United States v. Garrett, Jeffrey ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 14, 2005
Decided July 11, 2005
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3922
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Southern District of
Plaintiff-Appellee, Indiana, Indianapolis Division.
v. No. 1:03CR00062-001
JEFFREY GARRETT, Sarah Evans Barker,
Defendant-Appellant. Judge.
ORDER
Jeffrey Garrett appeals the district court’s denial of his pretrial motion to
suppress drugs, a gun, and certain statements that he contends are the fruits of an
unlawful detention. He argues that police officers unlawfully detained him during a
traffic stop so that they could call in a drug-detection dog to sniff his car. Garrett
also argues that even if he was not illegally detained for the dog sniff, the dog’s
positive alert did not provide the officers with probable cause to search his car. We
disagree on both counts and affirm his conviction.
From November 2002 until March 2003, Detective Clifton Jones of the
Indianapolis Police Department investigated Garrett for dealing crack. Jones
conducted surveillance of Garrett, and he testified during the suppression hearing
that he had a confidential informant purchase crack from Garrett on four different
occasions between November 2002 and January 2003. Although Detective Jones
believed he had probable cause to arrest Garrett based on his investigation, he did
not obtain an arrest warrant and he delayed making the arrest until the end of
March. Although it is not clear why Jones never obtained an arrest warrant, he did
explain at the suppression hearing why he waited two months before making the
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arrest. He said that the delay helped to protect the integrity of the investigation
and the identity of the confidential informant. Detective Jones preferred to use a
traffic stop so that observers would not realize that Garrett’s encounter with the
police had anything to do with an ongoing drug investigation.
On March 26 Detective Jones was ready to make the arrest, so he instructed
Detective Wilkerson and Sergeant McDonald to detain Garrett with a pretextual
traffic stop. Detective Jones told the other officers that Garrett had been involved
in four drug sales to a confidential informant, that he had a serious criminal history
and violent tendencies, that he was likely to be armed, and that he would be driving
a 1992 green Mercury Cougar with a hidden compartment. Sergeant McDonald
observed Garrett driving 35 mph in a 25-mph school zone and pulled him over.
Detective Wilkerson arrived on the scene “almost immediately” to provide back-up.
Garrett and a passenger were ordered out of the car and asked several
questions. Garrett initially gave consent to search his car but then withdrew it. At
some point in the stop after Garrett withdrew his consent, Detective Wilkerson
called for Officer Matthew Mielke and Cade, his drug detection dog. It is not clear
how long into the stop they were called, but they arrived within minutes of the call.
Cade was walked around the vehicle and the dog alerted to the presence of narcotics
at the front passenger side of the vehicle. There is no information in the record
about how long the traffic stop had lasted by the time Cade alerted. The district
court did find, however, that “the traffic violation ticketing process . . . took twenty
(20) minutes from start to finish.” At some point the police gave Garrett a written
warning for speeding. Following the positive dog alert, Detective Wilkerson
searched inside Garrett’s car and found a hidden compartment containing 270
grams of crack, a small amount of marijuana, and a loaded revolver.
Detective Jones arrived on the scene, administered Miranda warnings to
Garrett and the passenger, and asked them if they wanted to speak. They did not,
so both were taken to the police station. At the station Garrett changed his mind
and spoke with Detective Jones. He admitted responsibility for the drugs and gun.
Garrett moved to suppress the drugs, gun, and his statements on the theory
that this traffic stop was initially a valid Terry stop but that the officers exceeded
the permissible scope of a Terry stop when they kept him long enough allow the dog
to sniff the car. He also argued at the hearing that the dog sniff did not provide the
officers with probable cause to search the car because the government never proved
that Cade was reliable.
The district court refused to suppress the evidence. The court credited
Sergeant McDonald’s testimony that he had observed Garrett speeding by following
him and keeping pace with his car. The court further concluded that, because it
took only two minutes for Officer Mielke and Cade to arrive on the scene after they
were called, Garrett was not unreasonably detained awaiting the dog sniff. Finally,
the court concluded that because Officer Mielke testified that Cade was enlisted “to
perform a task well within the scope of his training and capabilities” and that the
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dog had received a 100% score on a recent proficiency test, Cade’s alert provided the
officers with probable cause to believe that drugs were present in the car. The court
denied Garrett’s motion to suppress. After a jury trial, Garrett was convicted of two
counts of possession with intent to distribute 50 grams or more of crack. See 21
U.S.C. § 841(a)(1), (b)(1)(A)(iii).
On appeal Garrett first argues that the police extended the traffic stop longer
than necessary to write him a warning ticket and that the unnecessary detention
amounted to an illegal arrest. He contends that Sergeant McDonald delayed in
writing him the warning so that Officer Mielke and Cade would have time to arrive
and check the car for drugs.
The Supreme Court recently clarified the standard for assessing the
constitutionality of traffic stops involving dog sniffs. See Illinois v. Caballes, 125 S.
Ct. 834 (2005). In Caballes police officers stopped a suspect based on probable
cause to believe that he was speeding. Id. at 836-37. The defendant was detained
for 10 minutes while one officer wrote him a warning citation and another walked a
drug sniffing dog around the car. Id. at 836. In analyzing whether the defendant
was illegally detained during the encounter, the Court announced the rule that: “A
seizure that is justified solely by the interest in issuing a warning ticket to the
driver can become unlawful if it is prolonged beyond the time reasonably required to
complete that mission.” Caballes, 125 S. Ct. at 837. Accepting the state court’s
conclusion that the “duration of the traffic stop . . . was entirely justified by the
traffic offense and the ordinary inquiries incident to such a stop,” the Court
concluded that no illegal seizure occurred.
Garrett distinguishes his detention from the one in Caballes, arguing that
the length of his detention was not justified by the traffic offense and the ordinary
inquiries that are part of traffic stops. The government argues that the length of
Garrett’s detention was a reasonable amount of time for the police to respond to his
speeding offense. We disagree with the parties that the current record allows us to
answer the question of whether the length of Garrett’s detention was justified by
the traffic offense. We also disagree that Caballes provides the proper framework
for analyzing this traffic stop.
The current record does not even permit us to decide whether, in order to
wait for the drug dog to arrive, the police officers delayed the traffic stop longer than
necessary to address Garrett’s traffic offense. Although the record reveals that the
entire “traffic violation ticketing process” took 20 minutes and that the drug dog
arrived within minutes of being called, neither party has provided any information
about how long into the stop the dog alerted. As soon as a dog alerts during a traffic
stop and provides the officers with probable cause to believe that a car contains
drugs, the officers have a new justification to extend a traffic stop. See Berkemer v.
McCarty, 468 U.S. 420, 439-40 (1984) (stop can be extended if detainee’s answers to
question provide probable cause to arrest him); Florida v. Royer, 460 U.S. 491, 506
(1983) (positive dog alert would justify turning investigative detention into arrest).
The part of the traffic stop that matters for the Caballes inquiry is the time leading
No. 04-3922 Page 4
up to the dog alert, and that detail was not discussed by any witness at the
suppression hearing. Contrary to the district court’s suggestion, it does not matter
how quickly a dog arrives after being called because a suspect might already be
illegally detained by the time of the call. In this case, if Cade alerted within 5 or 10
minutes of Garrett being pulled over, that would likely be a reasonable amount of
time for McDonald to still be responding to the traffic violation. But if the alert
happened 19 minutes into the stop, perhaps not. See People v. Cox, 782 N.E.2d 275,
279-80 (Ill. 2002) (cited with approval in Caballes, 125 S. Ct. at 837, and holding
that 15-minute stop to issue ticket or citation for missing rear registration light was
an unreasonably long detention). Further factual findings would be necessary on
the issues of when Cade alerted, what Sergeant McDonald was doing until then,
and whether he artificially or unreasonable extended the duration of the detention.
But that inquiry is unnecessary to decide this appeal because we do not think that
Caballes even provides the proper framework for analyzing the facts of this case.
This case is different from Caballes because that case involved a traffic stop
“justified solely by the interest in issuing a warning ticket” to a driver for a traffic
violation, Caballes, 125 S. Ct. at 837, while this case involves an admittedly
pretextual traffic stop. The officers here were not primarily interested in
apprehending Garrett for a traffic offense; they wanted to arrest him for his
previous drug sales. There is no reason to conclude, then, that the duration of
Garrett’s detention before the dog alert had to be strictly limited to the time
necessary to issue a written warning. After the warning citation was written, the
officers still had another justification for detaining Garrett. Based on the four
controlled buys, the police officers had probable cause to believe that he committed
several felonies, and they wanted to arrest him for those felonies. Had the officers
apprehended Garrett while he was walking down the street, he would not be
claiming that he was illegally detained. Neither would the detention be vulnerable
to challenge if the officers had simply obtained a warrant before conducting the
stop. The fact that the officers chose to arrest Garrett by way of a traffic stop has
turned out to be a red herring in the case, so Caballes does not provide the most
relevant legal doctrine for analyzing this encounter.
The more relevant legal rule is that the Fourth Amendment permits
warrantless public arrests based upon probable cause. See Maryland v. Pringle,
540 U.S. 366, 370 (2003); United States v. Watson, 423 U.S. 411, 423-24 (1976).
Garrett admits that the officers had probable cause to arrest him based on the
previous controlled drug buys. He argues, however, that they did not arrest him for
those drug sales so they were thus limited to the confines of a traffic stop. He relies
on Knowles v. Iowa, 525 U.S. 113 (1998), for the proposition that the officers’
conduct must be evaluated in terms of what they did do, not what they could have
done. But the officers testified that they did intend to detain Garrett based on his
previous drug sales. This is not a case where an officer happened to pull Garrett
over for speeding and was unaware that other officers had probable cause to arrest
him for a different offense. Sergeant McDonald knew about the drug sales and
testified that he pulled Garrett over to help Detective Jones apprehend Garrett for
those sales. Garrett’s premise that the officers did not actually detain him for the
No. 04-3922 Page 5
drug sales is at odds with the record. Because the police had probable cause to
arrest Garrett for felony offenses, they were justified in making this public
warrantless arrest of him.
Garrett also argues on appeal that the search of his car was unlawful because
the dog alert did not provide the officers with probable cause to believe that drugs
were present in his vehicle. The government relies on the automobile exception
from Carroll v. United States, 267 U.S. 132, 153-56 (1925), as one possible
justification for the search of Garrett’s car. That exception allows a warrantless
search of a car when officers have probable cause to believe the car contains
contraband or evidence of a crime. Id. Garrett contends that the dog alert in this
case did not provide probable cause because there was no evidence that the dog was
reliable. He admits that the government submitted evidence that Officer Mielke
and Cade received a 100-percent score for finding all of the hidden drugs during a
February 2003 recertification examination, but he argues that the government
never offered evidence on whether Cade gave any false positive alerts during the
test. The recertification report is in the record and it clearly indicates that Cade
gave no false positive alerts in obtaining his 100-percent score. Garrett’s argument
is squarely rebutted by the report. Cade’s certification in a training school and 100-
percent accuracy in a recent proficiency examination supports the district court’s
conclusion that Cade’s alert was reliable. See United States v. Limares, 269 F.3d
794, 797-98 (7th Cir. 2001) (a dog alert from a dog that is somewhere between 62
and 93 percent accurate is enough to provide probable cause).
For the foregoing reasons, we AFFIRM the judgment of the district court.