United States v. James Gunnell ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3234
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James Earl Gunnell
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: November 13, 2014
Filed: January 12, 2015
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Before BYE, SHEPHERD, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
James Earl Gunnell was convicted of possessing 50 grams or more of
methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 851. The district court sentenced Gunnell to 240 months’
imprisonment. Gunnell appeals the district court’s1 denial of his motion to suppress
evidence obtained during a traffic stop. Having jurisdiction to consider this appeal
under 28 U.S.C. § 1291, we affirm.
I. Background
On August 25, 2011, James Gunnell was the subject of a police investigation
that led to his arrest. Gunnell was observed driving a 2000 Kawasaki motorcycle in
Springfield, Missouri, by Drug Enforcement Agency (DEA) and Task Force Officers
(TFOs) who had information to believe Gunnell was a multi-pound dealer of
methamphetamine. TFO Justin Arnold contacted TFO Eric Hawkins and informed
him of Gunnell’s location. TFO Hawkins then contacted Springfield Police
Department Sergeant David Meyer to ask that Sgt. Meyer be in the general
surveillance area to assist if necessary. TFO Hawkins told Sgt. Meyer that Gunnell
was suspected of drug-related activity and was possibly carrying a weapon.
Sgt. Meyer was also instructed to “develop probable cause” to stop Gunnell in order
to search his person and his motorcycle, if possible. Sgt. Meyer then contacted K-9
Officer Kyle Tjelmeland and asked him to be available in the surveillance area with
his drug dog, Raider.
At approximately 2:00 p.m. the same day, Gunnell was seen leaving an
apartment building with a blue bag that he placed in the right saddlebag of his
motorcycle. Gunnell left the apartment complex and began driving on Walnut Street.
Sgt. Meyer started following Gunnell shortly after Gunnell turned onto Walnut Street,
1
The Honorable Richard E. Dorr, late United States District Judge for the
Western District of Missouri, adopting the report and recommendations of the
Honorable Matt J. Whitworth, United States Magistrate Judge for the Western District
of Missouri.
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and he paced Gunnell for approximately three quarters of a mile.2 Sgt. Meyer
testified that Gunnell was traveling 41 or 42 miles per hour, at least 10 miles per hour
over the speed limit. Sgt. Meyer stopped Gunnell’s motorcycle on Walnut Street, just
before the Kansas Expressway.
Sgt. Meyer walked up to Gunnell and asked for identification. Shortly after
Gunnell was stopped, two other officers arrived to provide support. Gunnell did not
have his driver’s license with him, so the officers took his information verbally and
ran his name through the system to check his license and to determine whether there
were any outstanding warrants for his arrest. The officers learned that Gunnell did
not have a motorcycle designation on his license and that there were no warrants for
his arrest.
Sgt. Meyer questioned Gunnell about his criminal history and travel plans and
asked for Gunnell’s consent to search his person and motorcycle. Gunnell declined
to provide consent for either search. Sgt. Meyer conducted a pat-down search of
Gunnell and placed him in handcuffs.3
Officer Tjelmeland, after hearing over the police scanner that Sgt. Meyer had
made the traffic stop, went with his drug dog, Raider, directly to the location of the
stop. When he arrived at the scene, Officer Tjelmeland walked Raider around the
motorcycle. Raider alerted near the right rear compartment of Gunnell’s motorcycle
by biting and scratching at the area where Gunnell had placed the blue bag. Officer
2
According to Sgt. Meyer: “Pacing the vehicle is not as an exact science like
a radar gun or anything like that, but you basically get behind a vehicle and you travel
at a speed to where you’re not gaining on the vehicle and you’re not losing ground
on the vehicle, so you’re basically going the same speed and you estimate how fast
the vehicle is going.”
3
Gunnell does not assert that the fact he was placed in handcuffs affects the
court’s analysis regarding the length, or purpose, of the traffic stop.
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Tjelmeland and Sgt. Meyer then searched the motorcycle because of Raider’s alert,
and Sgt. Meyer located the blue bag in the right rear saddlebag. The blue bag
contained approximately one pound of methamphetamine, clear plastic baggies, and
a set of digital scales. Sgt. Meyer placed Gunnell under arrest. Gunnell was charged
by superseding indictment with possession of 50 grams or more of methamphetamine
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
Gunnell filed a motion to suppress the evidence seized during the traffic stop.
A hearing was held on Gunnell’s motion, and the court denied the motion. Gunnell
pleaded guilty, reserving his right to appeal the denial of his motion to suppress. He
was sentenced to 240 months’ imprisonment and 10 years’ supervised release.
Gunnell timely appealed.
II. Discussion
“In reviewing the denial of a motion to suppress, we review a district court’s
factual determinations for clear error and its legal conclusions de novo.” United
States v. Ovando-Garzo, 752 F.3d 1161, 1163 (8th Cir. 2014). “We affirm unless the
denial of the motion is unsupported by substantial evidence, based on an erroneous
interpretation of the law, or, based on the entire record, it is clear that a mistake was
made.” United States v. Douglas, 744 F.3d 1065, 1068 (8th Cir. 2014) (quotation
omitted).
A. The Traffic Stop
Gunnell contends the traffic stop initiated by Sgt. Meyer was a warrantless
seizure in violation of Gunnell’s constitutional rights. “Temporary detention of
individuals during the stop of an automobile by the police, even if only for a brief
period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the
meaning of [the Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809–
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10 (1996). “As a general matter, the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic violation has occurred.”
Id. at 810. But “[s]ubjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.” Id. at 813. “Once an officer has probable cause, the
stop is objectively reasonable and any ulterior motivation on the officer’s part is
irrelevant.” United States v. Frasher, 632 F.3d 450, 453 (8th Cir. 2011) (quotation
omitted). “Similarly, it is irrelevant that the officer would have ignored the violation
but for his ulterior motive.” Id.Sgt. Meyer testified at the suppression hearing that he stopped Gunnell because
he believed Gunnell had committed a traffic violation by driving at least ten miles per
hour over the speed limit. The court found Sgt. Meyer, who testified he used a
technique called “pacing” to estimate Gunnell’s speed, was credible and therefore
concluded that the traffic stop was supported by probable cause. Even if Sgt. Meyer’s
primary intent was to stop Gunnell in order to further a drug investigation, the traffic
violation provided probable cause to support the stop, and “any ulterior motivation
on [Sgt. Meyer’s] part is irrelevant.” Id. The district court did not err in finding the
traffic stop was supported by probable cause and was not unlawfully pretextual.
B. Detention
Gunnell argues that he was unconstitutionally detained by law enforcement
while the drug dog was brought to the scene of the traffic stop.4 As we have
explained:
4
To the extent Gunnell argues his detention was unlawful because the stop
itself was improper, we have already concluded the district court did not err in finding
probable cause for the initial traffic stop.
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[I]f a defendant is detained incident to a traffic stop, the officer
does not need reasonable suspicion to continue the detention until the
purpose of the traffic stop has been completed. Occupants . . . may be
detained while the officer completes a number of routine but somewhat
time-consuming tasks related to the traffic violation. These tasks can
include a computerized check of the vehicle’s registration and the
driver’s license and criminal history, as well as the preparation of a
citation or warning. The officer may also ask questions about the
occupant’s travel itinerary. However, once an officer finishes the tasks
associated with a traffic stop, the purpose of the traffic stop is complete
and further detention . . . would be unreasonable unless something that
occurred during the traffic stop generated the necessary reasonable
suspicion to justify further detention. Whether a detention is reasonable
is a fact-intensive question which is measured in objective terms by
examining the totality of the circumstances.
Ovando-Garzo, 752 F.3d at 1163–64 (internal quotation marks and citations omitted)
(alteration in original); see also United States v. Bloomfield, 40 F.3d 910, 916–17
(8th Cir. 1994) (“[A] de facto arrest occurs when the officers’ conduct is more
intrusive than necessary for an investigative stop.” (quotation marks omitted)).
In this case, Sgt. Meyer called K-9 Officer Tjelmeland before he initiated the
traffic stop, asking Officer Tjelmeland to be ready and nearby for a possible drug
sniff in the area. Shortly thereafter, Sgt. Meyer pulled over Gunnell. Before he got
out of his squad car to approach Gunnell, Sgt. Meyer called dispatch to report the
stop. As soon as Officer Tjelmeland heard about the stop on police radio, he went
directly to the location of the stop. Officer Tjelmeland testified that it took “five
minutes or less” for him to arrive at the scene.
Meanwhile, Sgt. Meyer approached Gunnell and asked him for identification.
Because Gunnell did not have a physical form of identification, Sgt. Meyer verbally
took his information. Sgt. Meyer testified that while another officer ran Gunnell’s
information, he asked Gunnell “a variety of questions that are pretty standard for
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traffic stops,” including where Gunnell was going and whether he had any prior
arrests. Based on the information he had previously received from TFO Hawkins,
he also conducted a pat down search of Gunnell. And he asked Gunnell for
permission to search his person and his motorcycle. Gunnell refused both requests.
Gunnell argues that his detention was prolonged unnecessarily waiting for the
drug dog to arrive for the sniff. The undisputed facts of this case, however, show
otherwise. Though law enforcement may not prolong a traffic stop, and thus the
traveler’s detention, beyond what is necessary to complete the stop, the undisputed
evidence shows that is not what happened here. In this case, the unrefuted testimony
is that Officer Tjelmeland and his drug dog arrived while the officers were still
conducting the traffic stop. Sgt. Meyer testified that the time it took for Officer
Tjelmeland and Raider to arrive at the scene did not exceed the time it took the other
officers to run Gunnell’s information through the computer in the course of the traffic
stop. In other words, the officers were still “complet[ing] the purpose” of the stop
when Officer Tjelmeland and Raider arrived.5 United States v. Suitt, 569 F.3d 867,
870 (8th Cir. 2009) (quotation omitted). Given the facts and timing in this case, the
district court did not err in concluding that officers did not unlawfully prolong the
traffic stop (and Gunnell’s detention) beyond what was necessary to complete the
stop.
C. Search
Gunnell asserts Raider’s alert to the presence of drugs on his motorcycle was
unreliable because Officer Tjelmeland and Raider had not undergone drug detection
training as a pair but, rather, received certification individually before being paired
5
When expressly asked, Sgt. Meyer also stated that he did not “drag his feet”
when conducting the traffic stop in order to give Officer Tjelmeland and Raider
additional time to arrive at the scene.
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to work in the field. “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, 133 S. Ct. 1050,
1055 (2013) (quotation marks, alterations, and quotation omitted). “In evaluating
whether the [government] has met this practical and common-sensical standard, we
have consistently looked to the totality of the circumstances.” Id.With regard to the reliability of drug dogs, “[t]he better measure of a dog’s
reliability . . . comes away from the field, in controlled testing environments.” Harris,
133 S. Ct. at 1057. “For that reason, evidence of a dog’s satisfactory performance in
a certification or training program can itself provide sufficient reason to trust his
alert.” Id. “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. “The
question—similar to every inquiry into probable cause—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. at 1058.
In this case, Officer Tjelmeland and Raider each underwent a 13-week training
program before receiving their certifications to work as a drug-detection team. Once
they were paired together in July 2011, they had additional training every Monday;
and they had been working as a team in the field since that time, which was
approximately six weeks prior to Gunnell’s traffic stop. The government did not
present records showing Raider’s performance in the field, and Officer Tjelmeland
did not have information about Raider’s in-field performance prior to July 2011; but
Officer Tjelmeland did testify that he “never had a false alert with Raider [when he]
used him.”
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In Florida v. Harris, the Supreme Court explicitly stated that evidence of a
drug-detection dog’s performance in the field, or circumstances surrounding a
particular alert, may sometimes be relevant to the issue of probable cause, but noted
that such evidence is also susceptible to misinterpretation. 133 S. Ct. at 1057. In any
event, in-field performance records are not necessary to a finding of probable cause
in every case. See id. at 1058 (“If the State has produced proof from controlled
settings that a dog performs reliably in detecting drugs, and the defendant has not
contested that showing, then the court should find probable cause.”). Gunnell failed
to contest either the reliability of Raider’s performance in a controlled testing
environment or the validity of his (or Officer Tjelmeland’s) certification. He also
offered nothing to call into question the particular alert at issue in this case. Under
such circumstances, the district court did not err in concluding Raider’s alert
supported a finding of probable cause to search Gunnell’s motorcycle compartment.
III. Conclusion
For the reasons above, we affirm Gunnell’s conviction and sentence.
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