “conscious effort
to suppress exculpatory evidence.” Jobson, 102 F.3d at 218 (quoting California v. Trombetta, 467
U.S. 479, 488 (1984)). Both police units erased their radio communications under routine
department policy, and all officers involved consistently testified that they did not know about the
preservation order. Moreover, the government explained its failure to notify the departments: the
case transferred between prosecutors and the first negligently failed to inform the second about the
order. The district court accepted the officers’ testimony and the prosecutor’s explanation, and
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Farmer fails to offer anything on appeal to cast doubt on the district court’s conclusion. See Jobson,
102 F.3d at 218 (finding no due process violation in government’s failure to prevent destruction of
a tape where government was “negligent, perhaps even grossly negligent” but did not act in bad
faith).
Although Farmer contends that the government’s failure to follow the evidence-preservation
order alone demonstrates bad faith, such a breach can stem from a good-faith mistake as well as
something more sinister. Of course, the government’s failure to comply exposed it to the district
court’s authority to sanction that non-compliance, even in the absence of bad faith or the other
Youngblood factors. See Fed. R. Crim. P. 16(d)(2)(D) (authorizing a district court to “enter any . . .
order that is just under the circumstances” to punish violations of its discovery orders). But the
district court chose not to exercise that authority here. See United States v. Atisha, 804 F.2d 920,
924 (6th Cir. 1986) (“[Even if the government violated [a discovery order], it would still be within
the district court’s discretion to determine what the appropriate sanction—such as excluding the
evidence or awarding a continuance or mistrial—should be.”).
III
For these reasons, we affirm.
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